- 1 - NC: 2025:KHC-D:2978 MFA No. 23837 of 2012 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 13TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.23837 OF 2012 (MV-I) BETWEEN: THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, “SITA SMRUTI”, II FLOOR, MARUTI GALLI, BELAGAVI. …APPELLANT (BY SRI C.V. ANGADI, ADVOCATE) AND: 1. SMT. SUSHILA W/O. BASAVANTAPPA GAMALI, AGE ABOUT 56 YEARS, OCC: COOLIE (NOW NIL), R/O: KEB ROAD, ANKALAGI, TQ: GOKAK, DIST: BELAGAVI. 2. MR. DADASAB S/O. KHANSAB LAKKUNDI, AGE: MAJOR, OCC: BUSINESS, R/O: VANNUR, TQ: BAILHONGAL, DIST: BELAGAVI. (OWNER OF MOTORCYCLE BEARING NO.KA-48/E-3677) …RESPONDENTS (BY SRI VITTAL S.TELI, ADVOCATE FOR R1; NOTICE TO R2 IS SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, 1988, PRAYING TO MODIFY THE IMPUGNED JUDGMENT AND AWARD DATED 13-06-2012 PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT-III AND MEMBER, ADDL. MACT, BELAGAVI IN MVC.NO.1558/2011 AND PASS SUCH OTHER SUITABLE ORDER/S, AS THIS COURT DEEMS FIT AND APPROPRIATE IN THE CIRCUMSTANCES AND FACTS OF THE CASE INCLUDING COSTS IN THE INTEREST OF EQUITY AND JUSTICE. 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:2978 MFA No. 23837 of 2012 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) The appeal is filed by the appellant/Insurance Company challenging the judgment and award dated 13.06.2012 passed in MVC No.1558/2011 by the Presiding Officer, Fast Track Court–III and Member, Additional MACT, Belagavi (hereinafter referred to as ‘the Tribunal’ for short) questioning the liability fastened on both the owner and Insurance Company are jointly and severally liable to pay compensation and also order for pay and recovery. 2. For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Tribunal. 3. The factum of accident and injuries sustained by the claimant are not in dispute. The dispute is with regard to questioning the liability fastened on Insurance Company to pay compensation. 4. Upon the injuries sustained in the road traffic accident, the Tribunal has awarded compensation of - 3 - NC: 2025:KHC-D:2978 MFA No. 23837 of 2012 Rs.1,17,000/- along with interest at the rate of 8% p.a. from the date of petition till its realization though it is proved that the driver of the offending vehicle was not having driving licence as on the date of accident and held that both the owner and insurance company are jointly and severally liable to pay the compensation in view of no driving licence directed the insurance company to pay compensation at first instance and then recover it from the owner of the offending vehicle. 5. The Tribunal has taken contra view by holding that the driver of the offending vehicle was not holding driving licence, but at the same time held that both the owner and insurer are jointly and severally liable to pay compensation. Also, it is ordered for pay and recovery. Therefore, the judgment and award passed by the Tribunal is liable to be modified. 6. The Tribunal is correct in holding that the rider was not holding driving licence to ride the motorcycle, as per the charge sheet/Ex.P-6, offence was fastened against the - 4 - NC: 2025:KHC-D:2978 MFA No. 23837 of 2012 rider of the motorcycle bearing Reg.No.KA-48/E-3677 under Section 181 r/w Section 3 of the Motor Vehicles Act, 1988. This proves the fact that the rider of the motorcycle was not holding driving licence to ride the motorcycle, to this extent the Tribunal is correct, but the Tribunal has committed an error that the owner and Insurance Company are jointly and severally liable to pay compensation, this is modified because when there is violation of conditions of insurance policy is proved and the insurance company is liable to be exonerated then the owner of the offending vehicle shall alone pay the compensation. Therefore, an order of pay and recovery is made. Regarding Pay and recovery 7. In the present case, the Tribunal has observed that the rider of the motorcycle had not possessed driving licence at the time of the accident but committed an error fastening the liability both on owner and insurer of the offending vehicle. However, as per Sub-section (2) of Section 149 of the MV Act, when the Insurance Company established the fact that the rider was not holding driving licence, then - 5 - NC: 2025:KHC-D:2978 MFA No. 23837 of 2012 as per Sub-sections (1), (4), (7) of Section 149 of the Act, the Insurance Company as if the judgment debtor shall satisfy the claim in respect of third parties and then recover the same from the owner of the motorcycle. Accordingly, the order of pay and recovery is made 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 ANOTHER1; NATIONAL INSURANCE COMPANY LIMITED VS. SWARAN SINGH AND OTHERS2 and also as per the full bench decision of this Court in the case of NEW INDIA ASSURANCE COMPANY LIMITED VS. YELLAVVA AND ANOTHER3. Accordingly, an order of pay and recovery is made. To this extent, the judgment and award passed by the Tribunal is modified. 8. Just because an order of pay and recovery made that does not mean that the insurance company is jointly and liable to pay compensation along with the owner of vehicle. As discussed above, the benefit of pay and recovery 1 (2018) 3 SCC 208 2 (2004) 3 SCC 297 3 2020 ACJ 2560 - 6 - NC: 2025:KHC-D:2978 MFA No. 23837 of 2012 is to the third party. Since, the claimant/respondent No.1 in this case is a third party to the motorcycle. Therefore, by exonerating the Insurance Company, it is directed the Insurance Company to pay compensation at first instance then recover it from the owner of the motorcycle. Therefore, the appeal is liable to be allowed in part. 9. Hence, I proceed to pass the following: ORDER i. The appeal is allowed in part. ii. The judgment and award dated 13.06.2012 passed in MVC No.1558/2011 by the Presiding Officer, Fast Track Court–III and Member, Additional MACT, Belagavi, stands modified. iii. The appellant/Insurance Company shall pay the compensation amount to the claimant at the first instance and then recover the same from the owner of the motorcycle bearing Reg.No.KA-48/E-3677. iv. No order as to costs. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE SRA, List No.: 1 Sl No.: 67