- 1 - NC: 2025:KHC-D:5628 MFA No. 100206 of 2017 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 26TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE UMESH M ADIGA MISCELLANEOUS FIRST APPEAL NO. 100206 OF 2017 (MV-D) BETWEEN: ORIENTAL INSURANCE CO. LTD, ISSUE OFFICE EXTN. COUNTER AMBEJOGAI, GAL NO.63, AND 69, NAGAR PAISHAD COMPLEX, PARLI ROAD, OPP: S.T. STAND AMBAJOGAI, DIST: BEED MAHARASHTRA, REPRESENTED THROUGH ITS REGIONAL OFFICE, SUMANGALA COMPLEX, II FLOOR, LAMINGTON ROAD, HUBBALLI, REPRESENTED BY ITS DEPUTY MANAGER, PIN CODE: 580020. …APPELLANT (BY SMT. PREETI SHASHANK, ADVOCATE) AND: 1. MOHAMMED YUSUF MOHADDINSAB MULLA, AGE 49 YEARS, OCC: DRIVER, R/O. H.NO.1071/3, 8TH CROSS, ADILSHA GALLI, Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:5628 MFA No. 100206 of 2017 NEW GANDHI NAGAR, DIST: BELAGAVI, PIN CODE: 290016. 2. SMT. MUMTAZ MOHAMMED YUSUF MULLA, AGE 47 YEARS, OCC: HOUSEHOLD, R/O. H.NO.1071/3, 8TH CROSS, ADILSHA GALLI, NEW GANDHI NAGAR, DIST: BELAGAVI, PIN CODE: 290016. 3. MR.SUDHAKAR BHANUDAS TOPNDE, AGE MAJOR, OCC: BUSINESS, R/O. AT SONIMOHA, POST: CHOUNDI, TQ: DHARUR, DIST: BEED, MAHARASHTRA STATE, PIN CODE: 431708. …RESPONDENTS (BY SRI. G. N. NARASAMMANAVAR, ADV.FOR SRI. LOKESH MALAVALLI, ADV. FOR R1 & R2; NOTICE TO R3 IS SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO CALL FOR THE RECORDS CONNECTED WITH MVC.2862/2013 ON THE FILE OF THE V ADDL. DISTRICT AND SESSIONS JUDGE AND MACT VI, BELAGAVI, EXAMINE THE SAME AND SET ASIDE THE AWARD DATED 20.10.2016 IN THE INTEREST OF JUSTICE. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - NC: 2025:KHC-D:5628 MFA No. 100206 of 2017 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) 1. This appeal is by the appellant-insurer challenging the judgment and award dated 20.10.2016 passed in MVC No.2862 of 2013 on the file of the learned V Addl.District and Sessions Judge and MACT-VI, Belagavi (for short, ‘the Tribunal’). 2. Parties are referred to as per their ranking before the Tribunal. 3. Brief facts of the case are that on 17.01.2013 at about 10:20 a.m., the deceased Nasarullah s/o Mohammad Yusuf Mulla, who is the son of claimants met with an accident near Hira Auto Consultant Garage, Uzwal nagar, Belagavi due to rash and negligent driving of lorry bearing registration No.MH-23/1233 by its driver. Due to the accident he sustained grievous injuries and succumbed to the injuries at the spot. Deceased was aged about 18 years and he was working as a mechanic to repair fridges and earning Rs.300/- per day. He was contributing his - 4 - NC: 2025:KHC-D:5628 MFA No. 100206 of 2017 earning to the maintenance of the family. Due to his death claimants have been suffering. With these reasons prayed to award compensation. s 4. Respondent No.2 filed written statement denying the contention of the claimants. It is further stated that the owner of the lorry had violated the terms and conditions of policy of insurance and plying the vehicle beyond permitted limit. The driver of the offending vehicle had no driving licence at the time of accident, therefore respondent No.2 is 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 13 documents as per Exs.P1 to P13. Respondent examined one witness as RW1 and marked 3 documents as Exs.R1 to R3. 7. After hearing both the parties the Tribunal held that accident occurred due to rash and negligent driving of lorry by its driver resulting in death of Nasarullah. The Tribunal assessed the age of deceased as 18 years, - 5 - NC: 2025:KHC-D:5628 MFA No. 100206 of 2017 applied multiplier as 18 and assessed income of the deceased at Rs.6,000/- added 50% of the income towards future prospects and deducted 50% of the income towards personal and living expenses and awarded compensation under the head of loss of dependency. The Tribunal has awarded following amount of compensation: i. Loss of dependency :Rs.9,72,000.00 ii. Loss of love & affection :Rs.1,00,000.00 iii. Transportation of body :Rs. 25,000.00 iv. Loss of estate :Rs.1,00,000.00 Total :Rs.11,97,000.00 8. The Tribunal held that owner and insurer are jointly and severely responsible to pay the compensation. Being aggrieved by the said judgment and award, insurer challenged the same in the present appeal on the ground of its liability to pay compensation as well as quantum of compensation. 9. Heard the arguments of both the sides. 10. Fact of accident is not in dispute. Death of Nasarulla is also not in dispute. Therefore there is no need to re-consider the same. - 6 - NC: 2025:KHC-D:5628 MFA No. 100206 of 2017 11. Learned counsel for the appellant contends that the Tribunal has added 50% of the income towards future prospects and it is not permissible according to settled law. Since the deceased had no fixed salary therefore at the most 40% of the income could be added towards future prospects and on that basis compensation can be re-calculated. 12. Learned counsel for the appellant further submitted that the amount of compensation awarded under the conventional head is also on higher side. And further submits that as per the law laid down in the case of National Insurance Company Limited Vs.Pranay Sethi and others reported in (2017) 16 SCC 680 as well as in the case of Magma General Insurance Co. Ltd., Vs. Nanu Ram and others reported in (2018) 18 SCC 130, the compensation may be awarded under the conventional heads. 13. Learned counsel for the claimants vehemently contends that Tribunal has awarded just and reasonable amount of compensation and it does not call for any - 7 - NC: 2025:KHC-D:5628 MFA No. 100206 of 2017 interference by this Court. Claimants have lost their young son, aged about 18 years who was looking after them. Considering the said fact the amount of compensation awarded by the Tribunal is on lower side, therefore prayed for dismissal of the appeal. 14. The Tribunal has taken income of the deceased as Rs.6,000/- per month. As held in the case of Pranay Sethi referred supra in the case of death of person on vehicle accident aged below 40 years, 40% of his income shall be added towards future prospects. Same could be applied to the present case instead of 50%. Undisputedly the multiplier applicable is 18 years. He was unmarried therefore 50% of his income has to be deducted towards personal and living expenses. On that basis compensation is to be re-calculated under the head loss of dependency. 15. As rightly submitted by the learned counsel for the appellant amount of compensation awarded under the conventional head also is on higher side and not in accordance with the ratio of law laid down in the case of Pranay Sethi referred supra. Therefore compensation has - 8 - NC: 2025:KHC-D:5628 MFA No. 100206 of 2017 to be re-calculated and awarded under the conventional head. Accordingly the following amount of compensation is awarded: i. Loss of dependency :Rs.9,07,200.00 ii. Medical expenses :Rs.1,13,000.00 iii. Loss of consortium :Rs. 80,000.00 iv. Loss of estate :Rs. 15,000.00 v. Funeral expenses :Rs. 15,000.00 Total :Rs.11,30,200.00 16. The claimants are entitled for Rs.11,30,200 as against Rs.11,97,000/- awarded by the Tribunal. 17. The claimants are also entitled for interest on the said amount of compensation as awarded by the Tribunal. 18. The main contention of the appellant is that driver of the offending vehicle has no valid and effective licence to drive the said class of vehicle. In spite of denial of the said fact owner of the vehicle did not produce the licence of the driver therefore adverse inference has to be drawn. Similarly the said vehicle had permit to ply within the State of Maharashtra and the place of accident is at Belagavi. Therefore without proper permit driver of the - 9 - NC: 2025:KHC-D:5628 MFA No. 100206 of 2017 said vehicle travelled beyond the permitted limit. On both counts owner of the offending vehicle committed breach of conditions of policy and hence respondent No.2-insurer is not liable to pay the compensation. 19. Learned counsel for the claimants vehemently contends that it is the duty of the insurer to prove that driver of the offending vehicle had no valid and effective driving licence and it was travelling beyond permit limit. Except the evidence of RW1, there are no other materials to prove that driver of the offending vehicle had no licence to drive the said class of vehicle and the said vehicle had traveled beyond the permitted limit. Therefore the said contention needs to be rejected. He further submits that even if the said contention is accepted then it is not in dispute that the said vehicle was insured with respondent No.2 and policy was in force as on the date of accident. Therefore the insurer be directed to pay the compensation and it may be at liberty to recover the same from the owner of the vehicle. - 10 - NC: 2025:KHC-D:5628 MFA No. 100206 of 2017 20. RW1 in his evidence has stated that driver of the lorry has no valid licence. He denied suggestion of claimants that driver of the said lorry had valid and effective driving licence. Claimants have also not produced the driving licence. RW1 has also stated that he has not enquired regarding the permit of the said vehicle. Claimants have produced the permit. The said permit shows that it was permitted to ply within the State of Maharashtra. Admittedly accident occurred within State of Karnataka. It proves that owner of the vehicle violated permit limit. The Tribunal in the impugned judgment held that since the said vehicle had permit and hence it can ply in Karnataka also. The said reason assigned by the Tribunal is not correct. 21. It is not in dispute that the driver of the offending vehicle had no valid driving licence to drive said class of vehicle at the time of accident. Both these facts are violation of condition of policy of insurance. However it is not in dispute that policy of insurance was in force as on the date of the accident. As held in the case of Rani & - 11 - NC: 2025:KHC-D:5628 MFA No. 100206 of 2017 Others Vs. National Insurance Company Limited & Others reported in 2018 ACJ 2430, the Hon’ble Apex Court has held that insurer shall pay the compensation and it can recover it from the owner of the vehicle. 22. For the aforesaid reasons, this Court proceed to pass the following: ORDER i. Appeal is allowed in part. ii. The impugned judgment and award dated 20.10.2016 passed in MVC No.2862 of 2013 on the file of the learned V Addl.District and Sessions Judge and MACT-VI, Belagavi is modified. iii. The claimants are entitled for compensation of Rs.11,30,200/- as against Rs.11,97,000/- awarded by the Tribunal with interest at the rate of 6% per annum from the date of petition till its realization. iv. Respondent No.2 shall deposit the said amount within 6 weeks from the date of - 12 - NC: 2025:KHC-D:5628 MFA No. 100206 of 2017 passing of the award and it is at liberty to recover the same from the owner of the vehicle in an appropriate proceedings. v. Apportionment, deposit and release of the amount are as ordered by the Tribunal. vi. Whatever amount deposited by the appellant shall be transmitted to the Tribunal. vii. Send back the TCR along with copy of this judgment. Sd/- (UMESH M ADIGA) JUDGE KGK/ CT-AN List No.: 1 Sl No.: 44