- 1 - HC-KAR NC: 2025:KHC-D:7900 MFA No. 25101 of 2012 C/W MFA No. 25100 of 2012 MFA.CROB No. 884 of 2013 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 20TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 25101 OF 2012 (MV-I) C/W MISCELLANEOUS FIRST APPEAL NO. 25100 OF 2012 MFA CROSS OBJ NO. 884 OF 2013 IN MFA NO. 25101 OF 2012: BETWEEN: SINJAV J. FERNANDES, AGE: MAJOR, OCC: NIL, R/O: HARUMASKERI, NADUMASKERI, TQ: KUMTA. … APPELLANT (BY SRI. R.H. ANGADI, ADVOCATE) AND: 1. SANDYA SHETTY W/O CHANDRASHEKAR SHETTY, AGE: 40 YEARS, OCC: HOUSE WIFE, R/O: CHOUDGERI CROSS, GOKARNA, TQ: KUMTA (N.K.) 2. THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE COMPANY LTD., DIVISIONAL OFFICE, KARWAR. … RESPONDENTS (BY SRI. M.M. HIREMATH, ADVOCATE FOR R1; SRI. S.V. YAJI, ADVOCATE FOR R2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, 1988, PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND AWARD Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - HC-KAR NC: 2025:KHC-D:7900 MFA No. 25101 of 2012 C/W MFA No. 25100 of 2012 MFA.CROB No. 884 of 2013 DATED: 08-08-2012 PASSED IN MVC NO.68/2010 ON THE FILE OF THE LEARNED ADDITIONAL MACT, KUMTA. IN MFA NO. 25100 OF 2012: BETWEEN: SRI. SINJAV J. FERNANDES, AGE: MAJOR, OCC: NIL, R/O: HARUMASKERI, NADUMASKERI, TQ: KUMTA. … APPELLANT (BY SRI. R.H. ANGADI, ADVOCATE) AND: 1. SOMANATH S/O NARYAN NAYAK, AGE: 52 YEARS, OCC: SERVICE, R/O: DEVARABAVI, POST: TORKE, TQ: KUMTA (N.K.) 2. MEENAXI W/O SOMANATH NAYAK, AGE: 39 YEARS, OCC: HOUSEHOLD, R/O: DEVARABAVI, POST: TORKE, TQ: KUMTA (N.K.) 3. UNITED INDIA INSURANCE COMPANY LTD., HULIDEV COMPLEX, IST FLOOR, GIBBS HIGH SCHOOL ROAD, KUMTA (N.K.) … RESPONDENTS (BY SRI. S.L. MATTI, ADVOCATE FOR R1 AND R2; SRI. S.V. YAJI, ADVOCATE FOR R3) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, 1988, PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND AWARD DATED: 08-08-2012 PASSED IN MVC NO.110/2011 ON THE FILE OF THE LEARNED ADDITIONAL MACT, KUMTA. - 3 - HC-KAR NC: 2025:KHC-D:7900 MFA No. 25101 of 2012 C/W MFA No. 25100 of 2012 MFA.CROB No. 884 of 2013 IN MFA CROB. NO. 884 OF 2013: BETWEEN: 1. SRI. SOMANATH S/O NARAYAN NAYAK, AGE: 52 YEARS, OCC: SERVICE, R/O: DEVARABAVI, POST: TORKE, TQ: KUMTA (N.K.) 2. SMT. MEENAXI W/O SOMANATH NAYAK, AGE: 39 YEARS, OCC: HOUSEHOLD, R/O: DEVARABAVI, POST: TORKE, TQ: KUMTA (N.K.) … CROSS OBJECTORS (BY SRI. S.L. MATTI, ADVOCATE) AND: 1. SRI. SINJAV J. FERNANDES, AGE: MAJOR, OCC: NIL, R/O: HARUMASKERI, NADUMASKERI, TQ: KUMTA. 2. UNITED INDIA INSURANCE COMPANY LTD., HULIDEV COMPLEX, 1ST FLOOR, GIBBS HIGH SCHOOL ROAD, KUMTA (N.K.) … RESPONDENTS (BY SRI. S.V. YAJI, ADVOCATE FOR R2; R1-SERVED) THIS MFA CROB. IN MFA NO.25100/2012 IS FILED UNDER ORDER 41 RULE 22(1) AND (2) OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED: 08-08-2012 PASSED IN M.V.C. NO.110/2011 ON THE FILE OF THE ADDITIONAL M.A.C.T., KUMTA. THESE APPEALS AND CROSS OBJECTION, COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT IS DELIVERED THEREIN AS UNDER: - 4 - HC-KAR NC: 2025:KHC-D:7900 MFA No. 25101 of 2012 C/W MFA No. 25100 of 2012 MFA.CROB No. 884 of 2013 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) MFA Nos.25101 and 25100 of 2012 are filed by the owner of the Mahindra Maxi Cab Tempo bearing Reg.No.KA-30/1879 challenging the judgment and award dated 08.08.2012 passed in MVC Nos.68/2010 and 110/2011 on the file of Additional MACT, Kumta1 questioning the liability fastened on him to pay compensation. 2. Whereas, MFA Crob.No.884/2013 is filed by the cross objectors challenging the judgment and award dated 08.08.2012 passed in MVC No.110/2011 on the file of Additional MACT, Kumta, seeking enhancement of compensation. 3. The occurrence of accident, death of the deceased minor girl by name Neha (for short ‘the deceased’) in a road traffic accident, coverage of insurance are not in 1 (hereinafter referred to as ‘the Tribunal’ for short) - 5 - HC-KAR NC: 2025:KHC-D:7900 MFA No. 25101 of 2012 C/W MFA No. 25100 of 2012 MFA.CROB No. 884 of 2013 dispute in this case. The disputed question is regarding fastening of liability on the owner of the Mahindra Maxi Cab Tempo to pay compensation. 4. The Tribunal while appreciating the evidence on record has came to conclusion that the driver of the Mahindra Maxi Cab Tempo bearing Reg.No.KA-30/1879 was not holding driving licence to drive the said Mahindra Maxi Cab Tempo. Thus, exonerated the Insurance Company and fastened liability on the owner of the Mahindra Maxi Cab Tempo. 5. When the specific contention taken by the Insurance Company is that the driver of Mahindra Maxi Cab Tempo bearing Reg.No.KA-30/1879 was not holding driving licence, then it is burden on the owner of the Mahindra Maxi Cab Tempo bearing Reg.No.KA-30/1879 to produce driving licence and to prove this fact, the owner of the Mahindra Maxi Cab Tempo has not produced driving licence. Therefore, the Tribunal is correct in holding that - 6 - HC-KAR NC: 2025:KHC-D:7900 MFA No. 25101 of 2012 C/W MFA No. 25100 of 2012 MFA.CROB No. 884 of 2013 the driver of Mahindra Maxi Cab Tempo was not holding driving licence and the Insurance Company is rightly exonerated from the liability. Therefore, the appeals filed by the owner of the Mahindra Maxi Cab Tempo are liable to be dismissed. REGARDING QUANTUM OF COMPENSATION: IN MFA CROB.NO.884/2013 (MVC No.110/2011) 6. In the present case, the claimants/cross objectors, being parents of the deceased minor girl, who was aged 9 years have filed this cross objection seeking enhancement of compensation. 7. Upon the claim petition filed by the claimants/cross objectors, the Tribunal has awarded compensation of Rs.1,55,000/- along with interest at the rate of 6% p.a. from the date of petition till the date of award. 8. The Tribunal awarded lesser amount of compensation. In the present case, the deceased was a - 7 - HC-KAR NC: 2025:KHC-D:7900 MFA No. 25101 of 2012 C/W MFA No. 25100 of 2012 MFA.CROB No. 884 of 2013 minor girl of 9 years old. Therefore, as per the decision of the Hon’ble Supreme Court in the case of KISHAN GOPAL AND ANOTHER VS. LALA AND OTHERS2, for non earning member and minor girl, yearly income is to be taken at Rs.30,000/- and the applicable multiplier is 15. Therefore, the compensation under the head loss of dependency would be Rs.4,50,000/- (Rs.30,000/- x 15). 9. Further Rs.50,000/- is awarded under conventional heads towards loss of love and affection, funeral expenses. Thus, the claimants would be entitled for a total compensation of Rs.5,00,000/-, along with interest at the rate of 6% p.a. from the date of filing of the petition till realization, as against Rs.1,55,000/- awarded by the Tribunal. The owner of Mahindra Maxi Cab Tempo is directed to deposit the compensation amount within eight weeks from the date of receipt of a certified copy of this judgment. 2 (2014) 1 SCC 244 - 8 - HC-KAR NC: 2025:KHC-D:7900 MFA No. 25101 of 2012 C/W MFA No. 25100 of 2012 MFA.CROB No. 884 of 2013 PAY AND RECOVERY: 10. In the present case, the Tribunal has observed that the driver of the Mahindra Maxi Cab Tempo had not possessed driving licence at the time of accident and the owner also has not produced driving licence. Therefore, fastened liability on the owner of the Mahindra Maxi Cab Tempo to pay compensation. However, as per Sub-section (2) of Section 149 of the MV Act, when the Insurance Company established the fact that the driver was not holding driving licence, then as per Sub-sections (1), (4), (7) of Section 149 of the Act, the Insurance Company as if the judgment debtor shall satisfy the claim in respect of third parties and then recover the same from the owner of the Mahindra Maxi Cab Tempo. Accordingly, the order of pay and recovery is made 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 ANOTHER3; NATIONAL INSURANCE COMPANY 3 (2018) 3 SCC 208 - 9 - HC-KAR NC: 2025:KHC-D:7900 MFA No. 25101 of 2012 C/W MFA No. 25100 of 2012 MFA.CROB No. 884 of 2013 LIMITED VS. SWARAN SINGH AND OTHERS4 and also as per the full bench decision of this Court in the case of NEW INDIA ASSURANCE COMPANY LIMITED VS. YELLAVVA AND ANOTHER5. Accordingly, an order of pay and recovery is made. 11. Just because an order of pay and recovery made that does not mean that the Insurance Company is jointly and severally liable to pay compensation along with the owner of vehicle. As discussed above, the benefit of pay and recovery is to the third party. Since, the claimants being parents of the deceased minor girl by name Neha in this case are third parties to the Mahindra Maxi Cab Tempo. Therefore, by exonerating the Insurance Company, it is directed the Insurance Company to pay compensation at first instance then recover it from the owner of the Mahindra Maxi Cab Tempo. Therefore, the appeal is liable to be allowed in part. 4 (2004) 3 SCC 297 5 2020 ACJ 2560 - 10 - HC-KAR NC: 2025:KHC-D:7900 MFA No. 25101 of 2012 C/W MFA No. 25100 of 2012 MFA.CROB No. 884 of 2013 12. In the result, I proceed to pass the following: ORDER i. The appeal in MFA Nos.25101 and 25100 of 2012 filed by the owner of Mahindra Maxi Cab Tempo are dismissed. ii. MFA Crob.No.884/2013 filed by the cross objectors is allowed-in-part. iii. The judgment and award dated 08.08.2012 passed in MVC No.110/2011 on the file of Additional MACT, Kumta, stands modified. iv. The cross objectors in MFA Crob.No.884/2013 are entitled for total compensation of Rs.5,00,000/-, along with interest at the rate of 6% p.a. from the date of filing of the petition till realization, as against Rs.1,55,000/- awarded by the Tribunal. v. The owner of the Mahindra Maxi Cab Tempo shall deposit the amount within a - 11 - HC-KAR NC: 2025:KHC-D:7900 MFA No. 25101 of 2012 C/W MFA No. 25100 of 2012 MFA.CROB No. 884 of 2013 period of eight weeks from the date of receipt of a copy of this judgment. vi. Send back the trial Court records along with a copy of this judgment and award to the Tribunal. vii. The amount in deposit, if any, shall be transmitted to the concerned Tribunal for disbursement. viii. No order as to costs. In view of disposal of the appeals and cross objection, pending IAs’, if any, shall stand disposed of. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE SRA CT:BCK LIST NO.: 1 SL NO.: 74