- 1 - NC: 2025:KHC-D:3529 MFA No. 101177 of 2014 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 20TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.101177 OF 2014 (MV) BETWEEN: 1. SMT. SUREKHA W/O. SANTOSH MADAR, AGE: 29 YEARS, OCC: HOUSE HOLD WORK, R/O: BEKWAD, TQ: KHANAPUR, DIST: BELAGAVI. 2. KU. PRASAD S/O. SANTOSH MADAR, AGE: 10 YEARS, OCC: STUDENT, 3. KU. VAISHNAVI D/O. SANTOSH MADAR, AGE: 2 YEARS, OCC: NIL, APPELLANTS NO.2 AND 3 ARE MINOR GUARDIAN MOTHER I.E., APPELLANT NO.1 SMT. SUREKHA W/O. SANTOSH MADAR. 4. SMT. NANDA W/O. KALLAPPA MADAR, AGE: 52 YEARS, OCC: HOUSE HOLD WORK, R/O: BEKWAD, TQ: KHANAPUR, DIST: BELAGAVI. 5. SRI. KALLAPPA S/O. RUDRAPPA MADAR, AGE: 57 YEARS, OCC: AGRICULTURE, R/O: BEKWAD, TQ: KHANAPUR, DIST: BELAGAVI. …APPELLANTS (BY SRI K.H. BAGI, ADVOCATE) Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:3529 MFA No. 101177 of 2014 AND: 1. SRI. ASHOK RAJARAM RATPUT, AGE: MAJOR, OCC: TRANSPORT BUSINESS, R/O: #820/A, DOR GALLI, KHANAPUR, DIST: BELAGAVI. 2. IFFCO-TOKIO GENERAL INSURANCE CO. LTD., REPTD., BY ITS BRANCH OFFICE, 2ND FLOOR, SHIKSAK VISHWASTH MANDAL, SHIKSHAK BHAVAN, COLLEGE ROAD, BELAGAVI. …RESPONDENTS (BY SRI M.K. SOUDAGAR, ADVOCATE FOR R2; NOTICE TO R1 IS SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173 (1) OF THE INDIAN MOTOR VEHICLES ACT, 1988, PRAYING TO FIX THE LIABILITY ON THE INSURANCE COMPANY/RESPONDENT NO.2 AND ENHANCE THE COMPENSATION FROM RS.9,78,000/- TO RS.14,00,000/- WITH 12% INTEREST BY MODIFYING THE JUDGMENT AND AWARD DATED 25.10.2013 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND ADDL. MACT, BELAGAVI IN MVC NO.1868/2012 BY ALLOWING THIS M.F.A WITH COSTS IN THE INTEREST OF JUSTICE. THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 3 - NC: 2025:KHC-D:3529 MFA No. 101177 of 2014 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) Though this appeal is listed for admission, with the consent of learned counsel for the parties, it is taken up for final disposal. 2. This appeal is filed by the claimants challenging the judgment and award dated 25.10.2013, passed in MVC No.1868/2012, by the Court of Principal Senior Civil Judge and Additional MACT, Belgaum (for short, ‘Tribunal’), seeking enhancement of compensation as well as modification of liability fastened on the owner of Bajaj auto rickshaw. 3. In this case, the factum of accident and death of deceased in the said accident are not in dispute. 4. Heard the arguments and perused the material placed before the Court. 5. Upon death of deceased in a road traffic accident occurred on 22.11.2011, the claimants being father and mother, wife and two children, have filed the claim petition seeking compensation. The Tribunal has awarded a - 4 - NC: 2025:KHC-D:3529 MFA No. 101177 of 2014 compensation of Rs.9,78,000/- along with interest at the rate of 9% per annum from the date of petition till the date of realization, by fastening liability on respondent No.1/owner of Bajaj auto rickshaw bearing registration No.KA-22/B-5147, on the reason that driver of Bajaj auto rickshaw was not holding valid and effective driving licence to drive the said vehicle. 6. Though the Tribunal has correctly held the income of deceased at Rs.6,000/-, but not added income towards loss of future prospects, therefore, the compensation towards loss of future prospects is to be re-determined by using correct parameters. 7. The deceased was aged 30 years old as on the date of accident and was doing mason work. The accident occurred on 22.11.2011. Hence, the notional income is to be taken at Rs.6,000/- per month, as recognized by the Karnataka State Legal Services Authority, which is rightly considered by the Tribunal. 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 - 5 - NC: 2025:KHC-D:3529 MFA No. 101177 of 2014 income is to be added towards loss of future prospects in life. There are five dependents i.e., father and mother, wife and two children. Therefore, 1/4th of the income is to be deducted towards his personal and living expenses. Considering the age of the deceased, the appropriate applicable multiplier is 17. Therefore loss of dependency is re-assessed and quantified at Rs.12,85,200/- (Rs.6,000 + 40% minus 1/4th x 12 x 17). 8. 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 five dependents who are father and mother, wife and two children. Accordingly, Rs.2,20,000/- (Rs.40,000 x 5 + 10%) is awarded under the head ‘loss of consortium including loss of love and affection’. 9. 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. - 6 - NC: 2025:KHC-D:3529 MFA No. 101177 of 2014 Therefore under these heads Rs.33,000/- (Rs.15,000 x 2 + 10%) is awarded. 10. 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 12,85,200 2. Towards loss of consortium (40,000 x 5 +10%) 2,20,000 3. Towards loss of estate and transportation of dead body & funeral expenses. (15,000 x 2 + 10%) 33,000 Total: 15,38,200 11. Therefore, the claimants are entitled for total compensation of Rs.15,38,200/- along with interest at the rate of 6% p.a. from the date of filing of the petition till realization, as against Rs.9,78,000/- awarded by the Tribunal. The Tribunal has awarded interest on the compensation at 9% per annum, which is scaled down to 6% per annum, since this Court is consistently awarding interest at the rate of 6% per annum. - 7 - NC: 2025:KHC-D:3529 MFA No. 101177 of 2014 REG: PAY AND RECOVERY 12. Ex.P7 is charge sheet, in which it is stated that the driver of Bajaj auto rickshaw was also charge sheeted for the offence punishable under Section 3(1) R/w Section 181 of the Motor Vehicles Act, 1988, which proved the fact that driver of Bajaj auto rickshaw bearing registration No.KA-22/B-5147 was not holding driving licence to drive the said vehicle. Therefore, in this regard, the Tribunal is correct in exonerating the Insurance Company and fastening liability on the owner of Bajaj auto rickshaw to pay compensation. 13. 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 Bajaj auto rickshaw. 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 - 8 - NC: 2025:KHC-D:3529 MFA No. 101177 of 2014 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 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. 14. Therefore, the Insurance Company is directed to deposit 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 offending vehicle as discussed above. 15. In the result, I proceed to pass the following: - 9 - NC: 2025:KHC-D:3529 MFA No. 101177 of 2014 ORDER i) The appeal is allowed in part. ii) The judgment and award dated 25.10.2013, passed in MVC No.1868/2012, by the Court of Principal Senior Civil Judge and Additional MACT, Belgaum, stands modified. iii) The claimants are entitled for total compensation of Rs.15,38,200/- along with interest at the rate of 6% p.a. from the date of petition till its realization, as against the compensation of Rs.9,78,000/- awarded by the Tribunal. 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. vi) 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. - 10 - NC: 2025:KHC-D:3529 MFA No. 101177 of 2014 vii) 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. 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 PMP List No.: 1 Sl No.: 57