- 1 - NC: 2025:KHC-D:376-DB MFA No. 101162 of 2017 C/W MFA No. 101854 of 2017 MFA.CROB No. 100097 of 2017 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 9TH DAY OF JANUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD AND THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL NO. 101162 OF 2017 (MV-D) C/W MISCELLANEOUS FIRST APPEAL NO. 101854 OF 2017 (MV-D) MFA CROSS OBJ NO. 100097 OF 2017 (MV-D) IN MFA NO. 101162 OF 2017 BETWEEN: THE MANAGER, RELIANCE GENERAL INSURANCE COMPANY, V.A KALBURGI SQUITE, IIIRD FLOOR, DESAI CROSS, DESHPANDE NAGAR, HUBLI, REPRESENTED BY ITS AUTHORIZED SIGNATORY, RELIANCE GENERAL INSURANCE COMPANY, V.A.KALBURGI SQUIRE, IIIRD FLOOR, DESAI CROSS, DEHSPANDE NAGAR, HUBLI. …APPELLANT (BY SRI. G. N. RAICHUR, ADVOCATE) AND: 1. SMT. NANDINI @ YASHODA W/O. BASANAGOUDA GANGANNAVAR @ GOUDAR, AGE: 27 YEARS, OCC: HOUSEHOLD, R/O. GOREBAL, TQ: HUNUGUND, DIST: BAGALKOT, NOW AT HULGERI, TQ: KUSHTAGI, DIST: KOPPAL. Digitally signed by SHAKAMBARI Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:376-DB MFA No. 101162 of 2017 C/W MFA No. 101854 of 2017 MFA.CROB No. 100097 of 2017 2. SRI. AKASH S/O. BASANAGOUDA GANGANNAVAR, @ GOUDAR, AGE: 6 YEARS, MINOR, U/G. HIS NATURAL MOTHER BY NAME NANDINI, I.E., PETITIONER NO.1, R/O. GOREBAL, TQ: HUNUGUND, DIST: BAGALKOT, NOW AT HULGERI, TQ: KUSHTAGI, DIST: KOPPAL. 3. SRI. MAHANTAMMA W/O. HANAMGOUDA GANGANNAVAR @ GOUDAR, AGE: 60 YAERS, OCC: HOUSEHOLD, R/O. GOREBAL, TQ: HUNUGUND, DIST: BAGALKOT, NOW AT HULGERI, TQ: KUSHTAGI, DIST: KOPPAL. 4. SRI. BASAMMA D/O. HANAMAGOUDA GANGANNAVAR @ GOUDAR, AGE: 39 YAERS, OCC: HOUSEHOLD, UNMARRIED, R/O. GOREBAL, TQ: HUNUGUND, DIST: BAGALKOT, NOW AT. HULGERI, TQ: KUSHTAGI, DIST: KOPPAL. 5. SRIKANTH S/O. VAJRAKANT @ CHANDRAKANT HIRANDAGI, AGE: 37 YEARS, OCC: DRIVER CUM OWNER OF CAR BEARING NO. KA-28-M9592, AT POST. TEACHERS COLONY, NEAR MALLIKARJUN SWAMY ASHRAM, TQ AND DIST: BIJAPUR. …RESPONDENTS (BY SRI. P. G. MOGALI, ADV. FOR R1 TO R4; SRI. VINAY S. KOUJALAGI, ADV. FOR SRI. V. M. SHEELAVANT, ADV. FOR R5) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173(1) OF MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS AND HEAR THE PARTIES AND SET ASIDE THE JUDGMENT AND AWARD DATED 30.01.2017 PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE AND M.A.C.T AT KUSHTAGI PASSED IN MVC NO.160/2015 BY ALLOWING THIS APPEAL WITH COST IN THE ENDS OF JUSTICE AND EQUITY. - 3 - NC: 2025:KHC-D:376-DB MFA No. 101162 of 2017 C/W MFA No. 101854 of 2017 MFA.CROB No. 100097 of 2017 IN MFA NO. 101854 OF 2017 BETWEEN: 1. SRIKANT S/O. VAJRAKANT @ CHANDRAKANT HIRANDAGI, AGE: 40 YEARS, OCC. DRIVER CUM OWNER OF THE CAR BEARING NO.KA-28 M 9592, R/O. TEACHERS COLONY, NEAR MALLIKARJUN SWAMY ASHRAM, VIJAYAPURA, TQ AND DIST. VIJAYAPURA-586101. …APPELLANT (BY SRI. VINAY S. KOUJALAGI, ADV. FOR SRI. V. M. SHEELAVANT, ADVOCATE) AND: 1. SMT. NANDINI @ YASHODA, W/O. BASANGOUDA GANGANNAVAR @ GOUDAR, AGE: 28 YEARS, OCC. HOUSEHOLD, R/O. GOREBAL, TQ. HUNGUND, DIST. BAGALKOT-587201, NOW AT HULGERI, TQ. KUSHTAGI, DIST. KOPPAL. 2. SRI. AKASH S/O. BASANGOUDA GANGANNAVAR @ GOUDAR, AGE: 7 YEARS, OCC.NIL, SINCE MINOR REPRESENTED BY HIS MOTHER NATURAL GUARDIAN RESPONDENT NO.1. 3. SMT. MAHANTAMMA W/O. HANAMGOUDA GANGANNAVAR, AGE: 61 YEARS, OCC. HOUSEHOLD, R/O. GOREBAL, TQ. HUNGUND, DIST. BAGALKOT, NOW AT HULGERI, TQ. KUSHTAGI, DIST. KOPPAL. 4. SMT. BASAMMA D/O. HANAMAGOUDA GANGANNAVAR @ GOUDAR, AGE: 40 YEARS, OCC. HOUSEHOLD, UNMARRIED, R/O. GOREBAL TQ. HUNGUND, DIST. BAGALKOT, NOW AT HULGERI, - 4 - NC: 2025:KHC-D:376-DB MFA No. 101162 of 2017 C/W MFA No. 101854 of 2017 MFA.CROB No. 100097 of 2017 TQ. KUSHTAGI, DIST. KOPPAL. 5. THE MANAGER, RELIANCE GENERAL INSURANCE COMPANY LTD, V.A. KALBURGI SQUIRE, III FLOOR, DESAI CROSS, DESHPANDE NAGAR, HUBBALLI. …RESPONDENTS (BY SRI. P. G. MOGALI, ADV. FOR R1 TO R4; SRI. G. N. RAICHUR, ADV. FOR R5) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS, ALLOW THE APPEAL AND SET ASIDE THE JUDGMENT AND AWARD DATED 30.01.2017 PASSED BY THE SENIOR CIVIL JUDGE AND MACT, KUSHTAGI IN MVC NO.160/2015 IN SO FAR AS COMPENSATION AND LIABILITY ON THE APPELLANT TO THE EXTENT OF 1/3RD IS CONCERNED, IN THE INTEREST OF JUSTICE AND EQUITY. IN MFA CROB NO. 100097 OF 2017 BETWEEN: 1. SMT. NANDINI @ YASHODA, W/O. BASANAGOUDA GANGANNAVAR @ GOUDAR, AGE: 27 YEARS, OCC: HOUSEHOLD. 2. AKASH S/O. BASANAGOUDA GANGANNAVAR, @ GOUDAR, AGE: 6 YEARS, OCC: STUDENT. 3. SMT. MAHANTAMMA W/O. HANAMAGOUDA GANGANNAVAR, AGE: 60 YEARS, OCC: HOUSEHOLD. 4. SMT. BASAMMA D/O. HANAMAGOUDA GANGANNAVAR @ GOUDAR, AGE: 39 YEARS, OCC: HOUSEHOLD, ALL ARE R/O. GOREBAL, TQ: HUNGUND, - 5 - NC: 2025:KHC-D:376-DB MFA No. 101162 of 2017 C/W MFA No. 101854 of 2017 MFA.CROB No. 100097 of 2017 DT: HUNAGUND, NOW R/O. HULGERI, TQ: KUSHTAGI, DIST: KOPPAL. …CROSS-OBJECTORS (BY SRI. P. G. MOGALI, ADVOCATE) AND: 1. SRIKANTH S/O. VAJRAKANT @ CHANDRAKANT HIRANDAGI, AGE: 39 YEARS, OCC: DRIVER CUM OWNER OF CAR BEARING NO. KA-28 M-9592, R/O. TEACHERS COLONY, NEAR MALLIKARJUN SWAMY ASHRAM, AT TQ AND DIST: VIJAPUR. 2. THE MANAGER RELIANCE INSURANCE COMPANY LIMITED, V. A. KULBURGI SQUARE, IIIRD FLOOR, DESAI CROSS, DESHPANDE NAGAR, HUBBALLI, AT & TQ HUBBALLI, DT: DHARWAD. …RESPONDENTS (BY SRI. VINAY S. KOUJALAGI, ADV. FOR SRI. V. M. SHEELAVANT, ADV. FOR R1; SRI. G. N. RAICHUR, ADV. FOR R2) THIS MFA CROB IN MFA NO.101162/2017 IS FILED UNDER ORDER XLI RULE OF CPC READ WITH SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 30.01.2017 PASSED IN MVC NO.160/2015 (NEW NUMBER) AND MVC NO.274/2013 (OLD NUMBER) ON THE FILE OF THE SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL, KUSHTAGI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THESE APPEALS AND CROB COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD AND THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR - 6 - NC: 2025:KHC-D:376-DB MFA No. 101162 of 2017 C/W MFA No. 101854 of 2017 MFA.CROB No. 100097 of 2017 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR) MFA Nos.101162/2017, 101854/2017, and MFA Crob. No. 100097/2017 are directed against a single judgment and award passed in MVC No.160/2015 (new number) and MVC No.274/2013 (old number) dated 30.01.2017 passed by the Senior Civil Judge and MACT, Kushtagi. 2. As these above two appeals and Crob are arising out of a single judgment, the documents relied upon in all these appeals are common, common evidence is relied upon, and hence, with consent of both the side these two appeals and Crob are taken up together for disposal by passing the common judgment. 3. The brief and relevant facts as set out in the petition are as under: That the claimants filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, (hereinafter referred to as ‘M.V.Act’ for short), praying to award compensation of Rs.2,00,00,000/- on account of death of - 7 - NC: 2025:KHC-D:376-DB MFA No. 101162 of 2017 C/W MFA No. 101854 of 2017 MFA.CROB No. 100097 of 2017 one Basanagouda S/o. Hanamagouda Goudar @ Gangannavar who died in a road traffic accident at 01:30 pm on 20.03.2013, when he was travelling on his TVS APACHE motorbike bearing registration No.KA/29-Q-5229 from Gorebal to Ilkal on National Highway - 50 on Gorebal cross. It is alleged that when he was so moving and crossed National Highway - 50 road, at that time, the respondent No.1 by driving his car i.e., Ford Fiago bearing Registration No.KA/28-M-9592 in a rash and negligent manner endangering human life, dashed against the deceased and due to this impact, the deceased Basanagouda died on the spot. 4. It is stated that the claimants are the dependents and are the legal heirs of the deceased and they had spent Rs.50,000/- towards transportation of the dead body and funeral expenses etc. It is stated that petitioner No.1 is the wife, petitioner No.2 is the son, petitioner No.3 is the mother and petitioner No.4 is the unmarried sister of the deceased. It is stated that during his life time, deceased Basanagouda was an agriculturist and also doing Granite - 8 - NC: 2025:KHC-D:376-DB MFA No. 101162 of 2017 C/W MFA No. 101854 of 2017 MFA.CROB No. 100097 of 2017 stone transportation business and used to earn Rs.11,00,000/- per annum from his business and agriculture. Because of his death, now the claimants are deprived of their livelihood. They were fully depending upon him as he was the only earning member of the family. Therefore, the claimants prayed to award compensation as prayed for together with interest with cost from the date of accident till its realization. 5. Before the Tribunal the respondents appeared. The respondent No.2 has filed the written statement denying all the assertions with regard to the nature of the accident as alleged in the petition, the profession as an agriculturist and doing business and his age and income so also dependency of the claimants on the income of the deceased and denied that, claimants have spent of Rs.50,000/- towards funeral expenses and transportation of dead body of the deceased. It is contended that the claimants are put to strict proof of the same. - 9 - NC: 2025:KHC-D:376-DB MFA No. 101162 of 2017 C/W MFA No. 101854 of 2017 MFA.CROB No. 100097 of 2017 6. It is further contended that there is violation of policy conditions by respondent No.1. It is contended that the driver of the car was not holding the valid driving licence at the time of accident. The respondent No.1 has not complied the statutory demand as per the provisions of Motor Vehicles Act, 1988. He has not produced the relevant documents when called upon by respondent No.2. By denying all the assertions, it is contended that the claimants are not entitled for compensation. It is further contended that the claim of the claimants is highly excessive. It is contended that the deceased died because of his own negligence at the time of riding the motor vehicle, he fell down and died. Hence, it is prayed to dismiss the petition. 7. Based upon the rival pleadings of the parties, the learned Tribunal framed three relevant issues. To prove the claim of the claimants, claimant No.1 entered the witness box as PW.1 and also examined one Basavaraj S/o. Shashikant Banderagalla as PW.2 and got marked Ex.P.1 to Ex.P.26 and closed the claimants evidence. - 10 - NC: 2025:KHC-D:376-DB MFA No. 101162 of 2017 C/W MFA No. 101854 of 2017 MFA.CROB No. 100097 of 2017 8. To rebut the evidence of the claimants Amarnath S/o. Veerabhadrappa and Srikant S/o. Vajrakant were examined as RW.1 and RW.2 and Ex.R.1 to Ex.R.7 were marked in evidence. 9. The learned Tribunal on hearing the arguments and on evaluating the evidence, awarded the compensation of Rs.33,91,500/- under all the relevant heads together with interest at the rate of 8% per annum from the date of petition till realization and further directed the respondent No.1 to deposit the compensation of Rs.11,30,500/- being his 1/3rd share as he has committed the contributory negligence in causing the accident and directed the respondent No.2 to deposit the balance 2/3rd amount of Rs.22,61,000/- within 60 days from the date of award. 10. This is how, now the claimants have filed their appeal seeking enhancement of compensation, respondent Nos.1 and 2 have filed the respective appeals and Crob challenging the liability on the ground of negligence. 11. Trial Court records are secured. - 11 - NC: 2025:KHC-D:376-DB MFA No. 101162 of 2017 C/W MFA No. 101854 of 2017 MFA.CROB No. 100097 of 2017 12. The parties to these appeals are referred with reference to their rank before the Tribunal for convenience. 13. The learned counsel for the claimants submits that deceased was an agriculturist and doing Granite stone business and was earning Rs.11,00,000/- per annum. Because of untimely death of the deceased, the claimants are deprived of their livelihood. He was 40 years old at the time accident. The learned Tribunal has not considered the oral and documentary evidence led by the claimants. In fact, the deceased was an income tax assessee and he submitted the attested copies of the Income Tax returns as per Ex.P.25 and 26 and these documents have not been considered by the Tribunal while appreciating the evidence in assessing the income of the deceased. He was holding the effective Driving Licence at the time of accident. It was further contended that the claim of the claimants was quite reasonable but, the Tribunal without properly evaluating the evidence, has awarded the compensation which is on lower side. He would further submit that because of award of a lower compensation, the claimants have filed the appeal. - 12 - NC: 2025:KHC-D:376-DB MFA No. 101162 of 2017 C/W MFA No. 101854 of 2017 MFA.CROB No. 100097 of 2017 14. As against the submission, the learned counsel for the owner- respondent No.1 submit that there was no negligence on his part and fastening the liability of 1/3rd negligence is improper. He submits that as there is no violation of policy conditions, the insurance policy was valid as on the date of the accident, therefore it is respondent No.2 who has to deposit the compensation. The learned counsel for respondent No.2 submits that there is a clear violation of the policy conditions by respondent No.1 in entrusting the vehicle to the person who was not holding the Driving Licence. Therefore, the Insurance Company is absolved from payment of any compensation. He would further submit that the Tribunal has wrongly fastened the liability to the extent of 2/3rd negligence and directed the Insurance Company to deposit 2/3rd of the amount. 15. The learned counsel for the claimants as well as respondents took us through various evidence, both oral and documentary and also the findings of Tribunal and prays to allow all the respective appeals as prayed in their appeal memos. The learned counsel for the claimants seek - 13 - NC: 2025:KHC-D:376-DB MFA No. 101162 of 2017 C/W MFA No. 101854 of 2017 MFA.CROB No. 100097 of 2017 enhancement and the respondents seek setting aside of the judgment and award impugned in these appeals. 16. We have given our anxious consideration to the arguments of both sides to peruse the records. 17. In view of the rival submissions, of the parties to these appeals, the points that would arise for our consideration are: a) Whether the claimants are entitled for enhancement of compensation as prayed? b) Whether respondent No.1 being the owner of the offending vehicle is liable to pay 1/3rd of the compensation as directed by the Tribunal? c) Whether respondent-Insurance Company is absolved of payment of any compensation in view of alleged breach of policy conditions by respondent No.1-owner of the offending vehicle? 18. Points Nos.1 to 3 are discussed together. - 14 - NC: 2025:KHC-D:376-DB MFA No. 101162 of 2017 C/W MFA No. 101854 of 2017 MFA.CROB No. 100097 of 2017 19. So far as accident that occurred on 20.03.2013 at 1.30 pm, in between two vehicles, i.e.,. TVS Motorbike bearing registration No.KA.29 Q-5229 ridden by the deceased Basanagouda S/o Hanamagouda Goudar @ Gangannavar and a car bearing registration No.KA 28/M- 9592 owned by respondent No.1 is concerned, it is not in dispute. So also it is also not in dispute that in the said accident, Basanagouda S/o Hanamagouda Goudar @ Gangannavar died because of accidental injuries. A specific defence has been taken up by respondent No.1-Insurance Company that driver of the offending car was driving the Car by consuming alcohol. Therefore, the Insurance Company is not liable to pay the compensation as because there is violation of policy condition. Whereas respondent No.1 owner of the offending vehicle denies this defence. So far as claimants are concerned, they are the third parties claiming compensation on account of death of deceased in the said accident. 20. To prove the fact of the accident, the claimants have examined PW1- claimant No.1-the wife of the deceased - 15 - NC: 2025:KHC-D:376-DB MFA No. 101162 of 2017 C/W MFA No. 101854 of 2017 MFA.CROB No. 100097 of 2017 who is not an eye witness to the said accident. PW2- Basavaraj S/o Shashikant Bandergalla is an eyewitness to said accident and he categorically states that because of rash and negligent driving of the offending car, the said accident is taken place. In support of their case, the claimants rely upon Exs.P1 to P6 i.e., copy of the FIR, complaint, spot panchanama, IMV report, PM report, and charge sheet. These documents produced by the claimants do establish that the said accident has taken place because of the rash and negligent driving of the offending car by its driver. There is no effective cross examination directed to PW2, the eye witness of the said accident. Moreso, the accident is not denied by the respondents. Therefore, as rightly held by the learned Tribunal, the said accident has taken place because of rash and negligent driving of the offending car by its driver. 21. It is the specific defence of respondent No.2 that when the said accident took place, driver of the offending car had consumed alcohol and therefore, there is a contributory negligence on the part of the driver of the offending car. To - 16 - NC: 2025:KHC-D:376-DB MFA No. 101162 of 2017 C/W MFA No. 101854 of 2017 MFA.CROB No. 100097 of 2017 this effect, the Assistant Manager of respondent No.2, by name Amaranath has come before the Tribunal in the shape of RW1 and he is specific in his evidence that the husband of the petitioner also has contributed in causing the accident. It is further contended that respondent No.1 had consumed alcohol at the time of accident. He has been cross examined by the claimants with regard to consuming of alcohol by respondent No.1. RW1 has deposed ignorance about issuance of Doctor Certificate and even he has not seen the percentage of alcohol consumed by respondent No.1 at the time of accident. Whereas RW2 specifically states that, the said accident has taken place not because of his negligence, but, because of the negligence on the part of the deceased being the rider of the motorbike. He too has been cross examined by the claimants. But he deposed ignorance and denied other suggestions. He denied suggestion that doctor of the hospital had issued the certificate stating that he was driving the said vehicle at the time of accident by consuming alcohol. - 17 - NC: 2025:KHC-D:376-DB MFA No. 101162 of 2017 C/W MFA No. 101854 of 2017 MFA.CROB No. 100097 of 2017 22. Respondent No.2 much relies upon Exs.R2 the wound certificate of respondent No.1 and Ex.R3-certificate shows that respondent No.1 being the owner and driver of the said offending vehicle was found consumed alcohol and wherein it is noticed by the Doctor about presence of smell i.e., “smell-present”, it is stated in Ex.R3 as under:- i) Smell-present ii) Pupils-reactive to light iii) Speech – slurred iv) Talk-excessive talk v) Gait–unable to walk 23. This Ex.R3 is dated 20.03.2012, i.e., the date of accident, he was examined by the Doctor with a history of road traffic accident, at 1.50 pm, whereas the accident had taken place at 1.30 pm, i.e., within 20 minutes of the accident, this respondent No.1 was examined by the senior surgeon government hospital, Ilkal. The findings of doctor at Exs.R2 and R3 are not specifically denied by respondent - 18 - NC: 2025:KHC-D:376-DB MFA No. 101162 of 2017 C/W MFA No. 101854 of 2017 MFA.CROB No. 100097 of 2017 No.1. Percentage of alcohol is not mentioned in this Ex.R3 which should have been the conclusive proof regarding the consumption of alcohol to come to the conclusion to ascertain about the contributory negligence. Even the investigation report, submitted by the police officer show that the driver of the offending vehicle i.e., respondent No.2 was chargesheeted by the police not only under the provision of IPC, but also under the provision of Section 185 of M.V.Act, which speaks of driving by a drunken person or by a person under the influence of drugs. Section 185 speaks that if the person has, in his blood, alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by breathe analyser, it is offence under the provision of the M.V.Act. As per the provisions of the M.V. Act, drunken driving is an offence under the said Act. Every breach of a M.V.Act provision could not entitle Insurance Company to contend that its liability is exonerated, the defence open to Insurance Company are very much provided under the provision of Section 147 of M.V. Act. Except condition mentioned in 147 of the M.V. Act, the Insurance Company cannot take other - 19 - NC: 2025:KHC-D:376-DB MFA No. 101162 of 2017 C/W MFA No. 101854 of 2017 MFA.CROB No. 100097 of 2017 defences as per the M.V. Act. So far as liability is concerned, when policy is issued and it is valid on date of accident, as per the liability admitted or agreed by way of a contract, at the time of issuing insurance policy, the insurer cannot avoid his liability to satisfy the award under the M.V. Act on the ground that the driver of the offending vehicle drove his vehicle in a drunken condition. On scrupulous reading of the documents produced by respondent No.2, except wound certificate and certificate produced at Exs.R2 and R3, there is no material on record to show that the driver of the offending vehicle, i.e.,. respondent No.1 had, in his blood, alcohol exceeding 30 mg. per 100 ml. of blood. Moreso, there is no evidence placed on record to show that respondent No.1 was incapable of driving any vehicle or he was having any physical or mental incapacity to drive the vehicle. So also, there is no evidence to show that respondent No.1, the driver and owner of the said vehicle knowingly was suffering from any disease or disability which contributed in causing the accident. There is no evidence that he has been convicted for the said offence. No such - 20 - NC: 2025:KHC-D:376-DB MFA No. 101162 of 2017 C/W MFA No. 101854 of 2017 MFA.CROB No. 100097 of 2017 evidence is placed on record by respondent no.2. Therefore, in view of non fulfilling of the conditions with regard to the drunken driving by respondent No.2, it will not absolve the liability of the Insurance Company to satisfy the award unless and until there is any specific agreement or conditions in the policy itself. As long as there is no specific condition in the policy, the liability cannot be absolved. Therefore, we find that the contention of the counsel for the Insurance Company is not tenable either in law or facts so also as for the evidence placed on record. Moreso, the doctor who has issued Exs.R2 and R3 being author of the documents is not examined by the Insurance Company to prove the contents of the same. It is fatal to its case. Therefore, it is hard to believe the defence of the Insurance Company that because of the alleged drunken driving by respondent No.1, the accident has taken place, therefore, it is absolved from liability. The insurance policy Ex.R1 is very much silent about this fact. Thus, on cumulative reading of all this evidence, it shows that the said accident has taken - 21 - NC: 2025:KHC-D:376-DB MFA No. 101162 of 2017 C/W MFA No. 101854 of 2017 MFA.CROB No. 100097 of 2017 place because of rash and negligent driving of a offending car by respondent no.1. 24. So far as death of the deceased in the said accident is concerned, it is not in dispute. PW1 is specific that her husband during his lifetime was doing the granite business and earning sufficiently, so also he was an agriculturist by profession and was income tax assessee. To show that these claimants were the dependents of the deceased, they have produced the residential certificate as per Exs.P8 to P10 which are marked without any objection from the respondents. To show that the deceased was an agriculturist, the RTC extract are produced by the claimants, as per Exs.P11 to 16 wherein, the names of the claimants is appearing having acquired the property from ancestors. Name of the deceased also appearing as one of the co-owner/co-sharer of the properties mentioned in these Exs.P11 to 16 which is not in dispute. As other co-owners are cultivating the properties, even after demise of Basanagouda, they may be earning income from these agricultural lands. Merely because there is death of - 22 - NC: 2025:KHC-D:376-DB MFA No. 101162 of 2017 C/W MFA No. 101854 of 2017 MFA.CROB No. 100097 of 2017 Basanagouda in the said accident, it cannot be stated that no income being earned by other co-owners/co-sharers of the properties mentioned in the said RTC extract. The learned tribunal has taken agricultural income at Rs.50,000/- based upon the RTC extract being the nature of the land as well as the crop being grown therein. Even at Exs.R12 to R16 in column (9) it is stated that no crop is being grown. It is the case of the claimants that the deceased was doing the agricultural and to that effect, Ex.P17 is produced to show that he had done the business with one Vijayananda Trading Company and the amount of business was Rs.1,36,580/- and totally it is mentioned as Rs.1,36,695/-. It is document produced to show that the said agricultural produce was sold by the deceased. If that is so, the Tribunal is right in holding that these claimants may be earning Rs.50,000/- per annum from the agricultural income. We do not find any factual error with regard to the income arrived at from the agricultural operations. - 23 - NC: 2025:KHC-D:376-DB MFA No. 101162 of 2017 C/W MFA No. 101854 of 2017 MFA.CROB No. 100097 of 2017 25. To show that the deceased was doing the granite business, claimants rely upon Exs.P25 and 26, the acknowledgements for having submitted income tax returns for the assessment year 2013-14 and assessment year 2012- 13. In this regard, these two documents are produced for the assessment year 2012-13, the total income of the deceased was shown as Rs.3,26,025/- and for the year 2013-14, it is at Rs.2,66,001/-. The average of these two years income would be Rs.2,96,013/- after deducting the tax. To this income, Rs.50,000/- is to be added from the agricultural income as held above, it comes to Rs.3,46,013/. As per the judgment in National Insurance Co. Ltd., V. Pranay Sethi and Others reported in 2017 ACJ 2700, to the total income of the deceased i.e. the annual income, 40% is to be added towards future prospects. 40% of Rs. 3,46,013/- would be Rs.1,38,405/-. Thus, it would be Rs.4,84,418/- (Rs.3,46,013/- + Rs.1,38,405/-). As there were 4 dependent to the deceased, from his total income 1/4th is to be deducted towards his personal expenses as per the judgment of the Hon’ble Apex Court in Sarla Verma - 24 - NC: 2025:KHC-D:376-DB MFA No. 101162 of 2017 C/W MFA No. 101854 of 2017 MFA.CROB No. 100097 of 2017 and Others vs. Delhi Transport Corporation and another reported in AIR 2009 SC 3104. So it comes to Rs. 4,84,418 -Rs.1,21,105/-=Rs.3,63,313/-per annum. This would be the net income of the deceased as per the records available. 26. As per the documents produced by the claimants, Ex.P19-transfer certificate, deceased was born on 10.06.1979. That means his age as on the date of the accident was 33 years. The PM report shows his age as 40 years which is not disputed by either of the parties. It is a conclusive proof regarding age of the deceased. The author of Ex.P19 is not examined. Therefore, it is held that deceased was aged 40 years at the time of accident. As per the judgment in Sarla Verma Case (supra), the proper multiplier i.e., applicable is ‘15’. Therefore, the aforesaid income of Rs.3,63,313/- is to be multiplied by 15, it comes to Rs.54,49,695/- Thus, the compensation under `loss of dependency’ would comes to Rs.54,49,695/-. - 25 - NC: 2025:KHC-D:376-DB MFA No. 101162 of 2017 C/W MFA No. 101854 of 2017 MFA.CROB No. 100097 of 2017 27. So far as conventional heads like loss of estate, funeral expenses and loss of consortium is concerned, as per the judgment in Pranay Sethi case (supra), there shall be 10% hike for every three years. As the accident has taken place in the year 2013, increase in the compensation to the extent of the 30% is to be made. That means the claimants are held entitled for compensation towards `loss of estate’ at Rs.19,500/-(Rs.15,000 + 30% of Rs.15,000). Further, towards funeral expenses also, Rs.19,500/- (Rs.15,000 + 30% of Rs.15,000). As there are four dependents, towards `loss of consortium’ at the rate of Rs.40,000/- each with increase of 30%, the claimants are entitled to Rs.2,08,000/- (Rs.40,000/-+ 30% of 40,000/- x 4). Thus, the claimants are entitled for compensation as per the tabulation below:- Sl. No. Heads Amount Rs. 1. Loss of Dependency 54,49,695.00 2. Loss of estate 19,500.00 4. Towards funeral expenses 19,500.00 6. Towards Loss of consortium 2,08,000.00 Total 57,06,695.00 - 26 - NC: 2025:KHC-D:376-DB MFA No. 101162 of 2017 C/W MFA No. 101854 of 2017 MFA.CROB No. 100097 of 2017 28. So far as liability is concerned, though the Tribunal has fastened the liability to the extent of 1/3rd on the respondent owner as observed in the forgoing paras, Insurance Company is unable to prove the contributory negligence on the part of respondent no.1 in causing the accident. Based upon the Exs.R2 and R3, the Tribunal has wrongly fastened the liability to the extent of 1/3rd on respondent no.1 which in our opinion is incorrect. The Insurance Company admits the policy and has not proved any violation of the policy conditions. The documents produced by the claimants with regard to the profession of the deceased and his status as an income tax assessee having paid the income tax as per the discussion made above is not denied by the respondents. When policy is admitted and the driver of the offending vehicle was holding the effective driving licence, the primary liability is on respondent No.1 to pay the compensation, but however respondent no.2 being the insurance company under law of indemnity has to deposit the compensation amount. - 27 - NC: 2025:KHC-D:376-DB MFA No. 101162 of 2017 C/W MFA No. 101854 of 2017 MFA.CROB No. 100097 of 2017 29. So far as other findings of the learned Tribunal is concerned, respondents have not denied properly. Therefore, the appeal filed by the claimants in MFA Crob.No.100097/2017 deserves to be allowed in-part. Appeal filed by respondent No.1 in MFA No.101854/2017 is to be allowed and appeal filed in MFA No.101162/2017 filed by respondent No.2-Insurance Company is to be dismissed. Resultantly, we proceed to pass the following: ORDER i. The appeal filed by the claimants in MFA Crob.No.100097/2017 is allowed in part. Claimants/Cross-objectors are held entitled for total compensation of Rs. 57,06,695/- rounded off to Rs.57,06,700/- as against Rs.33,91,500/- thereby, enhanced compensation would be Rs.23,15,200/-. ii. The impugned judgment and award passed in MVC No.160/2015 (New No.) and MVC No.274/2013 (Old No.) dated 30.01.2017 passed by the Senior Civil Judge and MACT, Kushtagi, is hereby modified to the above extent. - 28 - NC: 2025:KHC-D:376-DB MFA No. 101162 of 2017 C/W MFA No. 101854 of 2017 MFA.CROB No. 100097 of 2017 iii. The appeal filed by respondent No.1 in MFA No.101854/2017 is allowed. The order fastening the liability on respondent no.1 to deposit the compensation to the extent of 1/3rd of total compensation is hereby set aside. iv. The appeal in MFA No.101162/2017 filed by respondent no.2-Insurance Company is dismissed. v. Respondent Nos.1 and 2 are held liable jointly and severally to pay the compensation. However, respondent no.2 to deposit the compensation amount of Rs. 57,06,700/- together with interest @6%p.a. from the date of petition till its realisation within six weeks from the date of receipt of a certified copy of this judgment, before the Tribunal. vi. So far as the apportionment and deposit of the compensation amount and its disbursement so ordered by the Tribunal, is maintained. vii. There shall be a modified award accordingly. viii. Registry to transmit the trial Court records to the concerned Tribunal along with the copy of this judgment forthwith. - 29 - NC: 2025:KHC-D:376-DB MFA No. 101162 of 2017 C/W MFA No. 101854 of 2017 MFA.CROB No. 100097 of 2017 ix. The Registry is further directed to transfer the amount in deposit to the Tribunal forthwith. Sd/- (B.M.SHYAM PRASAD) JUDGE Sd/- (RAMACHANDRA D. HUDDAR) JUDGE PJ till para No.16/Vmb/ct-an List No.: 1 Sl No.: 43