- 1 - NC: 2025:KHC-D:1376 MFA No. 101887 of 2015 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.101887 OF 2015 (MV-I) BETWEEN: THE MANAGER, SHRIRAM GENERAL INSURANCE COM. LTD., E-8, EPIP, RIICO, INDUSTRIAL AREA, SITAPUR, JAIPUR, RAJASTHAN, NOW AT SHRIRAM GENERAL INS. COM LTD., NO.5/4, 3RD FLOOR, S.V. ARCADE, BELEKAHALLI MAIN ROAD, OFF. BENNURUGHATTA ROAD, IIMB POST, BENGALURU, REPTD. BY AUTHORIZED SIGNATORY. …APPELLANT (BY SRI NAGARAJ C.KOLLOORI, ADVOCATE) AND: 1. MUDHIVIRAYYA S/O. GURUPADAYYA HOSMATH, AGE: 34 YEARS, OCC: KSRTC BUS DRIVER, R/O: SHIROL, TQ: NARGUND, N/A: GAJENDRAGAD, DIST: RON. 2. RAJESH PARASHURAM DHAWALE, AGE: 38 YEARS, R/O: H.NO.202, NALAGHAR GALLI, KALAGHATGI, DIST: DHARWAD. …RESPONDENTS (BY SRI B.V. SOMAPUR, ADVOCATE FOR R1; SRI SURESH K.MITHARE, ADVOCATE FOR R2) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, PLEASED TO SET ASIDE THE JUDGMENT AND AWARD DATED 27.02.2015 PASSED BY THE COURT OF THE ADDL. DISTRICT AND SESSIONS JUDGE, GADAG IN MVC NO.220/2012 AND THIS COURT MAY PASS ANY SUCH ORDERS AS DEEMS FIT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, INCLUDING THE COSTS OF THE ABOVE PROCEEDINGS, IN THE INTEREST AND JUSTICE AND EQUITY. Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:1376 MFA No. 101887 of 2015 THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) This appeal is filed by the insurance company praying to reduce the quantum of compensation by challenging the judgment and award dated 27.02.2015, passed by the Additional District and Sessions Judge, Gadag in MVC No.220/2012, on the ground that the claimant/respondent No.1 was a KSRTC bus driver, has not lost his salary or he was demoted or he was terminated from service and therefore, there could not be award of compensation under the head loss of future income due to disability. Further, on the ground that the driver of the offending lorry was not holding driving license. Hence, insurance company is not liable to indemnify the owner and pay compensation to the claimant. - 3 - NC: 2025:KHC-D:1376 MFA No. 101887 of 2015 2. The occurrence of accident, injuries sustained by the claimant and coverage of insurance are not in dispute. 3. The questions that are considered in this appeal are: i. Whether quantum of compensation awarded is appropriate or not? ii. Whether the insurance company is liable to pay compensation? 4. Learned counsel for the appellant Sri. Nagaraj C. Kalloori submitted that the claimant was working as a KSRTC bus driver. After the accident, he was not terminated from service and he continued in the same job by taking same salary. Therefore, he is not entitled to compensation under the head loss of future income due to disability. Further, submitted that the driver of the lorry was not having driving license. Therefore, insurance company is not liable to pay compensation. - 4 - NC: 2025:KHC-D:1376 MFA No. 101887 of 2015 5. The Tribunal after considering the facts and circumstances and evidence on record, has awarded total compensation of Rs.2,33,400/- along with interest at the rate of 6% per annum from the date of petition till the date of realization. 6. Admittedly, the claimant is a KSRTC bus driver, working on permanent nature basis. Though, the claimant/respondent No.1 has sustained fracture of right hand humerus but this disability has not affected, he has earning capacity being a driver of KSRTC bus. After the accident, the claimant was given lighter job but he was not terminated from service and also the claimant was not demoted or his salary was reduced. Therefore, when the claimant continued in the same job by maintaining same salary with a regular promotional avenues and increments. Therefore, compensation awarded under the head loss of income due to disability is not correct. Accordingly, it is set aside. The compensation awarded under other heads are kept in-tact. - 5 - NC: 2025:KHC-D:1376 MFA No. 101887 of 2015 7. Therefore, the claimant is entitled to total compensation of Rs.1,11,000/-(2,33,400-1,22,400) along with interest at the rate of 6% p.a. from the date of petition till the date of realization. 8. In the present case from the chargesheet material, it is proved that, the driver of lorry was not holding driving license 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 license to drive the lorry. Therefore, there is the infraction and condition of policy is proved. Hence, the Insurance Company is liable to be exonerated from liable to pay compensation. 9. The insurance company is able to establish the defence as per sub-section (2) of section 149 of M.V.Act. However, the claimant is 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 - 6 - NC: 2025:KHC-D:1376 MFA No. 101887 of 2015 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 claimant 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. 10. Therefore, the insurance company is directed to deposit the compensation within eight weeks from the - 7 - NC: 2025:KHC-D:1376 MFA No. 101887 of 2015 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. 11. In the result, I proceed to pass the following: ORDER i) The appeal is allowed in part. ii) The judgment and award dated 27.02.2015, passed by the Additional District and Sessions Judge, Gadag, in MVC No.220/2012, stands modified. iii) The claimants are entitled for total compensation of Rs.1,11,000/- along with interest at the rate of 6% p.a. from the date of petition till its realization, as against the compensation of Rs.2,33,400/- awarded by the tribunal. - 8 - NC: 2025:KHC-D:1376 MFA No. 101887 of 2015 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 the 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 lorry 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. - 9 - NC: 2025:KHC-D:1376 MFA No. 101887 of 2015 vii) Send back the trial Court records along with a copy of this judgment to the tribunal. viii) No order as to costs. ix) Draw award accordingly. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE RKM List No.: 1 Sl No.: 34