- 1 - NC: 2025:KHC-D:5842 MFA No. 104181 of 2017 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 1ST DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE UMESH M ADIGA MISCELLANEOUS FIRST APPEAL NO. 104181 OF 2017 (MV-D) BETWEEN: THE DIVISIONAL MANAGER NATIONAL INSURANCE CO. LTD., RAMDEV GALLI, BELAGAVI, (INSURER OF MAHINDRA PICKUP JEEP BEARING REG NO.KA-23/A-1085 BEARING POLICY NO.610202/31/13/6700002232) NOW THROUGH AUTHORIZED SIGNATORY,MANAGER. …APPELLANT (BY SRI. GANGADHAR S.HOSAKERI, ADVOCATE) AND: 1. SMT. LACHCHAWWA W/O. TIPPANNA MADAR AGE: 57 YEARS, OCC: HOUSEHOLD WORK, R/O: HALALLI, TQ: ATHANI, DIST: BELAGAVI. 2. SRI. BASAPPA S/O. TIPPANNA MADAR AGE: 42 YEARS, OCC: COOLIE, R/O: HALALLI, TQ: ATHANI, DIST: BELAGAVI. 3. KUMARI. SHRIDEVI D/O. TIPPANNA MADAR AGE: 40 YEARS, OCC: HOUSEHOLD WORK, R/O: HALALLI, TQ: ATHANI, DIST: BELAGAVI. 4. SRI. HASANSAB S/O. HAJISAB NADAF AGE: MAJOR, OCC: BUSINESS, R/O: ARATAL, TQ: ATHANI, DIST: BELAGAVI. …RESPONDENTS (BY SRI. HARISH S.MAIGUR, ADVOCATE FOR R1 TO R3; SRI. SANGAMESH S.GHULAPPANAVAR, ADVOCATE FOR C/R4) THIS MFA IS FILED U/S. 173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 07.10.2017 PASSED IN MVC NO.2431/2015 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ATHANI, AWARDING COMPENSATION OF RS.4,78,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL ITS REALISATION. Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:5842 MFA No. 104181 of 2017 THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) 1. This is insurer’s appeal challenging the judgment and award dated 07.10.2017 passed in MVC No.2431/2015 on the file of Senior Civil Judge and MACT, Athani (for short, ‘the Tribunal’). 2. The parties are referred to as per their rankings before the Tribunal. 3. It is the case of claimants that on 10.06.2014 around 5:00 p.m. deceased Tippana Madar and Mallappa Pujari were travelling in a pick-up Jeep bearing registration No.KA-23/A-1085 on Athani-Bijapur road. They met with an accident due to rash and negligent driving of the said vehicle by its driver. As a result of which Tippanna Madar sustained grievous injuries and succumbed to the injuries while undergoing treatment on 11.06.2014. It is further contended that deceased was aged 58 years at the time of accident. He was agricultural coolie and was earning - 3 - NC: 2025:KHC-D:5842 MFA No. 104181 of 2017 Rs.9,000/- per month. Claimants are his wife and children. They were dependent on the earnings of the deceased. With these reasons prayed to award compensation. 4. Respondents denied contentions of the claim petition. They further contended that there is delay in filing the complaint, which indicates that the said vehicle was falsely implicated in the accident. Driver of the vehicle was not holding LMV transport licence. The owner of the vehicle violated terms and conditions of the policy of insurance and hence respondents are not liable to pay the compensation. 5. From the rival contentions of the parties, the Tribunal framed necessary issues. 6. Claimants to prove their case examined one witness as PW1 and marked 11 documents as per Exs.P1 to P11. Respondent No.2 examined one witness as RW1 and marked 4 documents as per Exs.R1 to R4. 7. The Tribunal after hearing both the parties and considering the contentions of the parties, held that accident had taken place due to rash and negligent driving - 4 - NC: 2025:KHC-D:5842 MFA No. 104181 of 2017 of offending vehicle by its driver. The Tribunal has assessed the age of the victim as 65 years, his income as Rs.8,000/- per month, deducted 1/3rd towards personal expenses and awarded the following amount of compensation: Loss of dependency :Rs.4,48,000.00 Loss of love and affection :Rs. 20,000.00 Transportation of body :Rs. 10,000.00 Total :Rs.4,78,000.00 8. Learned counsel for the appellant vehemently contends that driver of the offending vehicle was not holding valid and effective driving licence to drive the said class of vehicle, therefore they have violated the terms and conditions of policy and hence insurer is not liable to pay the compensation. The second point urged by the learned advocate for the appellant is that the said vehicle was goods vehicle and deceased was a gratuitous passenger in a goods vehicle and his liability is not covered under the policy. Therefore respondents are not liable to pay compensation. The Tribunal has not considered the said points and fastened the liability on - 5 - NC: 2025:KHC-D:5842 MFA No. 104181 of 2017 respondent No.2 to pay the compensation which is erroneous. Hence prayed to allow the appeal. 9. The learned counsel for the claimants submits that insurer has not taken the defence that deceased was a gratuitous passenger in a goods vehicle. The said contention cannot be taken out before the Appellate Court for the first time. Moreover no evidence was led by the respondent No.2 in this regard before the Tribunal and further stated that the question of not holding proper driving licence is covered under the judgment of the Hon’ble Apex Court in the case of Mukund Dewangan Vs.Oriental Insurance Company Limited reported in (2017) 14 SCC 663. Therefore the appeal does not survive for consideration. 10. The submission of the learned advocate for the respondents is tenable. Though the learned advocate for the appellant vehemently contended that deceased was a passenger travelling in goods vehicle but no such defence was taken in the written statement and no issue was framed to that effect and no proper evidence was led in - 6 - NC: 2025:KHC-D:5842 MFA No. 104181 of 2017 this regard. Under these circumstances, insurer cannot take such a defence for the first time before this Court in an appeal. Hence cannot be considered. 11. Learned counsel for the respondents/claimants produced policy of insurance and registration certificate of the offending vehicle. According to the registration certificate, including the driver four persons are permitted to travel in the said vehicle. As per the charge sheet and enclosures, including the driver 3 persons were travelling. Therefore there is no violation of permit condition by the owner of the vehicle. On this count also the said contention is not acceptable. 12. It is the contention of the insurer that the driver of the offending vehicle was holding licence to drive LMV(NT). However he was driving a transport vehicle and hence the driver of vehicle was not holding valid and effective driving licence as stated by the learned counsel for the respondents/claimants. The said defence is not available to the insurer in view of the law laid down by the Hon’ble Apex Court in the case of Mukund Dewangan - 7 - NC: 2025:KHC-D:5842 MFA No. 104181 of 2017 referred supra and affirmed by the Constitutional Bench of the Hon’ble Apex Court in the case of Bajaj Alliance General Insurance Co. Ltd. Vs. Rambha Devi and Ors. and Others in (2025)3 SCC 95 Civil Appeal No.841/2018. Therefore on both these counts this appeal fails. 13. For the aforesaid discussion, this Court passes the following: ORDER i. Appeal is dismissed as devoid of merits. ii. The judgment and award dated 07.10.2017 passed in MVC No.2431/2015 on the file of Senior Civil Judge and MACT, Athani is confirmed. iii. Whatever amount deposited by the appellant shall be transmitted to the Tribunal. iv. Send back the TCR along with copy of this judgment. Sd/- (UMESH M ADIGA) JUDGE KGK Ct:vh List No.: 1 Sl No.: 38