- 1 - NC: 2025:KHC-D:1911 MFA No. 22513 of 2012 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 30TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.22513 OF 2012 (MV-I) BETWEEN: THE UNITED INDIA INSURANCE CO. LTD., REP. BY THE DIVISIONAL MANAGER, DIVISIONAL OFFICE, ENKAY COMPLEX, KESHAWAPUR, HUBLI. …APPELLANT (BY SMT. PREETI SHASHANK, ADVOCATE) AND: 1. SRI. YALLAPPA S/O. DURGAPPA @ GADIGAPPA KADAPPANAVAR, AGE: 40 YEARS, OCC: CLEANER, R/O. MALALI, TQ: KUNDGOL, DISTRICT: DHARWAD. 2. SRI. LAXMAPPA S/O. CHANNAPPA SHIVANAPPANAVAR, AGE: MAJOR, OCC: OWNER OF 709 GOODS TEMPO NO.KA-28/A-3297, R/O. UMACHAGI, TQ: HUBLI, DISTRICT: DHARWAD. …RESPONDENTS (NOTICE TO R1 AND R2 ARE SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173 (1) OF MOTOR VEHICLES ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 16.11.2011 PASSED BY PRINCIPAL SENIOR CIVIL JUDGE AND ADDL. M.A.C.T., HUBLI, IN MVC NO.200/2011 AND PLEASED TO GRANT COSTS AND ETC., THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:1911 MFA No. 22513 of 2012 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) This appeal is filed by the insurance company challenging the judgment and award dated 16.11.2011, passed by the Principal Senior Civil Judge and Additional MACT, Hubli, in MVC No.200/2011. 2. The occurrence of accident, injuries sustained by the claimant and coverage of insurance are not in dispute. 3. The appeal filed by insurance company questioning the judgment and award of making an order of pay and recovery and also there was contributory negligence by the driver of Goods Tanker Lorry. The FIR, complaint and charge sheet prove the fact that the entire accident was caused due to the rash and negligent driving of the Goods Tempo in which the claimant was travelling. Therefore, the tribunal is correct in appreciating evidence on record holding that the accident is caused due to the rash and negligent driving of the Goods Tempo driver. - 3 - NC: 2025:KHC-D:1911 MFA No. 22513 of 2012 Therefore, there is no contributory negligence proved. Hence, in this regard the contention is rejected. 4. The occurrence of accident, injuries sustained by the claimant and coverage of insurance are not in dispute. 5. The Tribunal has ordered pay and recovery on the reason that the claimant has travelled in the Goods Tempo as unauthorized passenger. The only grievance of the appellant is that order of pay and recovery could not have been made. The Tribunal is correct in assessing the evidence and coming to conclusion that the claimant has travelled in the Goods Tempo as unauthorized passenger. Therefore, there is violation of terms of policy is proved. The vehicle is a Goods Tempo and is made for carrying goods only but not passengers. Therefore, permit is issued to the Goods Tempo for transport of goods. Other than that, the owner/driver have permitted the claimant to travel in the Goods Tempo. Therefore, in this regard, the insurance company has proved defence under Section 149 - 4 - NC: 2025:KHC-D:1911 MFA No. 22513 of 2012 (2) of the MV Act. Therefore, as per Section 149 of MV Act, the insurance company as if judgment debtor shall pay the compensation amount and then, they recover the amount from the owner of the goods tempo. 6. The insurance company is able to establish the defence as per sub-section (2) of section 149 of M.V.Act. However, the claimant is third party to the lorry. 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 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 claimant and then recover - 5 - NC: 2025:KHC-D:1911 MFA No. 22513 of 2012 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. 7. 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. 8. The amount awarded by the tribunal is found to be just and proper considering the nature of injuries sustained by the claimants in the accident. Therefore, the appeal is dismissed. - 6 - NC: 2025:KHC-D:1911 MFA No. 22513 of 2012 9. The amount in deposit shall be transmitted to the tribunal. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE RKM List No.: 1 Sl No.: 57