- 1 - NC: 2025:KHC-D:1423 MFA No. 101968 of 2016 C/W MFA No. 102297 of 2016 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 24TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.101968 OF 2016 (MV) C/W MISCELLANEOUS FIRST APPEAL NO.102297 OF 2016 IN M.F.A. NO.101968 OF 2016 BETWEEN: M/S. NEW INDIA ASSURANCE CO. LTD., BY ITS DIVISIONAL MANAGER, EDIGA HOSTEL COMPLEX, DOUBLE ROAD, BALLARI, REP: DULY CONSTITUTED ATTORNEY(S) NEW INDIA ASSURANCE COMPANY LIMITED, T.P. HUB, SRINATH COMPLEX, II FLOOR, NEW COTTON MARKET, HUBBALLI-580 022. …APPELLANT (BY SRI M.K. SOUDAGAR, ADVOCATE) AND: 1. SMT. NAGAMMA W/O. LATE BASAPPA, SINCE DECEASED LRS OF RESPONDENT NOS.2 TO 4 ALREADY ON RECORD. 2. SRI BASAVARAJ S/O. LATE BASAPPA, AGE: 43 YEARS, OCC: COOLIE, R/O: AMALAPURA VILLAGE, TQ: KUDLIGI, DIST: BALLARI. 3. SRI SIDDALINGAPPA S/O. LATE BASAPPA, AGE: 42 YEARS, OCC: COOLIE, R/O: AMALAPURA VILLAGE, TQ: KUDLIGI, DIST: BALLARI. 4. SRI NAGARAJ S/O. LATE BASAPPA, AGE: 37 YEARS, OCC: COOLIE, R/O: AMALAPURA VILLAGE, TQ: KUDLIGI, DIST: BALLARI. 5. SRI KHANDE RAO DHANAGAR S/O. DHANAGAR, AGE: 28 YEARS, OCC: DRIVER OF THE LORRY, Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:1423 MFA No. 101968 of 2016 C/W MFA No. 102297 of 2016 R/O: KATEVADA VILLAGE, PALE BARAMATHI TALUK, PUNE RURAL, MAHARASHTRA STATE. 6. SRI ANIL ARJUN THOMARE S/O. ARJUN, AGE: 43 YEARS, OCC: OWNER OF THE LORRY, R/O: NO.243, CENTRAL FACILITY BUILDING NO.1, APMC MARKET, SECTOR NO.19, VASHI, NAVI MUMBAI, THANE DISTRICT, MAHARASHTRA STATE. …RESPONDENTS (R1-DIED (R2 TO R4 ARE LR’S ALREADY ON RECORD); NOTICE TO R2, R3 AND R4 ARE SERVED; R5 AND R6-SERVICE OF NOTICE DISPENSED WITH) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, PLEASED TO SET ASIDE THE JUDGMENT & AWARD DATED 28.04.2016, PASSED IN MVC.NO.302/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE CUM MEMBER VI-MACT, AT KUDLIGI, ALLOWING THIS APPEAL WITH COST AND GRANT SUCH OTHER AND/OR FURTHER RELIEF’S AS THIS COURT DEEMS FIT TO GRANT IN THE FACTS AND CIRCUMSTANCES OF THE CASE IN THE INTEREST OF JUSTICE AND EQUITY. IN M.F.A. NO.102297 OF 2016 BETWEEN: 1. SMT. NAGAMMA W/O. LATE BASAPPA, AGED ABOUT 52 YEARS, OCC: HOUSEWIFE, (WIFE OF THE DECEASED BASAPPA) 2. BASAVARAJ S/O. LATE BASAPPA, AGED ABOUT 42 YEARS, OCC: COOLIE, (SON OF THE DECEASED BASAPPA) 3. SIDDALINGAPPA S/O. LATE BASAPPA, AGED ABOUT 41 YEARS, OCC: COOLIE, (SON OF THE DECEASED BASAPPA) 4. NAGARAJ S/O. LATE BASAPPA, AGED ABOUT 36 YEARS, OCC: COOLIE, (SON OF THE DECEASED BASAPPA) ALL ARE R/O: AMALAPURA VILLAGE, KUDLIGI TALUK, BALLARI DISTRICT-583101. …APPELLANTS (BY SRI Y. LAKSHMIKANT REDDY, ADVOCATE) - 3 - NC: 2025:KHC-D:1423 MFA No. 101968 of 2016 C/W MFA No. 102297 of 2016 AND: 1. KHANDE RAO DHANAGAR S/O. DHANAGAR, AGED ABOUT 27 YEARS, DRIVER OF THE LORRY BEARING REGN NO.KA-22/D-4397, R/O: KATEVADA VILLAGE, TALE BARAMATHI TALUK, PUNE RURAL, MAHARASTRA STATE-420120. 2. ANIL ARJUN THOMARE S/O .ARJUN, AGED ABOUT 42 YEARS, OWNER OF THE LORRY BEARING REGN NO.KA-22/D-4397, R/O: NO.243, CENTRAL FACILITY BUILDINGS.NO.1, APMC MARKET SECTOR NO.19, VASHI, NAVI-MUMBAI, THANE DISTRICT, MAHARASTRA STATE-420120. 3. M/S. NEW INDIA ASSURANCE COMPANY LIMITED, BY ITS DIVISIONAL MANAGER, EDIGA HOSTEL COMPLEX, DOUBLE ROAD, BALLARI, (POLICY NO.11250031110100012298 VALID FROM 17.03.2012 TO 16.03.2013 INSURED AT DIVISIONAL OFFICE, WARDEN HOUSE BUILDING, 4TH FLOOR, SIR P.M. ROAD, FORT MUMBAI, MAHARASTRA STATE)-420120. …RESPONDENTS (BY SRI M.K. SOUDAGAR, ADVOCATE FOR R3; R1 AND R2-SERVICE OF NOTICE DISPENSED WITH) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, 1988, PLEASED TO MODIFY THE JUDGMENT AND AWARD DATED 28.04.2016 PASSED IN MVC NO.302/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE CUM MEMBER VI- MOTOR ACCIDENT CLAIMS TRIBUNAL, KUDLIGI, BY ENHANCING THE COMPENSATION TO THE APPELLANT AND PASS SUCH OTHER ORDER OR ORDERS AS THIS COURT DEEMS FIT IN THE CIRCUMSTANCES IN THE INTEREST OF JUSTICE AND EQUITY. THESE MISCELLANEOUS FIRST APPEALS, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 4 - NC: 2025:KHC-D:1423 MFA No. 101968 of 2016 C/W MFA No. 102297 of 2016 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) Though these appeals are listed for admission, with consent of learned counsel for the parties, they are taken up for final disposal. 2. MFA No.101968/2016 is filed by the Insurance Company challenging the liability as well as quantum of compensation, whereas MFA No.102297/2016 is filed by the claimants seeking enhancement of compensation, being aggrieved by judgment and award dated 28.04.2016 passed in MVC No.302/2014 on the file of Senior Civil Judge Cum Member VI-MACT, Kudligi (for short, ‘Tribunal’). 3. Brief facts giving rise to filing of these appeals are that on 05.02.2013 at about 10.30 a.m., the Basappa (hereinafter referred to as the ‘deceased’) walking on proper side of the road from Amalapura towards Siddaiahnahatti and while he was crossing NH-13 road, at that time, one lorry bearing registration No.KA-22/D4397 came from Chitradurga side and proceeding towards Kudligi side in a high speed, rash and negligent manner, which was driven by driver of the lorry - 5 - NC: 2025:KHC-D:1423 MFA No. 101968 of 2016 C/W MFA No. 102297 of 2016 and dashed to the deceased. Due to which, the deceased fell down on the ground and sustained severe nature of head injury and also sustained grievous injuries on all over the body. Later, the deceased was succumbed to the injuries sustained in the road traffic accident. Thus, the claimants being legal heirs of the deceased have filed claim petition under Section 166 of the Motor Vehicles Act, 1989 (hereinafter referred to as the ‘Act’), seeking compensation. 4. In this case, the Tribunal has awarded compensation under various heads as under: Sl. No. Heads. Amount in (Rs.) 1. Towards loss of dependency. 4,32,000 2. Towards loss of consortium. 50,000 3. Towards loss of love and affection. 40,000 4. Mental shock and agony. 25,000 5. Funeral expenses. 10,000 6. Transportation of dead body 10,000 7. Loss of estate. 25,000 8. Loss of care and guidance. 50,000 Total: 6,42,000 5. The Tribunal has awarded compensation of Rs.6,42,000/- along with interest at the rate of 6% per annum from the date of petitions till its realization holding that due to - 6 - NC: 2025:KHC-D:1423 MFA No. 101968 of 2016 C/W MFA No. 102297 of 2016 rash and negligent driving of driver of the lorry caused the accident in question. 6. Learned counsel for the appellant-Insurance Company submitted that the deceased has also contributed his negligence to the accident as it was not permitted for the deceased to cross NH-13, but while crossing national highway, the accident was caused. Therefore, the deceased was contributed his negligence to the accident. Further submitted that the driver of the lorry was not having driving licence. Hence, the Insurance Company is not liable to indemnify the owner and pay compensation to the claimants. Further submitted that wife of the deceased is the only dependent and other three claimants are major sons of the deceased, who are not dependent on the deceased. Therefore, deduction of 1/4th income towards personal and living expenses is not correct and that to have been modified as 1/3rd. On these grounds, prays to reduce the quantum of compensation as well as liability raised on the Insurance Company. - 7 - NC: 2025:KHC-D:1423 MFA No. 101968 of 2016 C/W MFA No. 102297 of 2016 7. On the other hand, learned counsel for the respondents/claimants justified the judgment and award of the Tribunal and sought for enhancement of compensation. 8. In the present case, admittedly, the place of accident is NH-13 between Chitradurga and Kudligi. When the deceased was crossing NH-13 and he was about to reach the edge of road, at that movement, accident was caused. Ex.P3 is the Spot panchanama and Ex.P6 is the Spot sketch, which gives the picture of accident, place of accident that is NH-13 and also the deceased was crossing NH-13. If the deceased has crossed 4 feet of national highway, then he would cross national highway completely. But the accident was caused before 4 feet of completion of crossing NH-13. Admittedly, there is no provision for crossing the road, where the deceased has attempted to cross NH-13. 9. In this regard, there is some negligence found on the deceased. Therefore, contributing entire negligence on the part of driver of the lorry is incorrect. Though the entire allegation is made on driver of the lorry and chargesheet is also laid down on driver of the lorry, but this is regarding fastening - 8 - NC: 2025:KHC-D:1423 MFA No. 101968 of 2016 C/W MFA No. 102297 of 2016 of offence against driver of the lorry. Considering negligence aspect between driver and the deceased, though NH-13 is meant for long distance travel, the driver of lorry could have taken little bit precaution and vigilance while driving the vehicle and also at the same time, the deceased has not taken vigilance while crossing the NH-13. Therefore, in this regard, both have contributed their negligence in the accident. Hence, considering the entire facts and circumstances of the accident, the deceased also contributed his negligence and it can be held that the deceased has contributed 20% of negligence in the accident and also driver of lorry has contributed 80% of negligence in the accident. Therefore, the finding of the Tribunal in this regard is modified to the extent as above stated. 10. The Tribunal while awarding compensation under the head loss of dependency, has taken 1/4th of income deducted towards his personal and living expenses on the reason that the there are four legal heirs i.e., deceased wife and children. But claimants No.2 to 4 are major sons of the deceased. The deceased was 60 years old as per the postmortem report (Ex.P7). Therefore, major sons could not be - 9 - NC: 2025:KHC-D:1423 MFA No. 101968 of 2016 C/W MFA No. 102297 of 2016 dependent on the deceased and are not been considered in calculating loss of dependency. 11. The deceased was aged 60 years old as on the date of accident and was doing agriculture work and milk vending business. The accident is of the year 2013. Hence, in the absence of proof of income, notional income is to be taken at Rs.7,000/- per month, as recognized by the Karnataka State Legal Services Authority. In view of the decision of the Hon’ble Apex Court in case of National Insurance Company Limited vs. Pranay Sethi and others, reported in (2017) 16 Supreme Court Cases 680, considering the age of the deceased, 10% of the income is to be added towards loss of future prospects in life. The deceased was married died leaving behind only one dependent i.e., his wife. Therefore, 1/3rd of the income is to be deducted towards his personal and living expenses. Considering the age of the deceased, the appropriate applicable multiplier is 9. Therefore loss of dependency is re-assessed and quantified at Rs.5,54,400/- (Rs.7,000 + 10% minus 1/3rd x 12 x 9). - 10 - NC: 2025:KHC-D:1423 MFA No. 101968 of 2016 C/W MFA No. 102297 of 2016 12. In view of the decision of the Hon’ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LIMITED V. NANU RAM & OTHERS, reported in 2018 ACJ 2782 and in the case of PRANAY SETHI (SUPRA), the claimant is entitled to Rs.40,000/- each under the head ‘loss of consortium’, along with 10% escalation. There is four dependents i.e., his wife and children. Accordingly, Rs.1,76,000/- (Rs.40,000 x 4 + 10%) is awarded under the head ‘loss of consortium including loss of love and affection’. 13. Further, a compensation of Rs.15,000/- each is awarded under the head ‘loss of estate’ and ‘funeral and transportation’ respectively, along with 10% escalation. Therefore under these heads Rs.33,000/- (Rs.15,000 x 2 + 10%) is awarded. 14. Thus, the claimants would be entitled for total compensation under various heads as under: Sl. No. Heads. Amount in (Rs.) 1. Towards loss of dependency 5,54,400 2. Towards loss of consortium (40,000 x 4 +10%) 1,76,000 3. Towards loss of estate and transportation of dead body & 33,000 - 11 - NC: 2025:KHC-D:1423 MFA No. 101968 of 2016 C/W MFA No. 102297 of 2016 funeral expenses. (15,000 x 2 + 10%) Total: 6,27,400 Minus 20% (Towards negligence attributed to the deceased) 1,25,480 Total compensation 5,01,920 15. Therefore, the claimants are entitled for total compensation of Rs.5,01,920/- along with interest at the rate of 6% p.a. from the date of filing of the petition till realization, as against Rs.6,42,000/- awarded by the Tribunal. Reg: LIABILITY 16. In the present case from the chargesheet material, it is proved that, the driver of lorry was not holding driving licence to drive the lorry under Section 3 R/w Section 181 of the MV Act. This has proved the fact that the driver was not having driving licence to drive the lorry. Therefore, there is infraction and condition of policy is proved. Hence, the Insurance Company is liable to be exonerated from liable to pay compensation. The owner is liable to pay compensation as rightly held by the Tribunal. 17. The Insurance Company is able to establish the defence as per sub-section (2) of section 149 of M.V.Act. - 12 - NC: 2025:KHC-D:1423 MFA No. 101968 of 2016 C/W MFA No. 102297 of 2016 However, the claimants are third party to the lorry. Hence as per sub-section (1), (5) and (7) of section 149 of the M.V.Act, and also as per the principle of law laid down by the Hon’ble Supreme Court in the cases of PAPPU AND OTHERS Vs. VINOD KUMAR LAMBA AND ANOTHER reported in (2018) 3 SCC 208; NATIONAL INSURANCE COMPANY LIMITED VS. SWARAN SINGH AND OTHERS reported in (2004) 3 SCC 297; and also as per the Full Bench decision of this Court in the case of NEW INDIA ASSURANCE COMPANY LIMITED VS. YELLAVVA AND ANOTHER reported in 2020 ACJ 2560, the insurance company shall satisfy the claim at the first instance to the claimants and then recover it from the owner of the offending vehicle. However, the insurance company is at liberty to file execution petition before the jurisdictional executing Court as against the owner of the offending vehicle and may seek attachment of movables or immovable properties or both, till recovery is made and also the recovery process can be as per the decision of the Hon’ble Supreme Court in ORIENTAL INSURANCE CO. LTD., VS. NANJAPPAN AND OTHERS, reported in 2004 AIR SCW 952. - 13 - NC: 2025:KHC-D:1423 MFA No. 101968 of 2016 C/W MFA No. 102297 of 2016 18. Therefore, the Insurance Company is directed to deposit the compensation within eight weeks from the date of receipt of a certified copy of this judgment at the first instance and then recover it from the owner of offending vehicle as discussed above. 19. In the result, I proceed to pass the following: ORDER i) All these appeals are allowed in part. ii) The judgment and award dated 28.04.2016 passed in MVC No.302/2014 on the file of Senior Civil Judge Cum Member VI-MACT, Kudligi, stands modified. iii) The claimants are entitled for total compensation of Rs.5,01,920/- along with interest at the rate of 6% p.a. from the date of petition till its realization, as against the compensation of Rs.6,42,000/- awarded by the Tribunal. - 14 - NC: 2025:KHC-D:1423 MFA No. 101968 of 2016 C/W MFA No. 102297 of 2016 iv) The Insurance Company shall deposit the amount within a period of eight weeks from the date of receipt of a copy of this judgment. v) The Insurance Company shall satisfy the claim at the first instance to the claimants and then recover it from owner of the offending vehicle. vi) The Insurance Company is at liberty to file execution petition before the jurisdictional executing Court as against the owner of the offending vehicle and may seek attachment of movables or immovable properties or both, till recovery is made and also the recovery process can be as per the decision of the Hon’ble Supreme Court in Oriental Insurance Co. Ltd., vs. Nanjappan and others, reported in 2004 AIR SCW 952. vii) Send back the Trial Court records along with a copy of this judgment and award to the Tribunal. - 15 - NC: 2025:KHC-D:1423 MFA No. 101968 of 2016 C/W MFA No. 102297 of 2016 viii) The amount in deposit made by the appellant shall be transmitted to the Tribunal. ix) No order as to costs. x) Draw award accordingly. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE PMP List No.: 1 Sl No.: 37