- 1 - HC-KAR NC: 2025:KHC-D:12948 MFA No. 101116 of 2015 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 23RD DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI MISCELLANEOUS FIRST APPEAL NO. 101116 OF 2015 (MV-D) BETWEEN: 1. RAMAPPA S/O SANGAPPA JAGAPUR, AGE: 56 YEARS, OCC: OWNER OF THE VEHICLE TATA MAGIC BEARING NO. KA-29/M-3986, R/O: YAVAGAL, TQ: RON, DIST: GADAG. …APPELLANT (BY SRI. NARAYAN V YAJI, ADV) AND: 1. SMT. RENAVVA @ BASAVVA W/O MAILARAPPA JAKKANNAVAR, AGE:32 YEARS, OCC:HOUSEHOLD, R/O: YAVAGAL, TQ: RON, DIST: GADAG. 2. SHIVAPPA S/O MAILARAPPA JAKKANNAVAR, AGE:12 YEARS, OCC:STUDENT, R/O: YAVAGAL, TQ: RON, DIST: GADAG. 3. NANDINI D/O. MAILARAPPA JAKKANNAVAR, AGE: 08 YEARS, OCC: STUDENT, R/O: YAVAGAL, TQ: RON, DIST: GADAG. (R2 & R3 ARE MINORS, R/BY NATURAL GUARDIAN AND MOTHER THE R1) 4. SMT. GANGAVVA W/O PARASAPPA JAKKANNAVAR, AGE:62 YEARS, OCC:HOUSEHOLD, R/O: YAVAGAL, TQ: RON, DIST: GADAG. 5. THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD DIVISIONAL OFFICE, ENKAY COMPLEX, MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC-D:12948 MFA No. 101116 of 2015 KESHVAPUR, HUBBALLI. …RESPONDENTS (BY SRI. S S JOSHI, ADV FOR R5, NOTICE TO R1 & R4 ARE SERVED R2 & R3 ARE MINORS REP/BY R1) THIS MFA IS FILED U/S 173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED:29.01.2015, PASSED IN MVC NO.128/2013, ON THE FILE OF THE ADDL. DISTRICT & SESSIONS JUDGE, GADAG, AWARDING COMPENSATION OF Rs.5,80,000/- ALONG WITH THE INTEREST AT THE RATE OF 6% P.A FROM THE DATE OF PETITION TILL THE DEPOSIT. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This appeal is filed by the owner of the offending vehicle challenging the judgment award dated 29.01.2015 passed in M.V.C.No.128/2013 by the learned Additional District and Sessions Judge, Gadag. 2. Brief facts leading rise to the filing of this appeal are as follows: - 3 - HC-KAR NC: 2025:KHC-D:12948 MFA No. 101116 of 2015 On 25.02.2013 at 12:00 hours one Mailareppa and others were proceeding in a TATA Magic vehicle bearing No.KA-29/M-3986 to Kotumachagi village after completing the field work. When they were away from the land of one Sri Prakash Kulkarni, the driver of TATA Magic bearing NoKA-29/M-3986 driven his vehicle in a rash and negligent manner. As a result, the vehicle turned turtled and Mailarappa sustained grievous injuries and succumbed to the injuries during treatment. The petitioners, who are the legal representatives of the deceased Mailarappa filed a claim petition under Section 166 of the M.V. Act claiming compensation on account of the death of Mailareppa in the road traffic accident. 3. The owner of the offending vehicle appeared through the counsel but did not file a statement of objections. 4. The Insurance Company filed a statement of objections denying the averments made in the claim - 4 - HC-KAR NC: 2025:KHC-D:12948 MFA No. 101116 of 2015 petition and contended that the driver of the offending vehicle did not possess a valid and effective driving licence as of the date of the accident. It is also contended that the owner of the offending vehicle has violated the terms and conditions of the policy and prays to dismiss the entire claim petition against the Insurance Company. 5. Respondent No.3 appeared through the counsel but did not file a statement of objections. 6. The Tribunal, based on the pleadings of the parties, framed the relevant issues. 7. The petitioners, to substantiate their case, examined petitioner No.1 as PW-1 and marked 8 documents as Exs.P-1 to P-8. In rebuttal, the officer of the Insurance Company was examined as RW-1 and marked 1 document as Ex.R-1. 8. The Tribunal, after assessing the verbal and documentary evidence, allowed the claim petition in part - 5 - HC-KAR NC: 2025:KHC-D:12948 MFA No. 101116 of 2015 with costs and awarded the compensation of Rs.5,80,000/- with interest at the rate of 6% p.a. from the date of the petition till its realization and claim petition against the Insurance Company was dismissed and directed the owner of the offending vehicle to deposit the compensation amount. 9. The owner of the offending vehicle, aggrieved by the impugned judgment, filed this appeal. 10. Notice was issued to the petitioners. Despite service of notice, the petitioners remained unrepresented before this Court. 11. Heard the arguments of the learned counsel for the owner of the offending vehicle and the learned counsel for the Insurance Company. 12. Learned counsel for the owner of the offending vehicle submits that the deceased was not traveling as a paid passenger unauthorisedly. He also submits that the - 6 - HC-KAR NC: 2025:KHC-D:12948 MFA No. 101116 of 2015 burden is on the Insurance Company to prove that the deceased was traveling as gratuitous passenger. The Insurance Company except examining its officer, has not examined any eyewitness to establish that the deceased was traveling as gratuitous passenger. The said aspect was not properly considered by the Tribunal and committed an error in dismissing the claim petition against the Insurance Company. He also submits that as of the date of the accident, the vehicle was insured with the Insurance company and hence, the Insurance Company is liable to indemnify the owner against the third party. The Tribunal should have held liable the owner and the Insurance Company jointly and severally. Hence, on these grounds, he submits that the Tribunal has committed an error in dismissing the claim petition against the Insurance Company. Accordingly, prays to allow the appeal. 13. Per contra, learned counsel for Insurance Company submits that the deceased was traveling as gratuitous passenger and there is violation of the policy - 7 - HC-KAR NC: 2025:KHC-D:12948 MFA No. 101116 of 2015 conditions. Hence, the Tribunal was justified in dismissing the claim petition against the Insurance Company. Hence, on these grounds, he prays to dismiss the appeal. 14. Perused the records, and considered the submissions of the learned counsel for the parties. 15. The point that would arise for consideration is regarding the liability. 16. There is no dispute regarding the occurrence of the accident and also the death of the deceased Mailarappa in the road traffic accident. The petitioners have produced the certified copy of the charge sheet marked as Ex.P-6 which discloses that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle. 17. The Insurance Company has taken a specific defence in the statement of objections which reads as follows: - 8 - HC-KAR NC: 2025:KHC-D:12948 MFA No. 101116 of 2015 “It is revealed from the office records that private car policy No.240702/31/12/01/00000048 covering the period from 03.04.2012 to 02.04.2013 is issued in the name of the first respondent for the TATA-Magic bearing No.KA-29-m-3966 and the risk covered is extended for the personal use of the insured. The other then the personal use extinguishes the indemnification, muchless the provisions of the M.V. Act prohibits the use of private vehicle to carry passengers. It reveals from the pleadings and police records that the insured carried the coolie-passengers from yavagal to Kotumachagi & Timmapur to attend the harvesting work of one Prakash Kulkarni, while returning to their native the driver of the vehicle caused the accident for his rash and negligent driving, the deceased-Mailarappa, fell down and in the course of treatment he breathed last. These facts confirms that the insured-vehicle has used as passenger carriage on hire base and there by the insured has violated the terms and conditions of the policy as well the provisions of the M.V. Act. As such this respondent is not liable to indemnify the insured and so also not liable to pay any compensation.” 18. From the perusal of the statement of objections filed by the Insurance Company, it is clear that the Insurance Company has taken a specific defence that the - 9 - HC-KAR NC: 2025:KHC-D:12948 MFA No. 101116 of 2015 deceased was traveling as a gratuitous passenger in the offending vehicle. Further, the Insurance Company in support of its defence, has not examined any eyewitness to establish that the deceased was traveling as gratuitous passenger. The Tribunal denied to fasten the liability on the Insurance Company only on the ground that the pleadings of the petitioners speaks that the vehicle was carrying passengers. 19. From the perusal of the claim petition, the petitioners nowhere stated that the driver of the offending vehicle was carrying passengers unauthorisedly in the offending vehicle. The Tribunal without properly considering the averments made in the claim petition has recorded a finding that the pleadings speak that the vehicle had carried the passengers unauthorisedly. The said finding recorded by the Tribunal is contrary to the pleadings of the petitioners. Thus, the Tribunal has committed an error in fastening the liability only on the owner of the offending vehicle. Admittedly, the vehicle was insured with the - 10 - HC-KAR NC: 2025:KHC-D:12948 MFA No. 101116 of 2015 Insurance Company and the owner of the offending vehicle has proved that there is no breach of policy conditions. Hence, the Tribunal has committed an error in dismissing the claim petition against the Insurance Company. As on the date of the accident, the vehicle was insured with the Insurance Company and at the cost of repetition, this Court has recorded a finding that there is no breach of policy conditions. Admittedly, the policy is a package policy. The Insurance Company is liable to indemnify the owner against the third party. Hence, both the owner of the offending vehicle and the Insurance Company are jointly and severally liable to pay the compensation amount. 20. In view of the above discussion, I proceed to pass the following: ORDER (i) The appeal is allowed in part. (ii) The judgment award dated 29.01.2015 passed in M.V.C.No.128/2013 by the learned Additional - 11 - HC-KAR NC: 2025:KHC-D:12948 MFA No. 101116 of 2015 District and Sessions Judge and M.A.C.T., Gadag, is modified. (iii) Both the owner of the offending vehicle and the Insurance Company are jointly and severally liable to pay the compensation amount with accrued interest to the petitioners. (iv) The respondent-Insurance Company is directed to deposit the compensation amount with accrued interest within a period of eight weeks from the date of receipt of a copy of this judgment. (v) The office is directed to refund the amount deposited by the owner of the offending vehicle in his favour on due identification. (vi) In view of the disposal of the appeal, I.A.No.1/2015 does not survive for consideration. Sd/- (ASHOK S. KINAGI) JUDGE NAA CT: BSB List No.: 1 Sl No.: 23