- 1 - NC: 2025:KHC:5857 MFA No. 4585 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR MISCELLANEOUS FIRST APPEAL NO. 4585 OF 2020 (MV-D) BETWEEN: 1. SMT. DRAKSHAYANAMMA, W/O NAGARAJ S.H. @ NAGENDRAPPA, AGED ABOUT 36 YEARS, HOUSEHOLD AND COOLIE WORK R/O ARAKERI COLONY OF HONNALI TALUK DAVANAGERE DIST - 577 217. 2. KUM. CHANDRAKALA S.N. @ CHANDRAMMA D/O NAGARAJ S.H. @ NAGENDRAPPA, AGED ABOUT 13 YEARS, OCC: STUDENT, SINCE, MINOR REPRESENTED BY HER MINOR GUARDIAN i.e. NATURAL MOTHER APPELLANT NO.1 SMT. DRAKSHAYANAMMA R/O ARAKERE COLONY OF HONNALI TALUK DAVANAGERE DIST - 577 217. …APPELLANTS (BY SRI S.J.SUNKAPUR, ADVOCATE) AND: 1. SRI KOTRESH K.G., S/O KARIBASAPPA K.G., MAJOR, OCC: BUSINESS, OWNER OF MOTOR CYCLE BEARING REG. NO.KA17/EY-2153, R/O #701, KENCHANAGOWDRA ONI, HOLE SIRIGERI OF HARIHAR TALUK, DAVANAGERE DIST. - 577 601. 2. THE DIVISIONAL MANAGER, Digitally signed by KAVYA R Location: High Court of Karnataka - 2 - NC: 2025:KHC:5857 MFA No. 4585 of 2020 NEW INDIA ASSURANCE COMPANY LTD., A.M. ARCADE, NEAR VIDYARTHI BHAVAN, C.G. HOSPITAL ROAD, DAVANAGERE - 577 001. …RESPONDENTS (BY SRI PHANEENDRA, ADVOCATE FOR SRI A.N.KRISHNASWAMY, ADVOCATE FOR R2; R1 SERVED AND UNREPRESENTED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 18.03.2020 PASSED IN MVC NO.754/2019 BY THE PRINCIPAL SENIOR CIVIL JUDGE AND MACT-IV AT DAVANGERE. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE PRADEEP SINGH YERUR ORAL JUDGMENT This appeal is preferred by the claimants challenging the judgment and award dated 18.03.2020 passed in MVC.No.754/2019 by the Court of the Principal Senior Civil Judge and MACT-IV at Davanagere (for short ‘the tribunal’). This appeal is founded on the premise of inadequacy of compensation awarded by the tribunal. 2. Parties to the appeal shall be referred to as per their status before the tribunal. - 3 - NC: 2025:KHC:5857 MFA No. 4585 of 2020 3. Brief facts of the case are as under: On 26.05.2019 at about 7.00 p.m., the deceased Nagaraj S.H. was riding his motorcycle carefully and cautiously on the left side of the road, at that time, the rider of the motorcycle bearing registration No.KA-17/EY- 2153 came in a rash and negligent manner and dashed against the motorcycle of the deceased. Due to the said impact, the deceased Nagaraj S.H. fell down and sustained grievous injuries and succumbed to the same. Hence, the claimants, who are the legal representatives of the deceased filed a claim petition seeking compensation. 3.1 On service of notice, respondents appeared through their counsel and filed their respective statement of objections, denying the averments made in the claim petition and sought for dismissal of the claim petition. 3.2 On the basis of material evidence, both oral and documentary and on hearing the submissions of learned counsels for both parties, the tribunal awarded compensation of Rs.14,04,450/- with interest @ 8% p.a. - 4 - NC: 2025:KHC:5857 MFA No. 4585 of 2020 and fastened the liability against respondent No.1-owner of the offending vehicle and directed to deposit the compensation amount within sixty (60) days. 3.3 Being aggrieved by the inadequate compensation awarded by the tribunal, the claimants are before this Court seeking enhancement of compensation. 4. It is the vehement contention of the learned counsel for appellants-claimants that the tribunal has taken the income on the lower side. He further contends that the tribunal has committed an error in not granting future prospects and not awarded reasonable compensation under other heads also. On these grounds, he seeks enhancement of compensation. 5. Per contra, learned counsel representing the respondent-Insurance Company vehemently contends that the judgment and award passed by the tribunal is justified. The tribunal is right in dismissing the claim petition against respondent No.2-Insurance Company and - 5 - NC: 2025:KHC:5857 MFA No. 4585 of 2020 fastening the liability against respondent No.1-owner of the offending vehicle, on the ground of the fundamental breach of the policy conditions, as the rider of the offending motorcycle did not possess a valid and effective driving licence as on the date of occurrence of the accident and thereby the finding and reasoning of the tribunal fixing the liability as against respondent No.1-owner of the offending vehicle is justified. The tribunal has awarded just and reasonable compensation, which does not call for interference. Accordingly, he seeks dismissal of the appeal and sustains the order. 6. Learned counsel for appellants relies upon the judgment of the Hon'ble Apex Court in the case of Shamanna and Another v/s Divisional Manager, Oriental Insurance Company Limited and Others reported in (2018) 9 Supreme Court Cases 650 to canvas his arguments on the ground of the principle of pay and recovery, whereas the learned counsel for Insurance Company relies upon the judgment of the Division Bench - 6 - NC: 2025:KHC:5857 MFA No. 4585 of 2020 of this Court in MFA No.3297/2019 to contend that the question of pay and recovery would not arise without there being a fundamental breach of the policy and it is right in fixing the liability as against the owner of the offending vehicle. The aspect of pay and recovery shall be dealt in the later paragraphs. 7. Heard learned counsel for appellants-claimants and learned counsel for respondent-Insurance Company, a short points that would arise for consideration: “(i) Whether the liability is to be fixed jointly and severally against respondent Nos.1 and 2? (ii) Whether the tribunal has committed an error in fixing the liability against respondent No.1-owner of the offending vehicle and dismissing the petition as against respondent No.2-Insurance Company? (iii) Whether the principle of pay and recovery requires to be adopted in the present case? - 7 - NC: 2025:KHC:5857 MFA No. 4585 of 2020 (iv) Whether the enhancement is required to be granted in the present case? 8. Having perused the impugned judgment and award, the occurrence of the accident, involvement of the vehicle and death having occurred due to the road traffic accident are all established and proved by the production of Exs.P1 to P20. The coverage of insurance policy on the offending vehicle is not in dispute. Therefore, the negligence is rightly attributed against the rider of the offending vehicle. 9. Now coming to the aspect of age, avocation, income and appropriate multiplier to be adopted, it is stated that the income taken by the tribunal is Rs.9,000/- per month as notional income, no documentary proof is produced before the tribunal to show the income. However, the notional income chart of the Legal Services Authority prescribes the income of Rs.14,000/- for the accident of the year 2019. Accordingly, income is taken as Rs.14,000/-. The age of the deceased was 47 years at the - 8 - NC: 2025:KHC:5857 MFA No. 4585 of 2020 time of accident. The tribunal has rightly applied the multiplier at ‘13’, which does not call for interference. The tribunal has failed to award future prospects, in view of the deceased being aged 47 years, 25% would have to be added to the income as future prospects. The tribunal has rightly deducted 1/3rd of the income towards personal and living expenses of the deceased, which also does not call for interference. Therefore, the claimants would be entitled to the compensation of Rs.18,20,052/- (Rs.14,000/- + 25% = Rs.17,500/- - 1/3 = Rs.11,667/- x 12 x 13) towards loss of dependency as against Rs.9,36,000/- awarded by the tribunal. 10. The tribunal awarded Rs.79,000/- towards food and nourishment, conveyance and attendant charges and Rs.3,19,450/- towards medical expenses, which do not call for interference and the same are retained. 11. The tribunal awarded Rs.40,000/- towards loss of consortium and the same requires to be modified. As there are two dependents, each would be entitled to a sum of - 9 - NC: 2025:KHC:5857 MFA No. 4585 of 2020 Rs.40,000/- per head as per the judgment of the Hon’ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and others reported in (2017) 16 Supreme Court Cases 680. Therefore, under the head loss of consortium, the claimants are entitled for Rs.80,000/- (Rs.40,000/- x 2) along with 10% escalation towards one block period, which would be Rs.88,000/- (Rs.80,000/- + 10%). 12. The tribunal awarded Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses, which also do not call for interference. In all, the claimants would be entitled to Rs.30,000/- under these heads. However, 10% escalation on the same to be awarded, which would come to Rs.33,000/- (Rs.30,000/- + 10%). 13. In view of the above, the claimants would be entitled to a total compensation of Rs.23,39,502/- as against Rs.14,04,450/- as mentioned in the table below: Heads Amount in Rs. Loss of dependency 18,20,052-00 - 10 - NC: 2025:KHC:5857 MFA No. 4585 of 2020 Food and nourishment, conveyance and attendant charges 79,000-00 Loss of consortium 88,000-00 Loss of estate and funeral expenses 33,000-00 Medical expenses 3,19,450-00 TOTAL 23,39,502-00 14. In view of there being a breach of the policy conditions of not possessing a valid and effective driving licence by the rider of the offending vehicle, the principle of pay and recovery is adopted. Respondent No.2 - Insurance Company is liable to pay the compensation and recover the same from respondent No.1-owner of the offending vehicle, in the manner known to law. 15. Accordingly, I pass the following: ORDER i) The appeal is allowed-in-part; ii) The judgment and award dated 18.03.2020 passed in MVC.No.754/2019 by the Court of the Principal Senior Civil Judge and MACT-IV at Davanagere, is modified; - 11 - NC: 2025:KHC:5857 MFA No. 4585 of 2020 iii) The claimants would be entitled to a sum of Rs.23,39,502/- as against Rs.14,04,450/- awarded by the tribunal; iv) The interest awarded by the tribunal at the rate of 8% p.a. on the compensation amount of Rs.14,04,450/- is left undisturbed. The enhanced compensation shall carry interest at the rate of 6% p.a.; v) The liability is jointly fixed against respondent Nos.1 and 2, in view of the policy being in force. Respondent No.2-Insurance Company is liable to pay the compensation within a period of thirty days from the date of receipt of a copy of this judgment; vi) In view of appellant No.2 being a minor and having loss of earning member i.e., her father, she would require the amount for her present and future education. This Court deems it appropriate to order for release of the enhanced compensation in favour of the - 12 - NC: 2025:KHC:5857 MFA No. 4585 of 2020 appellants upon furnishing the required Bank details/upon proper identification; vii) All other terms and conditions stipulated by the tribunal are undisturbed and retained; viii) The original records shall be transmitted to the jurisdictional tribunal forthwith. ix) Ordered accordingly. Sd/- (PRADEEP SINGH YERUR) JUDGE CPN CT: BHK