- 1 - HC-KAR NC: 2025:KHC:26326 MFA No. 11131 of 2012 C/W MFA No. 11130 of 2012 MFA No. 1672 of 2013 AND 1 OTHER IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE UMESH M ADIGA MISCELLANEOUS FIRST APPEAL NO. 11131 OF 2012 (MV) C/W MISCELLANEOUS FIRST APPEAL NO. 11130 OF 2012 MISCELLANEOUS FIRST APPEAL NO. 1672 OF 2013 MFA CROSS OBJECTION NO. 24 OF 2013 (MV-D) IN MISCELLANEOUS FIRST APPEAL NO. 11130 OF 2012 IN MFA No. 11131/2012 BETWEEN: 1. THE MANAGER CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED, DERE HOUSE II FLOOR, N.S.C. BOSE ROAD, CHENNAI - 600 001, BY CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED, NO 135/5, 15TH CROSS, J.P. NAGAR, 3RD PHASE, BANGALORE-560078. …APPELLANT (BY SRI. O MAHESH, ADVOCATE) AND: 1. RAJESH, S/O V.S.SHIVAN, AGE 27 YEARS, CHANDRAVADI VILLAGE, Digitally signed by KORLAHALLI BHARATHIDEVIKRISHNACHARYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:26326 MFA No. 11131 of 2012 C/W MFA No. 11130 of 2012 MFA No. 1672 of 2013 AND 1 OTHER HULLAHALLI HOBLI, NANJANAGUDU TALUK, CHAMARAJANAGARA DISTRICT - 571 313 2. B.P.KUMARA, S/O PUTTASWAMAIAH, AGED 46 YEARS, R/AT NO 133, HOLE NARASIPURA, HASSAN DISTRICT - 573 201. 3. MANJUNATHA, S/O LATE VEERABHADRASHETTY, AGED 41 YEARS, NO 16, KABBINAHALLI VILLAGE, HARADANAHALLI POST, HOLE NARASIPURA TALUK, HASSAN DISTRICT - 573 201. …RESPONDENTS (R1 SERVED, V/O DATED 05.02.2015 NOTICE TO R2 AND R3 ARE HELD SUFFICIENT) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 26.9.2012 PASSED IN MVC NO.24/2011 ON THE FILE OF MOTOR ACCIDENT CLAIMS TRIBUNAL AND SENIOR CIVIL JUDGE, NANJANGUDU. IN MFA NO. 11130/2012 BETWEEN: 1. THE MANAGER CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED, DERE HOUSE II FLOOR, N.S.C. BOSE ROAD, CHENNAI - 600 001, BY CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED, NO 135/5, 15TH CROSS, J.P. NAGAR, 3RD PHASE, BANGALORE-560078. ...APPELLANT (BY SRI. O MAHESH.,ADVOCATE) - 3 - HC-KAR NC: 2025:KHC:26326 MFA No. 11131 of 2012 C/W MFA No. 11130 of 2012 MFA No. 1672 of 2013 AND 1 OTHER AND: 1. V.S.SHIVAN, AGE 51 YEARS, S/O LATE SHIVARAMAN, 2. LEELA, AGED 49 YEARS, W/O V.S. SHIVAN, 3. SINDHU, AGED 29 YEARS, D/O V.S. SHIVAN, ALL ARE R/O CHANDRAVADI VILLAGE, HULLAHALLI HOBLI, NANJANAGUDU TALUK, CHAMARAJANAGARA DISTRICT-571313 4. B.P. KUMARA, AGED 46 YEARS, S/O PUTTASWAMAIAH, R/AT NO.133, HOLE NARASIPURA, HASSAN DISTRICT-573201 5. MANJUNATHA, AGED 41 YEARS, S/O LATE VEERABHADRASHETTY, R/O NO.16, KABBINAHALLI VILLAGE, HARADANAHALLI POST, HOLE NARASIPURA TALUK, HASSAN DISTRICT-573201 ...RESPONDENTS (BY SMT. B.N.MANJULA, ADVOCATE FOR SRI. R.C.NAGARAJ, ADVOCATE FOR R1 TO R3, V/O DATED 05.02.2025, NOTICE TO R4 IS HELD SUFFICIENT, SRI. B.ROOPESHA, ADVOCATE FOR R5) - 4 - HC-KAR NC: 2025:KHC:26326 MFA No. 11131 of 2012 C/W MFA No. 11130 of 2012 MFA No. 1672 of 2013 AND 1 OTHER THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 26.09.2012 PASSED IN MVC NO.23/2011 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL AND THE SENIOR CIVIL JUDGE, NANJANGUDU. IN MFA NO. 1672/2013 BETWEEN: 1. RAJESH S/O V.S.SHIVAN, AGED ABOUT 27 YEARS, CHANDRAVADI VILLAGE, HULLAHALLI HOBLI, NANJANAGUD TALUK, MYSORE DISTRICT-571301. ...APPELLANT (BY SMT. B.N.MANJULA, ADVOCATE FOR SRI. R.C. NAGARAJ, ADVOCATE) AND: 1. B.P.KUMAR, S/O PUTTASWAMAIAH, AGED ABOUT 45 YEARS, DOOR NO. 133, HOLENARASIPURA, HASSAN DISTRICT-573201. 2. MANJUNATH, S/O LATE VIRABHADRASHETTY, AGED ABOUT 41 YEARS, DOOR.NO. 16, KABBINAHALLI VILLAGE, HARADANAHALLI POST, HOLENARASIPURA TALUK, HASSAN DISTRICT-573201. 3. CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED, - 5 - HC-KAR NC: 2025:KHC:26326 MFA No. 11131 of 2012 C/W MFA No. 11130 of 2012 MFA No. 1672 of 2013 AND 1 OTHER DARE HOUSE, 2ND FLOOR, N.S.C BOSE ROAD, CHENNAI- 600001 REP. BY ITS MANAGER ...RESPONDENTS (BY SRI. O.MAHESH, ADVOCATE FOR R3, V/O DATED 02.09.2016 NOTICE TO R1 & R2 HELD SUFFICIENT) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 26.09.2012 PASSED IN MVC NO.24/2011 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL AND THE SENIOR CIVIL JUDGE, NANJANGUDU. IN MFA.CROB NO. 24/2013 IN MFA NO.11130/2012 BETWEEN: 1. V.S. SHIVAN, S/O LATE SHIVARAMAN, AGE 51 YEARS, 2. SMT. LEELA W/O V.S.SHIVAN, AGE:49 YEARS, 3. SINDHU D/O V.S.SHIVAN, AGE:29 YEARS, ALL ARE R/AT CHANDRAVADI VILLAGE, HULLHALLI HOBLI, NANJANAGUDU TALUK, MYSORE DISTRICT-571301. ...CROSS OBJECTORS (BY SMT. B.N.MANJULA, ADVOCATE FOR SRI. R.C. NAGARAJ, ADVOCATE) - 6 - HC-KAR NC: 2025:KHC:26326 MFA No. 11131 of 2012 C/W MFA No. 11130 of 2012 MFA No. 1672 of 2013 AND 1 OTHER AND: 1. B.P.KUMAR, S/O PUTTASWAMAIAH, AGE 45 YEARS, DOOR.NO.133, HOLENARASIPURA, HASSAN DISTRICT-573201. 2. MANJUNATH, S/O LATE VIRABHADRASHETTY, 41 YEARS, DOOR.16, KABBINAHALLI VILLAGE, HARADANAHALLI POST, HOLENARASIPURA TALUK, HASSAN DISTRICT-573201. 3. CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED, DARE HOUSE, 2ND FLOOR, N.S.C. BOSE ROAD, CHENNAI-600001, REP. BY ITS MANAGER. ...RESPONDENTS (V/O DATED 18.10.2019, SRI. O.MAHESH, ADVOCATE FOR R3, V/O DATED 22.11.2024, NOTICE TO R1 IS DISPENSED WITH, V/O DATED 22.11.2024, NOTICE TO R2 IS HELD SUFFICIENT) THIS MFA.CROB IN MFA.NO.11130/2012 FILED U/O 41 RULE 22 OF CPC, R/W SEC. 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 26.09.2012 PASSED IN MVC NO.23/2011 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL AND THE SENIOR CIVIL JUDGE, NANJANGUDU. THESE MISCELLANEOUS FIRST APPEALS AND MFA CROB, HAVING BEEN HEARD AND RESERVED ON 19.06.2025 FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA - 7 - HC-KAR NC: 2025:KHC:26326 MFA No. 11131 of 2012 C/W MFA No. 11130 of 2012 MFA No. 1672 of 2013 AND 1 OTHER CAV COMMON JUDGMENT These appeals arise out of judgment and award dated 26.09.2012, passed by the Senior Civil Judge and M.A.C.T., Nanjangud, (for short `Tribunal'), in MVC No.23/2011 and MVC.No.24/2011. 2. MFA.No.11131/2012 is filed by the Insurance Company and MFA.No.1672/2013 is filed by the claimant in MVC.No.24/2011. Similarly, MFA.No.11130/2012 is filed by the Insurance Company and MFA.Crob. No.24/2013 is filed by the claimants in MVC.No.23/2011. All these appeals arise out of a common accident. Therefore, all the appeals are taken up together for disposal. 3. For the sake of convenience, the parties are referred to as per their ranking before the Tribunal. 4. Brief facts of the case are that, on 30.05.2010, deceased Santhosh i.e., son of claimant Nos.1 and 2 and - 8 - HC-KAR NC: 2025:KHC:26326 MFA No. 11131 of 2012 C/W MFA No. 11130 of 2012 MFA No. 1672 of 2013 AND 1 OTHER brother of claimant No.3 in MVC.No.23/2011 and one Rajesh (injured claimant in MVC.No.24/2011) along with three other persons were travelling along with goods in Tata ACE vehicle bearing registration No.KA-13-A-6240. The driver of the said vehicle was driving the vehicle in a rash and negligent manner on Mysuru-Manandawadi main road. At about 11.45 p.m., near Karegundi gate, the driver of the vehicle dashed against a tree situated at the left side of the road, as a result of which, the inmates of the said goods vehicle sustained grievous injuries and while undergoing treatment, Santhosh succumbed to the injuries on 07.06.2010 around 7.00 a.m. 5. The deceased Santhosh was aged about 30 years, he was unmarried and was doing agriculture and milk vending. He was earning Rs.10,000/- per month. From the said earnings, he was maintaining the family. With these reasons, claimants prayed to award the compensation of Rs.38 lakhs. - 9 - HC-KAR NC: 2025:KHC:26326 MFA No. 11131 of 2012 C/W MFA No. 11130 of 2012 MFA No. 1672 of 2013 AND 1 OTHER 6. It is the case of the claimant in MVC.No.24/2011 that, claimant was aged 26 years at the time of the accident; He was an agriculturist and earning Rs.10,000/- per month; Due to the injuries sustained in the accident, he has suffered permanent disability, which has affected his earning capacity. With these reasons, he prayed to award compensation of Rs.17,75,000/-. 7. The respondents have appeared before the Tribunal. The respondent Nos.1 and 2 have not filed their written statement. Respondent No.3-insurer filed its written statement denying the contentions of the claim petitioners. It is further stated that deceased and injured- claimant were travelling as gratuitous passengers in the goods vehicle, therefore, they are not entitled to claim compensation. Their liability is restricted to the terms and conditions of the policy of insurance. With these reasons, prayed to dismiss the claim petitions. - 10 - HC-KAR NC: 2025:KHC:26326 MFA No. 11131 of 2012 C/W MFA No. 11130 of 2012 MFA No. 1672 of 2013 AND 1 OTHER The objections of respondent No.3-insurer in both the cases are more or less similar. 8. From the rival contentions of the parties, the Tribunal framed necessary issues. 9. The Tribunal tried both the cases separately. Claimants in MVC.No.23/2011 examined one witness as PW-1 and marked 38 documents as per Exs.P-1 to P-38. The respondent No.3 examined one witness as RW-1 and marked Exs.R-1 to R-3. The claimant in MVC.No.24/2011 examined himself as PW-1 and marked 34 documents as per Exs.P-1 to P-34. Respondents have not led any evidence. 10. After hearing both parties and appreciating the pleadings and evidence on record, the Tribunal allowed both the claim petitions and awarded the compensation as per the impugned judgments. - 11 - HC-KAR NC: 2025:KHC:26326 MFA No. 11131 of 2012 C/W MFA No. 11130 of 2012 MFA No. 1672 of 2013 AND 1 OTHER 11. The Tribunal in the impugned judgments held that persons who were travelling in the said goods vehicle were owners of the goods, carried in the said vehicle and respondent-insurer is liable to indemnify the owner of the vehicle. The Tribunal also assessed the compensation under different heads. 12. Heard the arguments of the learned counsel appearing for the claimants as well as the insurer. 13. The learned counsel appearing for the claimants contend that the amount of compensation awarded on all the heads are inadequate. Hence, prayed to enhance the same. 14. The insurer contends that it was not liable to pay the compensation. Five persons in excess of the permitted limit were traveling in the said vehicle. Hence, insurer is not liable to pay the amount. The Tribunal dismissed the petition against respondent No.2 -insured and hence, insurer cannot be directed to pay the same since its - 12 - HC-KAR NC: 2025:KHC:26326 MFA No. 11131 of 2012 C/W MFA No. 11130 of 2012 MFA No. 1672 of 2013 AND 1 OTHER liability is only to indemnify the insured. Hence, prayed to allow the appeal and set aside the award passed against respondent No.3-insurer. 15. Following points arises for consideration: (i) Whether claimants are entitled to enhancement of compensation? (ii) Whether insurer is liable to pay the compensation due to violation of terms and conditions of the policy of insurance? (iii) What order? In MFA.No.11130/2012 and MFA.Crob. No.24/2013 : 16. MFA.No.11130/2012 and MFA.Crob.No.24/2013, arises out of MVC.No.23/2011, the Tribunal has awarded following amount of compensation : Particulars Amount in Rs. Loss of income 900/- Medical expenses 59,100/- Loss of dependency 4,59,000/- Funeral expenses 10,000/- Transportion 2,000/- Loss of love and affection 20,000/- Total 5,51,000/- - 13 - HC-KAR NC: 2025:KHC:26326 MFA No. 11131 of 2012 C/W MFA No. 11130 of 2012 MFA No. 1672 of 2013 AND 1 OTHER 17. The Tribunal has assessed the age of the deceased as 30 years, applied the multiplier of `17', assessed his notional income as Rs.4,500/- per month and deducted 50% of the income towards personal expenses and awarded the compensation. On re-appreciation of the materials placed on record, the amount of compensation awarded is on the lower side. Notional income assessed by the Tribunal is on the lower side. Following the chart prepared by the KSLSA, notional income of the deceased is taken as 5500/-. 18. The age of the deceased was 30 years. Following the law laid down in the case of National Insurance Co. Ltd., -vs- Pranay Sethi1, 40% of income of the deceased has to be added towards future prospects, since the deceased was self-employed. Undisputedly, multiplier 1 (2017) 16 SCC 680 - 14 - HC-KAR NC: 2025:KHC:26326 MFA No. 11131 of 2012 C/W MFA No. 11130 of 2012 MFA No. 1672 of 2013 AND 1 OTHER applicable in `17'. The deceased was unmarried and hence, 50% of income shall be deducted towards personal expenses. From above said figures, compensation under the head `loss of dependency' has to be recalculated. The compensation under the conventional heads are also recalculated as per the law laid down in the case of Pranay Sethi's case (supra) as well as in the case of Magma General Insurance Co. Limited -vs- Nanu Ram & Others2. 19. The medical expenses and other incidental expenses are to be awarded on actual basis. Accordingly, the claimants are entitled for following amount of compensation : Particulars Amount in Rs. Loss of dependency (Rs.5,500/- + 40% x 12 x 17/2) 7,85,400/- Medical and incidental expenses 70,000/- Loss of consortium 1,20,000/- 2 2018 ACJ 2782 - 15 - HC-KAR NC: 2025:KHC:26326 MFA No. 11131 of 2012 C/W MFA No. 11130 of 2012 MFA No. 1672 of 2013 AND 1 OTHER (Rs.40,000/- x 3) Funeral expenses 15,000/- Loss of estate 15,000/- Total 10,05,400/- Amount awarded by the Tribunal Enhancement - Rounded off - 5,51,000/- 4,54,400/- 4,55,000/- Thus, the claimants are entitled to enhancement of Rs.4,55,000/- with interest at the rate of 6% p.a. on the enhanced amount from the date of petition till its realization. In MFA.No.11131/2012 and MFA.No.1672/2013 : 20. MFA.No.11131/2012 and MFA.No.1672/2013, arises out of MVC.No.24/2011, the Tribunal has awarded following amount of compensation : Particulars Amount in Rs. Pain and suffering 40,000/- Loss of income 2,000/- - 16 - HC-KAR NC: 2025:KHC:26326 MFA No. 11131 of 2012 C/W MFA No. 11130 of 2012 MFA No. 1672 of 2013 AND 1 OTHER Medical expenses 52,000/- Food, special diet and conveyance charges 13,500/- Total 1,07,500/- 21. As mentioned in the impugned judgment, the claimant has sustained grievous injuries in the accident, but not mentioned the nature of injuries sustained by the claimant. The claimant has produced the wound certificate at Ex.P-5, which indicates that he sustained the following injuries : (i) Concussive head injury, (ii) lacerated wound over left elbow (iii) Degloving injury over right heel (iv) Posterior perineal tear He was admitted in the hospital on 31.05.2010 and discharged on 01.06.2010. The injuries are said to be grievous in nature. He produced 22 medical bills at Ex.P- 6. It appears, he again admitted as inpatient in the Government Medical College, Kozhikode, wherein he was admitted as an inpatient on 02.6.2010 and discharged on - 17 - HC-KAR NC: 2025:KHC:26326 MFA No. 11131 of 2012 C/W MFA No. 11130 of 2012 MFA No. 1672 of 2013 AND 1 OTHER 18.06.2010. It is mentioned therein that he was referred from Apollo BGS Hospitals, Mysuru. It appears, he underwent CT scan of brain, which indicates that claimant has suffered fracture involving right zygomatic arch, anterior and posterior walls of right maxillary sinus and right lateral pterygoid plate and mild cerebral oedema. He was treated in the Neuro-surgery department, ENT and Ophthalmology consultation. Conservative treatment was given to him and at the time of discharge, certain medications were given to him. These facts are mentioned in Ex.P-29. The discharge summary given by Apollo BGS Hospitals is at Ex.P-28. He was admitted in the said hospital on 31.05.2010, he underwent surgery and discharged from the hospital on 01.06.2010. The treatment given in the said Apollo BGS Hospitals are mentioned in detail in the discharge summary produced at Ex.P-28. The X-rays are also produced along with Ex.P-28. - 18 - HC-KAR NC: 2025:KHC:26326 MFA No. 11131 of 2012 C/W MFA No. 11130 of 2012 MFA No. 1672 of 2013 AND 1 OTHER These documents shows that the claimant had suffered severe head injuries and other facial bone fractures, because of which, he was treated from 31.05.2010 to 18.06.2010 and took the follow-up treatment. 22. It is true that he had not examined the Medical Officer to prove his disability. Therefore, the Tribunal rightly denied the compensation under the head `loss of future earning capacity due to disability', since it is not proved. 23. From the medical records, it is seen that the claimant had taken treatment in Multi-Speciality hospitals. In Para-18 of the impugned judgment, the total amount of medical bills is mentioned as Rs.52,000/- by the Tribunal. He had taken treatment in different hospitals and at different places. Therefore, he must have spent substantial amount towards conveyance charges etc., Due to the said injuries, he must have lost some of his - 19 - HC-KAR NC: 2025:KHC:26326 MFA No. 11131 of 2012 C/W MFA No. 11130 of 2012 MFA No. 1672 of 2013 AND 1 OTHER immunities, which he could not prove due to non- examination of the Medical Officer. However, considering the nature of injuries, just and reasonable amount of compensation needs to be awarded. 24. The claimant was unable to prove his income. Following the chart of notional income prepared by the Karnataka State Legal Services Authority, the notional income of the claimant is assessed as Rs.5,500/- per month. At least, for a period of two to three months, he was not able to attend to his work and lost his earnings. 25. For the aforesaid discussion, following amount of compensation is awarded : Particulars Amount in Rs. Pain and suffering 50,000/- Loss of income during the laid up period (Rs.5,500/- x 4) 22,000/- Medical expenses 52,000/- Food, special diet, attendant and conveyance charges 30,000/- - 20 - HC-KAR NC: 2025:KHC:26326 MFA No. 11131 of 2012 C/W MFA No. 11130 of 2012 MFA No. 1672 of 2013 AND 1 OTHER Loss of amenities and future unhappiness 50,000/- Total 2,04,000/- Amount awarded by the Tribunal - Enhancement - Rounded off - 1,07,500/- 96,500/- 97,000/- For the aforesaid discussion, point No.1 in both the appeals filed by the claimants is answered partly in the affirmative. 26. The second important point is whether insurer is liable to indemnify the owner of the vehicle. Undisputedly, the claimant in MVC.No.24/2011, as well as deceased Santhosh were travelling in a goods auto (Tata Ace) bearing registration No.KA-13-A-6240. They contend that the deceased was the owner of the goods which were carried in the said vehicle. Consistently, the claimants in both the claim petitions have deposed before the Court that deceased Santhosh and Rajesh were - 21 - HC-KAR NC: 2025:KHC:26326 MFA No. 11131 of 2012 C/W MFA No. 11130 of 2012 MFA No. 1672 of 2013 AND 1 OTHER traveling along with goods in the offended vehicle. The Tribunal in the impugned judgment in MVC.No.23/2011, accepted that said deceased Santhosh was transporting agricultural articles in the said goods vehicle. This fact was seriously disputed by the insurer. 27. According to the contentions of the insurer, there were five persons travelling in the said goods vehicle. This fact is not in dispute. Out of them, one was the driver, another was cleaner and remaining three are said to be owner of the goods. Ex.P-2 which was filed on 31.05.2010 before the jurisdictional police shows that the deceased Santhosh was transporting the agricultural implements in the said goods vehicle. After the death of Santhosh, the concerned Station House Officer submitted a report to the Court intimating the death of Santhosh. Ex.P-4 is the complaint given by one Thomas, who had witnessed the incident. He stated about the rash and negligent driving of the auto by its driver. Ex.P-6 inquest mahazar also - 22 - HC-KAR NC: 2025:KHC:26326 MFA No. 11131 of 2012 C/W MFA No. 11130 of 2012 MFA No. 1672 of 2013 AND 1 OTHER reveals that deceased Santhosh was transporting the agricultural implements in the said goods tempo. 28. The submission of learned counsel for the insurer is that in Ex.P-8, none of the agricultural implements were said to be found in the carrier of the said goods tempo. It is true that in Ex.P-8 none of the said fact is mentioned. The Tribunal in the impugned judgment observed that some of the photographs were produced, which were not marked and the same reveals that agricultural implements were loaded in the said goods vehicle. 29. The respondent No.3 examined one witness as RW-1 in MVC.No.23/2011. He was an Officer of respondent No.3. He has stated about not holding of driving licence by the driver of the offending vehicle and also stated that the claimants were travelling as gratuitous passengers in the said vehicle. The respondent-insurer had not examined the concerned Investigating Officer to show that deceased was gratuitous - 23 - HC-KAR NC: 2025:KHC:26326 MFA No. 11131 of 2012 C/W MFA No. 11130 of 2012 MFA No. 1672 of 2013 AND 1 OTHER passenger in the goods vehicle and deceased was not transporting goods in the vehicle. Therefore, it can be safely concluded that deceased Santhosh was the owner of the goods which were transported in the offending vehicle. 30. Undisputedly, there were totally five persons travelling in the said vehicle. In the prosecution papers, it is not stated that, excluding driver and cleaner, other two persons were also the owners of the goods travelling in the said vehicle. Moreover, it is difficult to believe that a small goods auto would be able to carry so much of luggage. Therefore, the other two persons traveling with deceased cannot be considered as the owners of the goods, but, they shall be considered as gratuitous passengers. 31. The respondent-insurer has produced the copy of Registration Certificate of the offending vehicle. It shows that unladen weight of the said vehicle was 805 KG. Ex.R-2 is the driving licence of driver of the offending - 24 - HC-KAR NC: 2025:KHC:26326 MFA No. 11131 of 2012 C/W MFA No. 11130 of 2012 MFA No. 1672 of 2013 AND 1 OTHER vehicle. He had the licence to drive light motor non- transport vehicle, which was in force from 16.04.2005 to 01.03.2024. At the time of accident, he was driving transport vehicle. 32. The learned counsel for the insurer submits that driver of the offending vehicle was driving a transport vehicle without licence and hence, insurer is not liable to indemnify owner of the vehicle. The said submission is not tenable. The Hon'ble Apex Court in the case of Mukund Dewangan -vs- Oriental Insurance Company Limited,3, as well as Bajaj Alliance General Insurance Company Limited -vs- Rambha Devi4, held that a driver authorized to drive non-transport vehicle, can drive transport vehicle of the said class and in such cases, insurer is liable to pay compensation. The law laid down in the said case is applicable to facts of the present case and respondents are liable to pay compensation. 3 (2017) 14 SCC 663 4 (2025) 3 SCC 95 - 25 - HC-KAR NC: 2025:KHC:26326 MFA No. 11131 of 2012 C/W MFA No. 11130 of 2012 MFA No. 1672 of 2013 AND 1 OTHER The policy of insurance has been produced at Ex.R-3, which indicates that it was a package policy. According to it, the total seating capacity, including the driver, is two. 33. Learned counsel for the claimant vehemently contends that as per Rule 100 of Karnataka Motor Vehicles Rules, 1989 (for short, `KMV Rules'), in a goods vehicle, 5+1 persons can be carried and it is permissible under the said provision of law. 34. Rule 100 (1) of the KMV Rules reads as under : " 100. Carriage of persons in goods vehicle.- (1) Subject to the provisions of this rule, no person shall be carried in a goods vehicle : Provided that the owner or the hirer or a bona fide employee of the owner or the hirer of the vehicle carried free of charge or a police officer in uniform traveling on duty may be carried in a goods vehicle, the total number of persons so carried,- (i) in light transport goods vehicle having registered laden weight less than 990 Kgs. not more than one; - 26 - HC-KAR NC: 2025:KHC:26326 MFA No. 11131 of 2012 C/W MFA No. 11130 of 2012 MFA No. 1672 of 2013 AND 1 OTHER (ii) in any other light transport goods vehicle not more than three; and (iii) in any goods vehicle not more than seven: Provided that the provisions of sub-clauses (ii) and (iii) of the above proviso shall not be applicable to the vehicles plying on inter-State routes or the vehicles carrying goods from one city to another city." As mentioned above, as per Ex.R-1, the unladen weight of the vehicle was 805 Kg. Therefore, sub-rule (1) of Rule 100 of KMV Rules is applicable to the facts of the case. According to it, one person either owner of the goods or a hirer or a bona-fide employee of the owner may travel in the goods vehicle along with goods. 35. The learned counsel for the insurer vehemently contends that since it was a goods vehicle and it is not established by the claimants that persons who were traveling in the said vehicle were not owners of the goods, therefore, the insurance company is not liable to pay the compensation. The said contention is not acceptable in - 27 - HC-KAR NC: 2025:KHC:26326 MFA No. 11131 of 2012 C/W MFA No. 11130 of 2012 MFA No. 1672 of 2013 AND 1 OTHER respect of MVC.No.23/2011 for two reasons : one is, it was proved by the claimants of the said case that deceased Santhosh was the owner of the goods, which were transported in the said goods vehicle and according to Rule 100 of KMV Rules, which is referred supra, one person i.e., owner of the goods can be carried in the goods vehicle. 36. Section 147(1)(b)(i) of Motor Vehicles Act, 1988 (for short, `MV Act'), as amended, reads as under : "147. Requirement of policies and limits of liability. - (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which- (a) xxx xxx xxx (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) - (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person including owner of the goods or his authorized representative carried in the motor vehicle or damage to any property of a third party - 28 - HC-KAR NC: 2025:KHC:26326 MFA No. 11131 of 2012 C/W MFA No. 11130 of 2012 MFA No. 1672 of 2013 AND 1 OTHER caused by or arising out of the use of the motor vehicle in a public place;" Therefore, as per Section 147 of MV Act, the owner of the goods or his authorized representative's liability is also covered under the policy of insurance. 37. In view of the above discussions, risk of owner of the goods is covered under the policy of insurance and premium has been collected by the insurer since it was a package policy. Moreover, the policy itself reveals that the total capacity of the goods vehicle is 1+1. 38. In the case of claimant in MVC.No.24/2011, he has not been able to prove that he was the owner of the goods, traveling in the goods vehicle. Therefore, he was a gratuitous passenger traveling in a goods vehicle. His risk is not covered under the policy of insurance. - 29 - HC-KAR NC: 2025:KHC:26326 MFA No. 11131 of 2012 C/W MFA No. 11130 of 2012 MFA No. 1672 of 2013 AND 1 OTHER 39. In the case of National Insurance C. Ltd., -vs- Bommithi Subbhayamma and others,5 the Hon'ble Apex Court held that the insurance company is not liable to pay compensation for death or bodily injury of a gratuitous passenger travelling in a goods vehicle. In the said judgment, the Hon'ble Apex Court considered the judgments in the case of New India Assurance Co. Ltd., - vs- Asha Rani,6 and in the case of New India Assurance Co. -vs- Satpal Singh, 7. Since it is a breach of fundamental condition, the insurance company cannot be directed to pay the compensation and recover it from the owner of the vehicle. 5 (2005) 12 SCC 243 6 (2003) 2 SCC 223 7 (2000) 1 SCC 237 - 30 - HC-KAR NC: 2025:KHC:26326 MFA No. 11131 of 2012 C/W MFA No. 11130 of 2012 MFA No. 1672 of 2013 AND 1 OTHER 40. The Hon'ble Apex Court in the case of Oriental Insurance C. Ltd., -vs- Brij Mohan and others,8 it is held as under : "that the intention of the Parliament was that the words "any person" occurring in Section 147 will not cover all persons, who are traveling in a goods carriage in any capacity whatsoever. By taking note of the various Judgments of the Hon'ble Supreme Court and this Court and finally held that the direction given by the Tribunal to the Insurance Company to pay the compensation and to recover the same from the owner of the vehicle, is not correct. The Court also observed that even though in many cases, the claimants may not be able to realize the award amount from the owner of the vehicle involved in the accident, the said factual position alone cannot impel the Court to do something against the provisions of the Statute and the decisions of the Larger Benches of the Hon'ble Supreme Court." 41. In view of the consistent law laid down by the Hon'ble Apex Court in the aforesaid judgments, as well as 8 (2007) 7 SCC 56 - 31 - HC-KAR NC: 2025:KHC:26326 MFA No. 11131 of 2012 C/W MFA No. 11130 of 2012 MFA No. 1672 of 2013 AND 1 OTHER in the case of Brij Mohan (supra), this Court cannot direct the insurer to pay the compensation and recover it from the owner of the vehicle since it amounts to violation of fundamental conditions of the policy, against the provisions of law, as well as violation of permit conditions. Therefore, in MVC.No.24/2011, the insurer is not liable to pay the compensation, on the contrary, the owner is liable to pay the same. 42. For the aforesaid reasons, point No.2 is answered in favour of the claimants in MVC.No.23/2011 and against the claimant in MVC.No.24/2011. For the aforesaid reasons, I proceed to pass the following: ORDER i) MFA.No.11131/2012, MFA.No. 11130/2012, MFA.No.1672/2013 and MFA.Crob.No.24/2013, are disposed of. ii) The judgment and award passed by the Senior Civil Judge and M.A.C.T., Nanjangud, - 32 - HC-KAR NC: 2025:KHC:26326 MFA No. 11131 of 2012 C/W MFA No. 11130 of 2012 MFA No. 1672 of 2013 AND 1 OTHER in MVC No.23/2011 and MVC.No.24/2011, both dated 26th September 2012, stand modified. iii) The claimants in MVC.No.23/2011 are entitled to enhanced compensation of Rs.4,55,000/-, with interest at the rate of 6% p.a. on the enhanced amount, from the date of petition till its realization and the insurance company shall deposit the amount within a period of six weeks from the date of award. iv) The claimant in MVC.No.24/2011 is entitled to enhanced compensation of Rs.97,000/-, with interest at the rate of 6% p.a. on the enhanced amount, from the date of petition till its realization and respondent No.2 - Manjunatha, son of late Veerabhadrashetty, owner of the vehicle shall pay the entire amount of compensation within a period of six weeks from the date of the award. v) The remaining portion of the award with respect to apportionment, deposit and release of the amount, in both the claim petitions, are as ordered by the Tribunal. - 33 - HC-KAR NC: 2025:KHC:26326 MFA No. 11131 of 2012 C/W MFA No. 11130 of 2012 MFA No. 1672 of 2013 AND 1 OTHER vi) Whatever amount deposited by the insurer in MFA.No.11130/2012 shall be transmitted to the Tribunal for disbursement and amount deposited in MFA.No.11131/2012 shall be refunded to the insurer on due acknowledgement. vii) Draw award accordingly. Registry is directed to send back the records along with a copy of this judgment to the concerned Tribunal. SD/- (UMESH M ADIGA) JUDGE BK List No.: 1 Sl No.: 38