- 1 - HC-KAR NC: 2025:KHC:30525-DB MFA No. 3920 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF AUGUST, 2025 PRESENT THE HON'BLE MR. JUSTICE D K SINGH AND THE HON'BLE MR. JUSTICE VENKATESH NAIK T MISCELLANEOUS FIRST APPEAL NO.3920 OF 2022 (MV-D) BETWEEN: 1. SHANTHAKUMARI K.T. W/O. LATE ANNAPPASWAMY K.R. AGED ABOUT 42 YEARS. 2. ISHWARYA A. D/O. LATE ANNAPPASWAMY K.R. AGED ABOUT 20 YEARS BOTH ARE RESIDING AT SHANTHI NIVASA, III CROSS VALMIKI NAGAR, TUMKUR TOWN TUMKUR. …APPELLANTS (BY SRI NAGESH S., ADVOCATE) AND: 1. WASSIM PASHA S/O. RIYAZ PASHA AGED ABOUT 52 YEARS RESIDENT OF IDRIES SAB MOHALLA NEAR CLOCK TOWER KOLAR - 563 101. 2. ICICI LOMBARD GENERAL INSURANCE COMPANY LTD., REGD. OFFICE AT ICICI BANK TOWER BANDRA-KURLA COMPLEX MUMBAI - 400 054 SERVICE ADDRESS: M.G. ROAD TUMKUR Digitally signed by MOUNESHWARAPPA NAGARATHNA Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:30525-DB MFA No. 3920 of 2022 BY MANAGER. 3. C. MALLIKA W/O. P. CHANDRASEKARAN ILLAM NO.14/4, ANNAI SATHYA NAGAR 2ND STREET, PALAYA PALAYAM ERODE TAMIL NADU. 4. ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD., NO.8/H-1, MANGALAM BUILDING, 4 ROADS SALEM - 636 009 BY MANAGER. …RESPONDENTS (BY SRI B.C. SHIVANNE GOWDA, ADVOCATE FOR R-2; SRI RAVI S. SAMPRATHI, ADVOCATE FOR R-4; R-1 AND R-3 ARE SERVED AND UNREPRESENTED) * * * THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 9-11-2015 PASSED IN MVC NO.580 OF 2011 ON THE FILE OF THE VI ADDITIONAL DISTRICT JUDGE AND AMACT, TUMAKURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE D K SINGH and HON'BLE MR. JUSTICE VENKATESH NAIK T - 3 - HC-KAR NC: 2025:KHC:30525-DB MFA No. 3920 of 2022 ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE VENKATESH NAIK T) This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short) has been filed by the claimants being aggrieved by the judgment dated 09.11.2015 passed in MVC No.580/2011 and MVC No.618/2012 by the Motor Accident Claims Tribunal, Tumkur. 2. Facts giving rise to the filing of the appeal briefly stated are that on 05.05.2011 at about 4.15 p.m., deceased Annappaswamy and A.Jayaprakash were travelling in a lorry bearing Reg.No.KA-40-2004 from Kolar to Tumkur on NH-207 near Koogonahalli gate, which was driven in a rash and negligent manner and dashed against the backside of another lorry bearing Reg.No.TN-33-AQ-4566, which was parked on the middle of the road in a dangerous manner. As a result of the said accident, the deceased sustained grievous injuries and succumbed to the injuries. 3. The claimants are wife and daughter of deceased - 4 - HC-KAR NC: 2025:KHC:30525-DB MFA No. 3920 of 2022 Annappaswamy, who had filed a claim petition before the Tribunal under Section 166 of the Act seeking compensation for the death of the deceased along with interest. The Tribunal considering the material available on record allowed the claim petition in part and granted compensation of Rs.28,32,361/- with an interest at 6% per annum. from the date of petition till realisation and directed respondent No.1 Wassim Pasha(owner of the lorry bearing registration No.KA-40-2004) to pay the entire compensation with interest thereupon. Being aggrieved by the impugned judgment and award, the claimants have filed this appeal. 4. Sri. S. Nagesh, learned counsel for the claimants contended that the Tribunal ought to have directed second respondent-Insurance company to pay the entire compensation, as the Coordinate Bench of this Court has saddled entire responsibility on the Insurance company, on account of death of one A. Jayaprakash, who had died in the same accident on the ground of pay and recovery method. Thus, the counsel seeks modification of the award, insofar as liability is concerned. - 5 - HC-KAR NC: 2025:KHC:30525-DB MFA No. 3920 of 2022 5. The counsel further contended that the Tribunal has not granted fair and reasonable compensation under the conventional heads. Thus, prayed to allow the appeal. 6. Sri. B.C. Shivannegowda, learned counsel for respondent No.2 Insurance company(Insurer of Lorry bearing registration No.KA 40-2004) and Sri. Ravi S. Samprathi, learned counsel for respondent No.4 (Insurer of Lorry bearing registration No.TN 33-AQ-4566), vehemently, contended that the Tribunal considering the oral and documentary evidence on record has rightly granted just compensation and saddled entire liability on owner of lorry bearing registration No.KA 40- 2004. Hence, they prayed to dismiss the appeal. 7. We have perused the impugned judgment, award, appeal memo, contentions of both counsels and the judgment of Coordinate Bench in MFA No.1698/2016 disposed of on 01.03.2021 in Uma Jayaprakash and Others v. Waseem Pasha and Others. The points that would arise for our - 6 - HC-KAR NC: 2025:KHC:30525-DB MFA No. 3920 of 2022 consideration are:- 1. Whether the Tribunal has granted fair and reasonable compensation to the claimants? 2. Whether the Tribunal is right in saddling liability on the owner of lorry bearing No.KA-40-2004, if not, the principle of pay and recovery could be applied, in view of judgment passed by the Coordinate Bench in MFA No.1698/2016? 8. In the instant case, it is the contention of claimants that on the date of the fatal accident, deceased Annaappaswamy and A. Jayaprakash were travelling in lorry bearing Reg.No.KA-40-2004 from Kolar to Tumkur on NH-207, near Kooganahalli village gate, at that time, the driver of the lorry drove the same in a rash and negligent manner and dashed against backside of another lorry bearing registration No.TN-33-AQ-4566, which was parked on the middle of the road in a dangerous manner, thus, deceased Annapppaswamy sustained severe injuries and died on account of the injuries. - 7 - HC-KAR NC: 2025:KHC:30525-DB MFA No. 3920 of 2022 9. We have considered the submissions made by learned counsel for the parties and have perused the records. The Supreme Court in ‘MANGLA RAM vs. ORIENTAL INSURANCE COMPANY LIMITED AND OTHERS’ reported in (2018) 5 SCC 656 has held that the proceeding under the Act has to be decided on the basis of preponderance of probabilities and claimant is not required to prove the accident beyond reasonable doubt. The Court reiterated the principles laid down in DULCINA FERNANDES AND OTHERS vs. JOAQUIM XAVIER CRUZ AND ANOTHER reported in (2013) 10 SCC 646 and held that the approach of the Tribunal should be holistic of the entire pleading and evidence by applying the test of preponderance of probabilities. It was held that it was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The Court restated that the settled principle is that the evidence of the claimants ought to be examined on the touchstone of preponderance of probabilities and certainly the standard of proof beyond reasonable doubt could not have been applied. - 8 - HC-KAR NC: 2025:KHC:30525-DB MFA No. 3920 of 2022 10. Admittedly, PW-1 is not an eye-witness to the accident. PW-2 Puttegowda who was an inmate of lorry bearing Reg.No.KA-40-2004 and an eye-witness to the accident has stated that the accident occurred on account of negligence of both the drivers of the lorry bearing Reg.No.KA-40-2004 inasmuch as the same was driven negligently in a high speed, as well as the driver of the lorry bearing Reg.No.TN-33-AQ-4566 had parked the lorry in the middle of the road without any signal or indication. Nothing contrary has been elicited from the cross-examination of the aforesaid eye-witness. Ex.P1-complaint and Ex.P2-FIR discloses that the accident occurred on account of negligence of the driver of the lorry bearing Reg.No.KA-40-2004 and that the lorry bearing Reg.No.TN-33-AQ-4566 was parked in the side of the road. Ex.P3 Spot Mahazar and Ex.P4 Spot Sketch indicates that the lorry bearing Reg.No.TN-33-AQ-4566 was parked on the extreme left side of the road and that the road is 24 feet wide road. Ex.P7 IMV report indicates that the lorry bearing Reg.No.KA-40-2004 has suffered damage to the front portion - 9 - HC-KAR NC: 2025:KHC:30525-DB MFA No. 3920 of 2022 whereas lorry bearing Reg.No.TN-33-AQ-4566 has suffered damage to the hind portion. Therefore, the Tribunal has rightly held that the accident occurred on account of rash and negligent driving of lorry bearing Reg.No.KA-40-2004 on the basis of preponderance of probabilities and on the basis of the evidence on record. 11. It is well settled law that the insurer is liable to pay the third party and recover the same from the insured even if there is breach of any condition recognized under Section 149(2), even if it is a fundamental breach (that is breach of condition which is the cause for the accident) and the insurer proves that the said breach is in view of the mandate under Section 149(1) of the Act. [See: 'NATIONAL INSURANCE CO. LTD. VS. LAXMI NARAIN DHUT' reported in (2007) 3 SCC 700, 'ORIENTAL INSURANCE CO.LTD. VS. BRIJ MOHAN AND OTHERS' reported in (2007) 7 SCC 56 AND 'SHAMANNA AND OTHER VS. DIVISIONAL MANAGER, 'ORIENTAL INSURANCE CO. LTD AND OTHERS.' reported in (2018) 9 SCC 650 and full bench decision of this Court in - 10 - HC-KAR NC: 2025:KHC:30525-DB MFA No. 3920 of 2022 NEW INDIA ASSURANCE CO. LTD. VS. YALLAVA AND ANR. reported in ILR 2020 KAR 2239. In the instant case, the Tribunal has exonerated the insurer of the lorry bearing Reg.No.KA-40-2004 on the ground that the deceased were gratuitous passengers and that the insurer is not liable to pay the amount of compensation in view of the breach of policy conditions by the insured. The aforesaid finding with regard to fastening of liability on the owner of lorry bearing Reg.No.KA-40-2004 is not sustainable in view of the decision of full bench of this Court in the case of NEW INDIA ASSURANCE referred supra. Therefore, respondent No.2 being the valid insurer of the lorry bearing Reg.No.KA-40- 2004, is directed to pay the amount of compensation to the claimants at the first instance and to recover the same from the insured. 12. The Coordinate Bench in MFA No.1698/2016 disposed of on 01.03.2021 arising out of same accident has opined that respondent No.2 being valid insurer of lorry bearing registration KA -40- 2004 is directed to pay the compensation amount to - 11 - HC-KAR NC: 2025:KHC:30525-DB MFA No. 3920 of 2022 the claimants under principle of pay and recovery. Therefore, we have to apply similar principles to the instant case also. 13. Hence, we proceed to pass the following:- ORDER 1. The appeal is allowed-in-part. 2. Respondent No.2-Insurance company is directed to pay the entire compensation amount to the claimants at first instance and recover from the insured. 3. The aforesaid award is modified against the compensation as awarded by the Tribunal. 4. Accordingly, the appeal is disposed of. 5. However, it is made clear that no interest is paid by the Insurance company for the delayed period of 1583 days. 6. Pending IAs, if any, stand disposed of. - 12 - HC-KAR NC: 2025:KHC:30525-DB MFA No. 3920 of 2022 7. Registry is directed to send back the Tribunal records along with copy of this judgment. Sd/- (D K SINGH) JUDGE Sd/- (VENKATESH NAIK T) JUDGE MN List No.: 1 Sl No.: 20