- 1 - NC: 2025:KHC-K:1980 MFA No. 201582 of 2022 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 27TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE C.M. JOSHI MISCL. FIRST APPEAL NO.201582/2022(MV-I) BETWEEN: MALLIKARJUNA S/O BHIMARAYA WALIKAR, AGE: 38 YEARS, OCC: AGRICULTURE & COOLIE (NOW NIL), R/O HEBBAL (B), TQ. SHORAPUR, DIST. YADGIRI. …APPELLANT (BY SRI KRUPA SAGAR PATIL, ADVOCATE) AND: 1. BHIMANNA S/O MANAPPA NAIKODI, AGE: 38 YEARS, OCC: AGRICULTURE & OWNER OF VEHICLE, R/O GUNDALAGERA, TQ. SHORAPUR, DIST. YADGIRI-585 224. Digitally signed by SHIVALEELA DATTATRAYA UDAGI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:1980 MFA No. 201582 of 2022 2. CHOLAMANDALAM MS GENERAL INS. CO. LTD., THROUGH ITS BRANCH MANAGER, 1ST FLOOR, KALABURAGI SQUARE, DESAI CROSS, DESHAPANDE NAGAR, HUBBALLI-580 143. …RESPONDENTS (BY SRI MANJUNATH MALLAYYA SHETTY, ADV., FOR R2; R1-SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 09.03.2022, PASSED BY THE SENIOR CIVIL JUDGE AND MACT, SHORAPUR IN FILE BEARING MVC NO.290/2019, BY ENHANCING THE COMPENSATION AS PRAYED FOR AND FIXING THE LIABILITY ON THE 2ND RESPONDENT TO PAY THE COMPENSATION AMOUNT. THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE C.M. JOSHI ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE C.M. JOSHI) Though this matter is slated for admission, with the consent of both the parties, it is taken up for final disposal. - 3 - NC: 2025:KHC-K:1980 MFA No. 201582 of 2022 2. Heard learned counsel for the appellant/petitioner and the learned counsel for respondent No.2/Insurance Company. 3. Being aggrieved by the judgment and award dated 09.03.2022 passed in MVC No.290 of 2019 on the file of Senior Civil Judge and MACT, Shorapur (for short ‘the Tribunal’), the petitioner/claimant is before this Court seeking enhancement of the compensation amount. 4. The factual matrix of the case is that on 29th August, 2013 at about 3:30 p.m. when the petitioner was going towards Hunasagi Village in an auto rickshaw bearing registration KA-33/8043, the driver of the said auto drove the same in negligent manner and the vehicle turned turtle when he swerved the vehicle to one side, resulting in the petitioner sustaining in grievous injuries. Immediately, he was shifted to C.H.C. Husanasagi and after first aid, he was shifted to Matoshree Hospital, Vijayapur, and thereafter to Orthopedic Hospital, Miraj. He was treated as inpatient for about 20 days and had to undergo surgeries. Claiming that at the time of accident the petitioner was aged about 35 - 4 - NC: 2025:KHC-K:1980 MFA No. 201582 of 2022 years and earning Rs.18,000/- per month, appellant filed a claim petition before the Tribunal seeking adequate compensation. 5. On being served with the notice, the respondent Nos.1 and 2 appeared before the Tribunal through their counsels and filed written statements. The respondent No.1 contended that the driver was having valid driving licence and any compensation to be paid to the petitioner has to be saddled upon respondent No.2 in view of the insurance policy issued by it. 6. Respondent No.2 - Insurance Company contended that the driver of the auto rickshaw was not having valid and effective driving licence and the terms and conditions of the policy were violated and the passengers traveling in the said auto rickshaw were beyond permitted capacity, and therefore disputed its liability to pay the compensation. Inter alia, the age, income and occupation of the petitioner was also denied. - 5 - NC: 2025:KHC-K:1980 MFA No. 201582 of 2022 7. The Tribunal framed appropriate issues and the petitioner was examined as PW1. The Doctor, who assessed the disability of the petitioner, was examined as PW2 and Exs.P1 to P16 were marked in evidence. The respondent No.2 examined its official as RW1 and Exs.R1 and R2 were marked. 8. After the arguments, the Tribunal came to the conclusion that the vehicle was being plied beyond the limits contained in the permit, determined compensation of Rs.3,70,217/- and fastened the liability upon respondentNo.1. The compensation was awarded under the following heads: 1 Pain and suffering Rs.10,000/- 2 Medical expenses Rs.1,28,817/- 3 Conveyance, attendant, diet- food and miscellaneous expenses Rs.10,000/- 4 Loss of income during laid up period Rs.14,000/- 5 Loss of future income on account of permanent disability Rs.1,34,400/- 6 Loss of amenities, life comforts and expectancy of life Rs.10,000/- Total Rs.3,07,217/- - 6 - NC: 2025:KHC-K:1980 MFA No. 201582 of 2022 9. Aggrieved by the same, the petitioner is before this Court, contending that the compensation amount is very meager. 10. Having heard the arguments of the learned counsel appearing for the appellant and the learned counsel appearing for the Insurance Company, perused the material available on record. Though respondent No.1 served was served with notice, has not appeared before this Court. 11. Learned counsel appearing for the appellant submits that the Tribunal failed to appreciate that the auto rickshaw had the permit, but, the conditions of the permit were violated. Therefore, such violation cannot be a formulated violation of the policy, as held in the case of Abdul Rouf S/o. Mohd. Rasool V/s. Megharaj Mehdole S/o. Khuchand in MFA No.201648/2015 and connected matters decided by the Division Bench of this Court 26th November 2020. - 7 - NC: 2025:KHC-K:1980 MFA No. 201582 of 2022 12. He also distinguished the judgment of the Apex Court in the case of Amrit Paul Singh V/s Tata AIG General Insurance Co. Ltd.1. It was a case of ‘No Permit’ wherein, an order of ‘pay and recover’ was passed by the Apex Court. Therefore, he submits that the liability should have been fastened upon respondent No.2. Further, he submits that the compensation awarded by the Tribunal is on the lower side. 13. Per contra, learned counsel appearing for respondent No.2 - Insurance Company would submit that the liability fastened upon respondent No.1 is proper and correct, and he submits that the ratio laid down by the Apex Court in the case of Amrit Paul Singh referred supra would be applicable. Regarding quantum of compensation, he defends the impugned judgment, saying that there is no need for interference regarding quantum. 14. The judgment of the Division Bench of this Court in the case of Abdul Rouf (referred supra) in para 7 as held as under: 1 (2018) 7 SCC 558 - 8 - NC: 2025:KHC-K:1980 MFA No. 201582 of 2022 “7. The insurance company has not seriously disputed the accident, involvement of the offending vehicle in the same and also the liability to satisfy the award amount. However, grievance of the learned counsel for the appellant-insurance company is that the direction of the learned Tribunal to satisfy the award amount entirely by the insurance company without giving a further direction to recover the same from the owner of the offending vehicle in the factual background that the accident has taken place within the State of Andhra Pradesh where the offending vehicle had no permit to ply is clearly unjustified. The fact that the offending vehicle was having valid permit to ply in the State of Maharashtra is not in dispute. Further it was brought to our notice that Ex.R7 (policy of Insurance) does not contain any term regarding the aspect of permit. The observation of a co-ordinate bench of this Court in MFA No.30752/2011 C/W MFA No.30753/2011 and MFA No.30388/2012 (MV) dated 11.07.2018 at para-10 reads as follows: "There is no dispute about the autorickshaw having insurance coverage as on the date of accident; according to the insurance company, since six passengers travelled in it and that the accident occurred at a place beyond the area permitted for plying and therefore its liability to indemnify the owner gets exonerated. It is not possible to accept this argument. It is not the case that there was no permit at all for the autorickshaw. It had a valid permit, but it was taken beyond the permitted limit. There is some difference between the two. If there is no permit at all, or if a transport vehicle is - 9 - NC: 2025:KHC-K:1980 MFA No. 201582 of 2022 used for a purpose not allowed by the permit as envisaged in S.149 (2) (a) (i) (c), the insurance company need not indemnify the liability of the insured for violation of policy condition. But where a vehicle is taken beyond the limits, it cannot be said that there 2020:KHC-K:4655-DB 16 is violation of policy condition, it is contravention of permit condition which is punishable according to S.192A of the Motor Vehicles Act.” ” 15. It is pertinent to note that the judgment of the Apex Court in the case of Amrit Paul Singh has very well discussed the facts regarding no permission for the lorry, which was very freshly registered and it met with an accident. In the said case, the Apex Court has observed in Para No.24 as below: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place - 10 - NC: 2025:KHC-K:1980 MFA No. 201582 of 2022 without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] and Lakhmi Chand [Lakhmi Chand v. Reliance General Insurance, (2016) 3 SCC 100 : (2016) 2 SCC (Civ) 45] in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 - 11 - NC: 2025:KHC-K:1980 MFA No. 201582 of 2022 SCC (Cri) 733] and other cases pertaining to pay and recover principle.” 16. In view of the Division Bench of this Court having clearly discussed all aspects the liability fastened upon respondent No.1 by the Tribunal is not sustainable, and it is respondent No.2 - Insurance Company, which has to pay compensation amount. 17. Learned counsel for the appellant also relied on the judgment in the case of Dyamawwa Vs. Lalsab and Ors.,2 where the division bench of this court has observed that not indicting the driver in the charge sheet regarding non-possessing of driving licence or violating the conditions of the permit would result in a presumption that there were no such violations. 18. Coming to the question of quantum, the petitioner has sustained the fracture of right superior and inferior rami of the pelvis with pubic sympysis diastesis, compression fracture of the L5 vertebrae and was treated 2 ILR 2023 KARNATAKA 257 - 12 - NC: 2025:KHC-K:1980 MFA No. 201582 of 2022 surgically with ORIF with DCP plate with infix application done for pelvis fracture and he was inpatient from 06.09.2013 to 18.09.2013. He also visited for follow up treatment. It was stated even in the petition that petitioner is suffering with pain and weakness in the right lower limb, pain and restricted movement in the right hip joint, knee joint and ankle joint, respectively, and there is pain and tenderness in the pelvic and gluteal region. The said difficulties faced by him were also stated and the PW2 after assessing the disability has opined that there is 60% disability to the pelvis and 20% to the lumbar region. As such, he opined that whole body disability is 30%. 19. It is relevant to note that the PW2 states about the physical disability and the Tribunal should have assessed the functional disability of the petitioner with reference to his age and occupation. The Tribunal without appreciating the age and occupation, held that 1/3 of it has to be accepted and as such, held the functional disability at 10%. It is evident that when there is disability of 60% to the pelvis and - 13 - NC: 2025:KHC-K:1980 MFA No. 201582 of 2022 20% to the lumbar region, in the opinion of this Court, the functional disability would be 20%. 20. There is no dispute regarding notional income, which was considered by the Tribunal. Therefore, the loss of future income on account of disability is calculated as Rs.7,000/- x 12 x 16 x 20% = Rs.2,68,800/-. 21. There being two fractures of pelvis and lumbar region, it would be proper to award a sum of Rs.45,000/- under the head of pain and sufferings. 22. The petitioner being resident of Shorapur Taluk, had to take treatment in a Hospital at Miraj. Therefore, the compensation under the heads of conveyance, attendant’s charges and miscellaneous expenses is enhanced from Rs.10,000/- to Rs.25,000/-. 23. The Tribunal has awarded a sum of Rs.14,000/- under the head of loss of income during laid up period. The same is considered for three months, which comes to Rs.7,000/- x 3 = Rs.21,000. - 14 - NC: 2025:KHC-K:1980 MFA No. 201582 of 2022 24. The petitioner has to suffer the injuries inflicted on him for the rest of his life, and therefore the compensation under the head of loss of amenities is enhanced to Rs.40,000/-. 25. The compensation awarded by the Tribunal towards medical expenses at Rs.1,28,817/- is just and proper and does not call for any indulgence by this Court. 26. In the result, the appeal deserves to be allowed in part and the appellant-petitioner is entitled for total compensation of Rs. 5,28,617/- as below as against Rs.3,07,217/- awarded by the Tribunal: Sl. No. Heads Award by the Tribunal Award by this Court 1 Pain and suffering Rs.10,000/- Rs.45,000/- 2 Medical expenses Rs.1,28,817/- Rs.1,28,817/- 3 Conveyance, attendant, diet-food and miscellaneous expenses Rs.10,000/- Rs.25,000/- 4 Loss of income during laid up period Rs.14,000/- Rs.21,000/- 5 Loss of future income on account of permanent disability Rs.1,34,400/- Rs.2,68,800/- - 15 - NC: 2025:KHC-K:1980 MFA No. 201582 of 2022 6 Loss of amenities, life comforts and expectancy of life Rs.10,000/- Rs.40,000/- Total Rs.3,07,217/- Rs.5,28,617/- Less: Award by the Tribunal Rs.3,07,217/- Total enhancement Rs.2,21,400/- 27. Hence, the following: ORDER i) The petition is allowed in part; ii) The impugned judgment and award passed by the Tribunal is hereby modified; iii) The petitioner is entitled for a sum of Rs.2,21,400/- in addition to what has been awarded by the Tribunal, along with interest at the rate of 6% per annum from the date of petition till the date of deposit. iv) The entire compensation amount, including the compensation awarded by the Tribunal has to be deposited by respondent No.2 within a period of - 16 - NC: 2025:KHC-K:1980 MFA No. 201582 of 2022 six weeks, from the date of receipt of a copy of this judgment. v) The rest of the order passed by the Tribunal remains unaltered. Sd/- (C.M. JOSHI) JUDGE SBS List No.: 1 Sl No.: 44 CT: AK`