- 1 - HC-KAR NC: 2025:KHC-D:8075 MFA No. 100245 of 2017 C/W MFA No. 100246 of 2017 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 26TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 100245 OF 2017 (MV-D) C/W MISCELLANEOUS FIRST APPEAL NO. 100246 OF 2017 IN MFA NO.100245 OF 2017: BETWEEN: 1. SRI GANAPATI S/O DHAMLU RATHOD, AGE: 64 YEARS, OCC: AGRICULTURE, 2. SMT. GHAMLABAI W/O GANAPATI RATHOD, AGE: 56 YEARS, OCC: HOUSEWIFE, 3. KUM. RUPASRI D/O MANJUNATH RATHOD, AGE: 16 YEARS, OCC: STUDENT, 4. KUM. RISHIT S/O MANJUNATH RATHOD, AGE: 14 YEARS, OCC: STUDENT, (ALL ARE R/O: GANESH NAGAR, MUNDAGOD, TQ: MUNDAGOD, DIST: UTTAR KANNADA-563 432) NOTE: APPELLANT NO.3 AND 4 ARE MINORS REPRESENTED BY THEIR GRAND MOTHER APPELLANT NO.2. … APPELLANTS (BY SRI GURURAJ R. TURAMARI, ADVOCATE.) AND: 1. NAGAPPA S/O YALLAPPA WADDAR, AGE: MAJOR, OCC: BUSINESS, R/O: LAMANI TANDA, SIRSI ROAD, MUNDAGOD, DIST: UTTAR KANNADA-563 432, Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - HC-KAR NC: 2025:KHC-D:8075 MFA No. 100245 of 2017 C/W MFA No. 100246 of 2017 (OWNER OF TIPPER LORRY BEARING REG. NO.KA-20/A-4560). 2. THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED, ENKAY COMPLEX, KESHWAPUR, HUBBALLI, DIST: DHARWAD-580 002. 3. SRI PRAKASH S/O GANAPATI RATHOD, AGE: MAJOR, OCC: BUSINESS, R/O: GANESH NAGAR, MUNDAGOD, TQ: MUNDAGOD, DIST: UTTAR KANNADA-563 432, (OWNER OF MOTORCYCLE BEARING REG. NO. KA-31/R-4843). 4. THE DIVISIONAL MANAGER, THE ORIENTAL INSURANCE COMPANY LIMITED, ENKAY COMPLEX, 2ND FLOOR, KESHWAPUR, HUBBALLI, DIST: DHARWAD-580 002. … RESPONDENTS (BY SRI B.M. PATIL, ADVOCATE FOR R1; SRI CHANDRASHEKHAR M. HOSMANI, ADVOCATE FOR R3; SRI MADHUKESHWAR A. DESHPANDE, ADVOCATE FOR R2) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO ENHANCE THE COMPENSATION BY MODIFYING THE JUDGMENT AND AWARD DATED 27.06.2016, PASSED IN M.V.C.NO.15/2013 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND AMACT, HAVERI AND ETC.,. IN MFA NO.100246 OF 2017: BETWEEN: KUM. ANASUYA D/O GANGARAM CHAVAN, AGE: 24 YEARS, OCC: STUDENT AND BUSINESS, R/O: TAMYANKOPPA, TQ: MUNDAGOD, DIST: UTTAR KANNADA-563 432. … APPELLANT (BY SRI G.R.TURAMARI, ADVOCATE.) - 3 - HC-KAR NC: 2025:KHC-D:8075 MFA No. 100245 of 2017 C/W MFA No. 100246 of 2017 AND: 1. NAGAPPA S/O YALLAPPA WADDAR, AGE: MAJOR, OCC: BUSINESS, R/O: LAMANI TANDA, SIRSI ROAD, MUNDAGOD, DIST: UTTARA KANNADA-563 432, (OWNER OF TIPPER LORRY BEARING REG. NO.KA-20/A-4560). 2. THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED, ENKAY COMPLEX, KESHWAPUR, HUBBALLI, DIST: DHARWAD-580 002. 3. SRI PRAKASH S/O GANAPATI RATHOD, AGE: MAJOR, OCC: BUSINESS, R/O: GANESH NAGAR, MUNDAGOD, TQ: MUNDAGOD, DIST: UTTAR KANNADA-563 432, (OWNER OF MOTOR CYCLE BEARING REG. NO. KA-31/R-4843). 4. THE DIVISIONAL MANAGER, THE ORIENTAL INSURANCE COMPANY LIMITED, ENKAY COMPLEX, 2ND FLOOR, KESHWAPUR, HUBBALLI, DIST: DHARWAD-580 002. … RESPONDENTS (BY SRI MADHUKESHWAR DESHPANDE, ADVOCATE FOR R2; R1 – NOTICE SERVED; R4 – SERVICE OF NOTICE DISPENSED WITH.) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO ENHANCE THE COMPENSATION BY MODIFYING THE JUDGMENT AND AWARD DATED 27.06.2016, PASSED IN M.V.C.NO.16/2013, ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND AMACT, HAVERI AND ETC.,. THESE APPEALS COMING ON FOR ADMISSION THIS DAY, JUDGMENT IS DELIVERED THEREIN AS UNDER: - 4 - HC-KAR NC: 2025:KHC-D:8075 MFA No. 100245 of 2017 C/W MFA No. 100246 of 2017 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) Both these appeals are filed by the claimants challenging the judgment and award dated 27.06.2016, passed by the Principal Senior Civil Judge and Additional MACT, Haveri, in MVC No.15/2013 and MVC No.16/2013, respectively, seeking enhancement of compensation. 2. Heard arguments addressed by the learned counsels appearing for the respective parties and perused the trial Court records and the appeal papers. 3. For the purpose of convenience and easy reference, ranking of the parties is referred to as per their status before the trial Court. 4. It is the case of the claimants that on 26.03.2012 the deceased Manjunath was going on a motorcycle bearing No.KA-31/R-4843, along with a minor child as a pillion rider and due to the accident between tipper lorry bearing No.KA-20/A-4560 and the said - 5 - HC-KAR NC: 2025:KHC-D:8075 MFA No. 100245 of 2017 C/W MFA No. 100246 of 2017 motorcycle, the deceased who was pillion rider, died on the spot and the minor girl had sustained injuries. The tribunal held that the accident is caused due to contributory negligence between the rider of motorcycle and driver of tipper lorry. Accordingly held the owner and insurer of the lorry liable to pay compensation to the extent of 50% and the owner of the motorcycle is held liable to pay 50% of the compensation. The rider of the motorcycle was not having driving licence. The oral and documentary evidence placed before the Court i.e., the complaint, charge sheet, IMV report, spot mahazar prove that the accident is caused due to contributory negligence by the rider of motorcycle as well as the driver of tipper lorry. Therefore, the finding given by the tribunal in this regard is correct, which needs no interference. 5. The rider of the motorcycle was not having driving licence to ride the motorcycle. Therefore, due to breach of policy condition, the owner of the motorcycle is liable to pay compensation. Therefore, the insurance - 6 - HC-KAR NC: 2025:KHC-D:8075 MFA No. 100245 of 2017 C/W MFA No. 100246 of 2017 company of the motorcycle is not liable to pay compensation. 6. The insurance company is able to establish the defence as per sub-section (2) of section 149 of M.V.Act. However, the claimants are third party to the vehicle. 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 - 7 - HC-KAR NC: 2025:KHC-D:8075 MFA No. 100245 of 2017 C/W MFA No. 100246 of 2017 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. 7. Therefore, the insurance company of the motorcycle shall pay compensation to the claimant at the first instance and then recover it from the owner of the motorcycle. Re: Quantum of compensation. MFA No.100245/2017. 8. In this case, for the death of one Manjunath in a road traffic accident, the tribunal has awarded compensation under various heads as under: Sl. No. Heads. Amount in (Rs.) 1. Loss of dependency. 8,16,000 2. Loss of love and affection. 10,000 3. Loss of estate. 10,000 4. For transportation and funeral expenses. 10,000 Total: 8,46,000 - 8 - HC-KAR NC: 2025:KHC-D:8075 MFA No. 100245 of 2017 C/W MFA No. 100246 of 2017 9. The tribunal awarded lesser amount of compensation contrary to the principles of law decided by the Hon’ble Supreme Court. Therefore, the same is required to be enhanced by modifying the judgment and award of the tribunal. 10. The deceased was aged 28 years as on the date of accident and was a vegetable vendor and businessman. The accident is caused on 26.03.2012. The claimants have not produced any proof with regard to income of the deceased. Hence, in the absence of proof of income, notional income is to be taken at Rs.6,500/- for the accident year 2012, 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, 40% of the income is to be added towards loss of future prospects in life. There are four dependents who are parents and two children of the deceased. Therefore 1/4th of the income is to be deducted towards his personal and living - 9 - HC-KAR NC: 2025:KHC-D:8075 MFA No. 100245 of 2017 C/W MFA No. 100246 of 2017 expenses. Considering the age of the deceased, the appropriate applicable multiplier is 17. Therefore loss of dependency is re-assessed and quantified at Rs.13,92,300/- (Rs.6,500 + 40% minus 1/4th x 12 x 17). 11. 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 claimants are entitled to Rs.40,000/- each under the head ‘loss of consortium’, along with 10% escalation. There are four dependents who are parents and two 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’. 12. 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. - 10 - HC-KAR NC: 2025:KHC-D:8075 MFA No. 100245 of 2017 C/W MFA No. 100246 of 2017 13. 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 13,92,300 2. Towards loss of consortium (40,000 x 4 +10%) 1,76,000 3. Towards loss of estate and transportation of dead body & funeral expenses. (15,000 x 2 + 10%) 33,000 Total: 16,01,300 14. Therefore, the claimants are entitled for total compensation of Rs.16,01,300/- along with interest at the rate of 6% p.a. from the date of filing of the petition till realization, as against Rs.8,46,000/- awarded by the tribunal. MFA No.100246/2017. 15. In this case, from the medical evidence on record it is proved that the claimant had suffered the following injuries. - 11 - HC-KAR NC: 2025:KHC-D:8075 MFA No. 100245 of 2017 C/W MFA No. 100246 of 2017 “CLW of 3 cms over left leg middle 3rd exposing underlying cut muscles; Compound fracture both bones of left leg; Fracture shaft of right humerous proximal 1/3rd; Fracture of lateral end of right clavicle; Right shoulder and arm were suffering from loss of muscles and left leg and ankle movements were restricted by 15%; Depression of left nostril was present.” 16. The tribunal has awarded compensation under various heads as under: Sl. No. Heads. Amount in (Rs.) 1. Pain and suffering. 20,000 2. Medical expenses. 2,340 3. Food, diet, nourishment and attendant charges 10,000 4. Loss of income during laid up period. 10,000 5. Loss of future income on account of permanent physical disability. 1,29,600 6. Loss of amenities and enjoyment of life. 10,000 Total: 1,81,940 17. Considering the nature of injuries sustained, compensation awarded by tribunal is lesser side. Therefore, - 12 - HC-KAR NC: 2025:KHC-D:8075 MFA No. 100245 of 2017 C/W MFA No. 100246 of 2017 the same is required to be enhanced by modifying the judgment and award. 18. In the present case the doctor PW.4 has stated that the claimant has suffered 40% permanent physical disability, but the tribunal has considered it only as 10%. Considering the injuries suffered by the claimant, 20% of permanent physical disability is to be taken into consideration. 19. Therefore, as per the age group mentioned in National Insurance Company Limited vs. Pranay Sethi and others, reported in (2017) 16 Supreme Court Cases 680, and as per the Division Bench judgment of this Court in New India Assurance Company Vs. Abdul S/o Mehaboob Tahasildar in MFA No.103807/2016 C/w. MFA Nos.103835/2016 & 103807/2018 and as per the judgment of the Hon’ble Supreme Court in the case of Sidram vs. Divisional Manager, United India Insurance Company Limited and another reported in (2023) 3 SCC 439, even in - 13 - HC-KAR NC: 2025:KHC-D:8075 MFA No. 100245 of 2017 C/W MFA No. 100246 of 2017 the case of injuries, certain income is to be added towards loss of future prospects in life. 20. The accident is caused on 26.03.2012. The claimant was doing business. She has not produced any proof regarding her income. Therefore, in the absence of proof of income, notional income of Rs.6,500/- per month is taken into consideration for the accident year 2012, which is recognized by the Karnataka State Legal Service Authority. The claimant was aged 20 years at the time of accident. Therefore, considering her age, 40% of the income is to be added towards loss of future prospects and the appropriate applicable multiplier is 18. 21. Hence, loss of future income due to disability is hereby assessed and quantified as Rs.3,93,120/- (Rs.6,500 + 40% x 20% x 12 x 18). 22. Further, a sum of Rs.26,000/- is awarded towards loss of income during laid up period for a period of four months (Rs.6,500/- x 4 months). - 14 - HC-KAR NC: 2025:KHC-D:8075 MFA No. 100245 of 2017 C/W MFA No. 100246 of 2017 23. Considering the injuries sustained, a compensation of Rs.40,000/- towards pain and suffering, Rs.25,000/- towards loss of amenities are awarded. The compensation awarded towards medical expenses and hospital charges of Rs.2,340/- is as per the actual bills and receipts produced; therefore, the same is kept intact. Further, Rs.15,000/- towards incidental expenses like food, nourishment, travelling, attendant charges, etc., is awarded. 24. Thus, the claimant is entitled for total compensation under various heads as under: Sl. No. Heads. Amount in (Rs.) 1. Pain and suffering. 40,000 2. Loss of amenities. 25,000 3. Medical expenses and hospital charges. 2,340 4. Loss of income during laid up period and medical treatment period. 26,000 5. Incidental charges like attendant charges, food, nourishment, conveyance, etc.,. 15,000 6. Loss of future earning capacity. 3,93,120 Total: 5,01,460 - 15 - HC-KAR NC: 2025:KHC-D:8075 MFA No. 100245 of 2017 C/W MFA No. 100246 of 2017 25. Therefore, the claimant is entitled for total compensation of Rs.5,01,460/-, along with interest at the rate of 6% p.a. from the date of filing of the petition till realization, as against Rs.1,81,940/- awarded by the Tribunal. 26. In both these appeals the insurance company of the tipper lorry is directed to deposit 50% of the compensation within eight weeks from the date of receipt of a certified copy of this judgment. The insurance company of the motorcycle is directed to deposit 50% of 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 the motorcycle as discussed above. 27. In the result, I proceed to pass the following: ORDER i) Both the appeals are allowed in part. - 16 - HC-KAR NC: 2025:KHC-D:8075 MFA No. 100245 of 2017 C/W MFA No. 100246 of 2017 ii) The judgment and award dated 27.06.2016, passed by the Principal Senior Civil Judge and Additional MACT, Haveri, in MVC No.15/2013 and MVC No.16/2013, respectively, stand modified. iii) The claimants in MFA No.100245/2017 are entitled for total compensation of Rs.16,01,300/- along with interest at the rate of 6% p.a. from the date of petition till its realization, as against the compensation of Rs.8,46,000/- awarded by the tribunal. iv) The claimant in MFA No.100246/2017 is entitled for total compensation of Rs.5,01,460/- along with interest at the rate of 6% p.a. from the date of petition till its realization, as against the compensation of Rs.1,81,940/- awarded by the tribunal. v) In both these appeals the insurance company of the tipper lorry is directed to deposit - 17 - HC-KAR NC: 2025:KHC-D:8075 MFA No. 100245 of 2017 C/W MFA No. 100246 of 2017 50% of the compensation within eight weeks from the date of receipt of a certified copy of this judgment. vi) The insurance company of the motorcycle is directed to deposit 50% of 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 the motorcycle. vii) The insurance company of the motorcycle is at liberty to file execution petition before the jurisdictional executing Court as against the owner of the motorcycle 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. - 18 - HC-KAR NC: 2025:KHC-D:8075 MFA No. 100245 of 2017 C/W MFA No. 100246 of 2017 viii) Send back the trial Court records along with a copy of this judgment and award to the tribunal. ix) No order as to costs. x) Draw award accordingly. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE MRK CT:BCK LIST NO.: 1 SL NO.: 38