- 1 - HC-KAR NC: 2025:KHC-D:8161 MFA No. 20721 of 2013 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 27TH DAY OF JUNE 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 20721 OF 2013 (MV) BETWEEN: 1. SMT. SHAILA W/O. CHANDRANATH UPADHE, AGE: 32 YEARS, OCC: HOUSEHOLD WORK, R/O: SHEELAVANT SOMAPUR, TQ: SHIGGAON-581 205, DISTRICT: HAVERI. 2. CHANDRANATH S/O. BABURAO UPADHE, AGE: 42 YEARS, OCC: AGRICULTURE, R/O. SHEELAVANT SOMAPUR, TQ: SHIGGAON-581 205, DISTRICT: HAVERI. … APPELLANTS (BY SRI K.H. BAGI, ADVOCATE.) AND: 1. IRAPPA B. BELAVALAKOPPA, AGE: MAJOR, OCC: BUSINESS, R/O: HIREBENDIGERI, TQ: SHIGGAON, (OWNER OF VEHICLE BEARING REG. NO.KA-27/A-5656) 2. THE AUTHORISED SIGNATORY, SRIRAM GENERAL INSURANCE CO. LIMITED, A-8, EPIP, RICOH INDUSTRIAL AREA, SEETAPUR, JAIPUR, RAJASTHAN-302 022. … RESPONDENTS (BY SRI S.M. KALWAD, ADVOCATE FOR R1; SRI NAGARAJ C. KOLLOORI, ADVOCATE FOR R2.) Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - HC-KAR NC: 2025:KHC-D:8161 MFA No. 20721 of 2013 THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, PRAYING TO ENHANCE THE COMPENSATION AND FIXE THE LIABILITY ON THE INSURANCE COMPANY AND SET ASIDE THE LIABILITY FIXED ON THE OWNER OF THE VEHICLE AND MODIFY JUDGMENT AND DECREE DATED 25.05.2012 PASSED IN MVC NO.1203/2011 ON THE FILE OF THE LEARNED DISTRICT JUDGE (FAST TRACK) AND MACT, HAVERI AND ETC.,. THIS APPEAL COMING ON FOR FURTHER ARGUMENTS THIS DAY, JUDGMENT IS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) This appeal is filed by the claimants challenging the judgment and award dated 25.05.2012, passed by the District Judge (Fast Track) and MACT, Haveri, in MVC No.1203/2011, seeking enhancement of compensation as well as questioning liability fastened on the owner of the TATA Ace goods vehicle. 2. Heard the arguments addressed by the learned counsels appearing for the respective parties and perused the material placed before the Court. 3. For the purpose of convenience and easy reference, ranking of the parties is referred to as per their status before the trial Court. - 3 - HC-KAR NC: 2025:KHC-D:8161 MFA No. 20721 of 2013 4. It is the case of the claimants that on 23.08.2011, the deceased was travelling in a TATA Ace goods vehicle No.KA-27/A-5656, from Dundashi to Sheelavant Somapur and due to rash and negligent driving of the said TATA Ace goods vehicle, the accident is caused and in the said accident due to injuries sustained by the deceased, he succumbed to the injuries. Therefore, upon the claim petition filed, the tribunal has awarded compensation, but fastened liability on the owner of TATA Ace goods vehicle on the reason that the deceased has travelled in the goods vehicle as a gratuitous passenger. Hence his risk is not covered in the insurance policy. 5. Learned counsel for appellants submitted that the insurance policy is a package policy. Therefore, the risk of inmates in the goods vehicle is also covered. Hence, prays to shift the liability on the insurance company and also prays for enhancement of compensation. - 4 - HC-KAR NC: 2025:KHC-D:8161 MFA No. 20721 of 2013 6. On the other hand, learned counsel for owner of the vehicle submitted that the insurance policy is a comprehensive policy. Hence the insurance company is liable to pay compensation. Hence, supported the arguments canvassed by the learned counsel for appellants/claimants. 7. On the other hand, learned counsel for respondent insurance company submitted that in the present case admittedly the vehicle is a goods vehicle, in which the deceased travelled as a gratuitous passenger. Therefore, though the policy is a package policy, the deceased is an unauthorized passenger/gratuitous passenger. The risk is not covered. Therefore, justified the judgment and award passed by the tribunal. 8. It is the case of the claimants that it is revealed from complaint, FIR and charge sheet that the deceased had travelled in TATA Ace goods vehicle as a passenger. The deceased is not a third party. While travelling so, the - 5 - HC-KAR NC: 2025:KHC-D:8161 MFA No. 20721 of 2013 vehicle met with an accident and the deceased died. Therefore, the tribunal is correct in exonerating the insurance company to pay compensation. 9. Though the policy is a comprehensive policy, but the risk of the unauthorized passenger is not covered. Just because the policy is a comprehensive policy, it cannot be meant that all the risk is covered. Travelling by any person as a passenger in the goods vehicle is a fundamental breach. Therefore, insurance company is not liable to pay compensation. 10. It is also another submission made by the learned counsel for appellants/claimants that an order of pay and recovery could be made. 11. The principle of pay and recovery is a statutory principle as enunciated under section 149 of the Motor Vehicles Act. The principle of pay and recovery is applicable to injuries sustained or death occurred where such person is a third party. Though due to breach of - 6 - HC-KAR NC: 2025:KHC-D:8161 MFA No. 20721 of 2013 condition of policy as enumerated in sub-section (2) of Section 149 of the Motor Vehicles Act, the insurance company is not liable, but to safeguard the interest of third parties, sub-section (1) of section 149 of the Motor Vehicles Act obligates the insurance company to pay compensation as if a judgment debtor in the case of injury or death of a third party. 12. But in the present case the deceased is not a third party as he has travelled in the goods vehicle as an unauthorized passenger. Therefore, the order of pay and recovery cannot be made applicable in this case. Therefore, the owner of TATA Ace goods vehicle No.KA- 27/A-5656 alone is liable to pay compensation to the claimant. Therefore, the observation made by the tribunal in this regard is correct. Reg. quantum of compensation. 13. In this case, the occurrence of accident, death of the deceased Vrushabhanath S/o.Chandranath Upadhye - 7 - HC-KAR NC: 2025:KHC-D:8161 MFA No. 20721 of 2013 in a road traffic accident are not in dispute in this case, for which the tribunal has awarded compensation under various heads as under: Sl. No. Heads. Amount in (Rs.) 1. Loss of dependency. 5,11,872 2. Transportation of dead body and funeral expenses. 10,000 3. Loss of love and affection. 10,000 Total: 5,31,872 14. The tribunal awarded lesser amount of compensation contrary to the principles of law decided by the Hon’ble Supreme Court. Therefore, the same is required to be enhanced by modifying the judgment and award of the tribunal. 15. The deceased was aged 17 years as on the date of accident. The accident is caused on 23.08.2011. Income proof is not produced. Hence, in the absence of proof of income, notional income is to be taken at Rs.6,000/- for the year 2011, as recognized by the Karnataka State Legal Services Authority. In view of the decision of the Hon’ble - 8 - HC-KAR NC: 2025:KHC-D:8161 MFA No. 20721 of 2013 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. The deceased was a bachelor. Therefore 50% of the income is to be deducted towards his personal and living expenses. Considering the age of the deceased, the appropriate applicable multiplier is 18. Therefore loss of dependency is re-assessed and quantified at Rs.9,07,200/- (Rs.6,000 + 40% minus 50% x 12 x 18). 16. 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 two claimants who are father and mother. Accordingly, Rs.88,000/- (Rs.40,000 x 2 + 10%) is awarded under the - 9 - HC-KAR NC: 2025:KHC-D:8161 MFA No. 20721 of 2013 head ‘loss of consortium including loss of love and affection’. 17. 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. Therefore under these heads Rs.33,000/- (Rs.15,000 x 2 + 10%) is awarded. 18. 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 9,07,200 2. Towards loss of consortium (40,000 x 2 +10%) 88,000 3. Towards loss of estate and transportation of dead body & funeral expenses. (15,000 x 2 + 10%) 33,000 Total: 10,28,200 19. Therefore, the claimants are entitled for total compensation of Rs.10,28,200/- along with interest at the rate of 6% p.a. from the date of filing of the petition till - 10 - HC-KAR NC: 2025:KHC-D:8161 MFA No. 20721 of 2013 realization, as against Rs.5,31,872/- awarded by the tribunal. The owner of the vehicle is directed to deposit the compensation within eight weeks from the date of receipt of a certified copy of this judgment. 20. In the result, I proceed to pass the following: ORDER i) The appeal is allowed in part only insofar as quantum of compensation is concerned. ii) The judgment and award dated 25.05.2012, passed by the District Judge (Fast Track) and MACT, Haveri, in MVC No.1203/2011, stands modified. iii) The claimants are entitled for total compensation of Rs.10,28,200/- along with interest at the rate of 6% p.a. from the date of petition till its realization, as against the - 11 - HC-KAR NC: 2025:KHC-D:8161 MFA No. 20721 of 2013 compensation of Rs.5,31,872/- awarded by the tribunal. iv) The owner of the offending vehicle shall deposit the amount within a period of eight weeks from the date of receipt of a copy of this judgment. v) The order with regard to apportionment of compensation, deposit and release of amount would be as per order of tribunal. vi) Send back trial Court records along with a copy of this judgment and award to the tribunal. vii) No order as to costs. viii) Draw award accordingly. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE MRK CT: BCK LIST NO.: 1 SL NO.: 63