- 1 - HC-KAR NC: 2025:KHC-D:8362 MFA No. 20510 of 2013 C/W MFA.CROB No. 100137 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 3RD DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 20510 OF 2013 (MV) C/W MFA CROSS OBJ NO. 100137 OF 2018 IM MFA NO. 20510 OF 2013: BETWEEN: SHRIRAM GENERAL INSURANCE CO. LTD., NEAR ENGINEERING COLLEGE, KORA COMPLEX, NAVANAGAR, BAGALKOT, NOW REPRESENTED BY ITS AUTHORIZED SIGNATORY, E-8, EPIP, RIICO, SITAPUR, JAIPUR, RAJASTAN-302 022. … APPELLANT (BY SRI. NAGARAJ C. KOLLOORI, ADVOCATE) AND: 1. SMT. YALLAVVA W/O. CHENNABASAPPA BYAHATTI, AGE: 30 YEARS, OCC: HOUSEHOLD WORK, 2. KUMAR SANTOSH S/O. CHENNABASAPPA BYAHATTI, AGE: 15 YEARS, OCC: STUDENT, 3. KUMAR IRANNA S/O CHENNABASAPPA BYAHATTI, AGE: 12 YEARS, OCC: STUDENT, Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - HC-KAR NC: 2025:KHC-D:8362 MFA No. 20510 of 2013 C/W MFA.CROB No. 100137 of 2018 ALL ARE R/O: REVADIKOPPA, TQ: RAMDURG, DIST: BELAGAVI. (RESPONDENT NO.2 AND 3 BEING THE MINOR REPRESENTED BY HIS MOTHER NATURAL GUARDIAN RESPONDENT NO.1) 4. SHIKANDAR BADASHA S/O. GAIBUSAB NAIKAR, AGE: 28 YEARS, OCC: AGRICULTURE, R/O: HAMPIHOLI, TQ: RAMDURG, DIST: BELAGAVI. … RESPONDENTS (BY SRI. H.M. DHARIGOND, ADVOCATE FOR R1, R2 AND R3; R2 AND R3 ARE MINORS R/BY R1; SRI. S.B. DODDAGOUDAR, ADVOCATE FOR R4) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED: 31.12.2011 PASSED IN M.V.C. NO.910/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDL. MACT, RAMDURG, AT: RAMDURG. IN MFA CROSS OBJ. NO. 100137 OF 2018: BETWEEN: 1. SMT. YALLAVVA W/O. CHENNABASAPPA BYAHATTI, AGE: 37 YEARS, OCC: HOUSEHOLD, R/O: REVADIKOPPA, TALUK: RAMDURG, DISTRICT: BELAGAVI-591 123. 2. KUMAR SANTOSH S/O. CHENNABASAPPA BYAHATTI, AGE: 22 YEARS, OCC: STUDENT, R/O: REVADIKOPPA, TALUK: RAMDURG, DISTRICT: BELAGAVI-591 123. - 3 - HC-KAR NC: 2025:KHC-D:8362 MFA No. 20510 of 2013 C/W MFA.CROB No. 100137 of 2018 3. KUMAR IRANNA S/O. CHENNABASAPPA BYAHATTI, AGE: 19 YEARS, OCC: STUDENT, R/O: REVADIKOPPA, TALUK: RAMDURG, DISTRICT: BELAGAVI-591 123. … CROSS OBJECTORS (BY SRI. H.M. DHARIGOND, ADVOCATE) AND: 1. SHRI. SHIKANDAR BADASHA S/O. GAIBUSAB NAIKAR, AGE: 35 YEARS, OCC: AGRICULTURE, R/O: HAMPIHOLI, TALUK: RAMDURG, DISTRICT: BELAGAVI-591 123. 2. THE BRANCH MANAGER, THE SHRIRAM GENERAL INSURANCE CO. LTD., DIVISION OFFICE, NEAR ENGINEERING COLLEGE, KORA COMPLEX, NAVANAGAR, BAGALKOT, DISTRICT: BAGALKOT-587 103. … RESPONDENTS (BY SRI. S.B. DODDAGOUDAR, ADVOCATE FOR R1; SRI. NAGARAJ C. KOLLOORI, ADVOCATE FOR R2) THIS MFA CROB. IN MFA NO.20510/2013 FILED UNDER ORDER 41 RULE 22 OF CPC., PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 31.12.2011 PASSED IN M.V.C. NO.910/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, RAMDURG, AT: RAMDURG. THIS APPEAL AND CROSS OBJECTION ARE COMING ON FOR FURTHER ARGUMENTS THIS DAY, JUDGMENT IS DELIVERED THEREIN AS UNDER: - 4 - HC-KAR NC: 2025:KHC-D:8362 MFA No. 20510 of 2013 C/W MFA.CROB No. 100137 of 2018 ORALJUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) MFA No.20510/2013 is filed by the appellant/insurance company questioning liability, whereas MFA CROB.No.100137/2018 is filed by the claimants/cross objectors seeking enhancement of compensation. 2. Both these appeals are filed being aggrieved by the judgment and award dated 31.12.2011 passed in MVC No.910/2011 by the Senior Civil Judge and Addl. M.A.C.T, Ramdurg (for short, ‘Tribunal’). 3. Brief facts giving rise to filing of these appeals are that on 16.10.2010, the deceased was traveling in a Trax bearing Reg.No.KA-06/A-8225 from Ramdurg to Sureban and due to rash and negligent driving of the tempo Trax, the deceased due to sudden opening of middle door of the vehicle, fell down on the road and sustained severe head injuries and later succumbed to injuries. - 5 - HC-KAR NC: 2025:KHC-D:8362 MFA No. 20510 of 2013 C/W MFA.CROB No. 100137 of 2018 4. Upon the claim petition, the Tribunal has awarded compensation, putting burden on the insurance company to pay compensation. 5. The counsel for the appellant argued for enhancement of compensation and justified liability fastened on the insurance company. 6. In the present case, it is the case of the claimant that the deceased was traveling by sitting inside the tempo Trax and due to sudden opening of middle door of the vehicle, the deceased jumped and fell down on the road and sustained grievous head injuries and succumbed to injuries, but upon perusal of the complaint-Ex.P2 and FIR-Ex.P1, it is ingredient in the complaint that the deceased was traveling by sitting on the roof top of the tempo Trax and fell down on the road and died. This document is produced by the claimant themselves. In order to controvert this evidence, there is no evidence from the claimant to prove that the deceased was sitting - 6 - HC-KAR NC: 2025:KHC-D:8362 MFA No. 20510 of 2013 C/W MFA.CROB No. 100137 of 2018 inside the vehicle and died in the accident. It is burden on the claimant or the owner to prove that the deceased sat inside the vehicle but there is no evidence. Whereas, the insurance company by placing reliance on the complaint and FIR, proved the fact that the deceased by sitting over the roof top, fell down on the road and sustained injuries. Therefore, for considering these evidence on all its preponderance of probabilities, it is proved that the deceased was traveling by sitting over the roof top of the tempo Trax. Therefore, under these circumstances, there is a fundamental breach of conditions of insurance policy. 7. Allowing the passenger to sit on the roof top of the vehicle is not only offence, but also it is violation of human right endangering to the human life. This issue is squarely covered by the decision of this Court in the case of The Divisional Manager, Reliance General Insurance Company Ltd., Vs. Ismail @ Ismail Khan and Others1. Therefore, the insurance company is not 1 ILR 2023 KAR 2711 - 7 - HC-KAR NC: 2025:KHC-D:8362 MFA No. 20510 of 2013 C/W MFA.CROB No. 100137 of 2018 liable to pay compensation. Even the benefit of order of pay and recovery cannot be made for the reason that the deceased could not be treated as third party. Moreover, allowing any person to sit on the top of the vehicle and compelled him to travel is nothing but violation of human right. Therefore, on these reasons, the benefit of pay and recovery cannot be extended. Therefore, when the owner and driver allowed the deceased to sit on the roof top for travelling. The owner and driver are alone liable to pay compensation. The owner is vicariously liable for the act committed by the driver. Therefore, the owner alone is liable to pay compensation. Hence, liability fastened on the insurance company is set aside. Therefore, appeal filed by the insurance company is allowed. Regarding Compensation in MFA CROB No.100137/2018. 8. In the present case, the deceased was aged 35 years old as on the date of the accident as mentioned in Ex.P6-PM report. Therefore, Tribunal has rightly taken multiplier as ‘15’. The deceased was working in the hotel. - 8 - HC-KAR NC: 2025:KHC-D:8362 MFA No. 20510 of 2013 C/W MFA.CROB No. 100137 of 2018 Hence, the notional income is to be taken at Rs.5,500/- per month, as recognized by the Karnataka State Legal Services Authority. The Tribunal has deducted 1/3rd of the income towards ‘personal expenses’ which is just and proper. 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 income is to be added towards loss of future prospects in life. Therefore, loss of dependency is re-assessed and quantified as under: Rs.5,500 + 40% x 15 x 12 x 2/3 = Rs.9,24,000/- 9. 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 for Rs.40,000/- under the head ‘loss of consortium’, along with 10% escalation. There are - 9 - HC-KAR NC: 2025:KHC-D:8362 MFA No. 20510 of 2013 C/W MFA.CROB No. 100137 of 2018 two dependents i.e., his father and mother. Accordingly, Rs.1,32,000/- (Rs.40,000 x 3 + 10%) is awarded under the head ‘loss of consortium including loss of love and affection’. Further, the claimants are entitled to Rs.16,500/- (15,000 x 2 + 10%) each towards loss of estate and funeral expenses including 10% escalation. 10. Thus, the claimants would be entitled for compensation under various heads as under: 11. Thus, the claimants are entitled to total compensation of Rs.10,89,000/- as against Rs.4,00,000/- awarded by the Tribunal along with interest at the rate of 6% p.a. from the date of filing of the petition till realization. The Tribunal has awarded interest on the Particulars Amount (in Rs.) Towards loss of dependency 9,24,000/- Towards loss of estate, transportation of dead body and funeral expenses 33,000/- Towards loss of consortium 1,32,000/- Total 10,89,000/- - 10 - HC-KAR NC: 2025:KHC-D:8362 MFA No. 20510 of 2013 C/W MFA.CROB No. 100137 of 2018 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. 12. In the result, I proceed to pass the following: ORDER i. MFA No.20510/2013 filed by the appellant/insurance company is allowed. ii. MFA CROB No.100137/2018 filed by the cross objectors/claimants is allowed in part. iii. The judgment and award dated 31.12.2011 passed in MVC No.910/2011 by the Senior Civil Judge and Addl. M.A.C.T, Ramdurg, stands modified holding that owner is liable to pay compensation. The insurance company is exonerated from its liability to pay compensation. iv. The claimants are entitled for total compensation of Rs.10,89,000/- as - 11 - HC-KAR NC: 2025:KHC-D:8362 MFA No. 20510 of 2013 C/W MFA.CROB No. 100137 of 2018 against the compensation of Rs.4,00,000/- awarded by the Tribunal. v. The entire compensation amount shall carry interest at the rate of 6% p.a. from the date of petition till its realization. vi. The owner shall deposit the aforesaid amount along with accrued interest within a period of eight weeks from the date of receipt of a copy of this judgment. vii. The amount in deposit be refunded to the appellant/insurance company forthwith. viii. Send a copy of this judgment to the Tribunal along with TCR. ix. No order as to costs. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE RKM CT:BCK LIST NO.: 1 SL NO.: 57 - 12 - HC-KAR NC: 2025:KHC-D:8362 MFA No. 20510 of 2013 C/W MFA.CROB No. 100137 of 2018 IN THE HIGH COURT OF KARNATAKA AT DHARWAD [SHRIRAM GEN. INS. CO. LTD., VS. YALLAVVA W/O. CHENNABASAPPA BYAHATTI, AND OTHERS] 08.07.2025 (VIDEO CONFERENCING / PHYSICAL HEARING) CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR ORDER ON ‘MEMO FOR BEING SPOKEN TO’ This Court, vide order dated 03.07.2025, has disposed off the appeal and cross objection by holding that the owner of tempo trax bearing registration No.KA-06/A-8225 alone shall pay compensation, by exonerating the Insurance Company to pay compensation, on the reason that the deceased travelled on the roof top of the tempo trax. 2. It is discussed in the judgment that, evidence on record on all its preponderance of probability proved the fact that, the deceased has travelled on the roof top of the tempo trax and there is no need to modify this finding in the judgment, as it is conclusively proved that the deceased travelled on the roof top of the tempo trax. 3. The learned counsel for the owner of tempo trax bearing registration No.KA-06/A-8225 submitted that even a - 13 - HC-KAR NC: 2025:KHC-D:8362 MFA No. 20510 of 2013 C/W MFA.CROB No. 100137 of 2018 person travells on the roof top of the vehicle, could also be considered as a passenger under the provisions of Karnataka Motor Vehicle Rules, 1989. He also placed reliance on a judgment of Hon’ble Division Bench of this Court in MFA No.1127/2003 dated 24.10.2008 in the case of New India Assurance Company Ltd Vs. Jayashree @ Laxmi. By placing reliance on this, as in the cited case, the facts are that the deceased was travelling on the roof top of the bus and died in the accident and in these facts and circumstances of the case also, treated the deceased as passenger and fastened liability on the Insurance Company to pay compensation. Therefore, in this case also submitted that, though the deceased has travelled on the roof top of tempo trax, he could be considered as passenger. Therefore, prays to hold the Insurance Company is liable to pay compensation. 4. In the present case, the vehicle is tempo trax, on which, the deceased travelled on roof top and died in the accident. The facts in the case of Jayashree @ Laxmi (referred supra), the vehicle is bus and the deceased and other five to six persons were travelling on the roof top of the bus - 14 - HC-KAR NC: 2025:KHC-D:8362 MFA No. 20510 of 2013 C/W MFA.CROB No. 100137 of 2018 and held that the deceased was considered as a passenger and accordingly fastened liability on the Insurance Company. 5. The difference in the facts and circumstances in the present case and in the cited case are that, the nature of vehicle is different i.e., one is bus and another one is tempo trax. Bus was having stage carriage permit, whereas, in the present case, tempo trax is permitted for contract carriage, but not stage carriage. Further, the bus is meant for carrying passengers and having stage carriage. Hence, the deceased might have been permitted to travel on the roof top of the bus. But the tempo trax in the present case is a contract carriage, shall not be used strictly as per law for stage carriage and also particularly allowing to travel on the roof top of the tempo trax. This makes difference in the above cited case. 6. Rule 2(l) of the Karnataka Motor Vehicles Rules, 1989, defines who is passenger, as under: (l) “Passenger” mean any person travelling in a public service vehicle other than the driver or the conductor or an employee of the permit holder while on duty; - 15 - HC-KAR NC: 2025:KHC-D:8362 MFA No. 20510 of 2013 C/W MFA.CROB No. 100137 of 2018 7. As per this definition, there is no mentioning in the said rules that person travelling on the roof top of the vehicle is also to be considered as passenger. ‘Passenger’ means any person travelling in a public service vehicle other than the driver or the conductor or an employee. Travelling in public service vehicle means, travelling with all basic human comfortability for travelling. Passengers being human beings cannot be considered as animals, so as to make them to travel like animals in the vehicle. Therefore, travelling in a public service vehicle means making provision conducive for travelling in the vehicle with a minimum comfortability. Even at sometimes, for standing also inside the vehicle, if there is sufficient space for standing, it may be permitted for short distance. Therefore, travelling in public service vehicle shall not be permitted, though if a person travels on the roof top of the bus, hence could not be considered as passenger. But as per law, travelling on the roof top of the vehicle is completely prohibited. When there is such prohibitory clause impliedly or expressly by law, then for such violation, the Insurance Company cannot be made liable to pay compensation. - 16 - HC-KAR NC: 2025:KHC-D:8362 MFA No. 20510 of 2013 C/W MFA.CROB No. 100137 of 2018 8. The learned counsel for the owner of tempo trax further submitted that the Insurance Company has not led evidence that inside the tempo trax there was sufficient space and therefore in the absence of such evidence by the Insurance Company, when the deceased was constrained to travel on the roof top of the bus, therefore, in absence of such evidence by the Insurance Company, the Insurance Company is liable to indemnify the owner. 9. The above said argument does not have any merit for the simple reason that it cannot be expected that the Insurance Company could lead negative evidence. When the accident occurs, upon claim petition, after service of summons, when the case is set down for trial/enquiry, it cannot be expected the Insurance Company to lead evidence that inside the vehicle there was sufficient space. Expecting negative evidence by the Insurance Company is completely absurd and not having any logic. 10. Therefore, due to difference in factual matrix in the decision of the Hon’ble Division Bench of this Court in the case of Jayashree @ Laxmi (referred supra) and in the present - 17 - HC-KAR NC: 2025:KHC-D:8362 MFA No. 20510 of 2013 C/W MFA.CROB No. 100137 of 2018 case, the judgment of the Hon’ble Division Bench of this Court is not applicable to the present case. 11. Further, this Court in MFA No.2859/2012 and other connected appeals disposed off on 28.10.2024 and MFA No.9192/2018 and connected appeals decided on 28.11.2022 held that any employee who travels on the top of roof of the vehicle or on the top of the lorry, can claim compensation from the Insurance Company. But Section 147 of the Motor Vehicles Act, 1988 is a beneficial legislature and it was held that the Insurance Company is not liable to pay compensation. Under the facts and circumstances involved in the case also, this Court in a judgment in MFA No.9192/2018 connected with other appeals dated 28.11.2022, under the facts and circumstances that any person travells on the roof top of the vehicle, the Insurance Company is not liable to pay compensation, but the owner alone is liable to pay compensation. Therefore, in the present case, as it is proved that the deceased had travelled on the roof top of the tempo trax, hence, the owner alone shall pay compensation to the claimants and the liability fastened on the Insurance Company is hereby set aside. Therefore, there is no need to make any - 18 - HC-KAR NC: 2025:KHC-D:8362 MFA No. 20510 of 2013 C/W MFA.CROB No. 100137 of 2018 modification in the order passed on 03.07.2025. Hence, the memo for being spoken to is dismissed. 12. This order on being spoken to shall be part and parcel of the order passed on 03.07.2025. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE PMP List No.: 1 Sl No.: 1