- 1 - HC-KAR NC: 2025:KHC-D:13043 MFA No. 101177 of 2015 C/W MFA No. 101535 of 2015 IN THE HIGH COURT OF KARNATAKA AT DHARWAD DATED THIS THE 24TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI MISCELLANEOUS FIRST APPEAL NO. 101177 OF 2015 (MV-D) C/W MISCELLANEOUS FIRST APPEAL NO. 101535 OF 2015 (MV-D) IN MFA No. 101177/2015 BETWEEN: 1. SMT. SHARAWWA W/O. MALLIKARJUN KADAKOL, AGE. 42 YEARS, OCC. HOUSE WIFE, R/O. ASHRAYA COLONY, BAILHONGAL, TQ. BAILHONGAL, DISTRICT BELAGAVI. 2. KUMAR AJAY S/O. MALLIKARJUN KADAKOL AGE. 15 YEARS, OCC. STUDENT R/O. ASHRAYA COLONY, BAILHONGAL TQ. BAILHONGAL, DIST. BELAGAVI. SINCE APPELLANT NO.2 IS MINOR R/B NATURAL MOTHER APPELLANT-1, SMT. SHARAWWA W/O. MALLIKARJUN KADAKOL, AGE. 42 YEARS, OCC. HOUSE WIFE R/O. ASHRAYA COLONY, BAILHONGAL …APPELLANTS (BY SRI. HANAMANT R LATUR., ADV) AND: 1. SHRI. SHANTAPPA K. KALI AGE. 53 YEARS, OCC. BUSINESS R/O. VIJAY NAGAR, NEAR APMC YARD, HAVERI, TQ. & DIST. HAVERI. 2. THE MANAGER NATIONAL INSURANCE CO., LTD., 1ST FLOOR, KRISHNA AGENCY BUILDING, P.B. ROAD, HAVERI, MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.09.27 11:23:30 +0530 - 2 - HC-KAR NC: 2025:KHC-D:13043 MFA No. 101177 of 2015 C/W MFA No. 101535 of 2015 DISTRICT HAVERI. 3. KUMAR PANCHAPPA S/O. MALLIKARJUN KADAKOL, AGE. 24 YEARS, OCC.STUDENT, R/O. MUNAVALLI, TQ. SAUNDATTI, DIST. BELAGAVI. 4. SMT. BASAMMA W/O. GANGAPPA HOSUR AGE. 23 YEARS, OCC. HOUSE WIFE R/O. MUTAWAD, TQ. SAUNDATTI, DIST. BELAGAVI. 5. SMT. BASAWWA W/O. MUGEPPA @ GURUPADAPPA KADAKOL, AGE. 73 YEARS, OCC.NIL, R/O. MUNAVALLI, TQ. SAUNDATTI, DIST. BELAGAVI. …RESPONDENTS (BY SRI. M B MADANALLI, ADV FOR R1, SRI. S.K. KAYAKAMATH, ADV FOR R2 NOTICE TO R3 TO R5 ARE DISPENSED WITH) THIS MFA IS FILED U/S.173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT & AWARD DATED:04.02.2015, PASSED IN MVC. NO.574/2012, ON THE FILE OF THE SENIOR CIVIL JUDGE AND MEMBER, ADDL. MACT, BAILHONGAL, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION & SEEKING ENHANCEMENT OF COMPENSATION. IN MFA NO. 101535/2015 BETWEEN: 1. THE MANAGER, NATIONAL INSURANCE CO. LTD., 1ST FLOOR, KRISHNA AGENCY BUILDING, P.B. ROAD, HAVERI-581110. NOW REP BY ITS DEPUTY MANAGER, NATIONAL INSURANCE CO.LTD., REGIONAL OFFICE, II FLOOR, ARIHANT PLAZA, KUSUGAL ROAD, KESHWAPUR, HUBLI-23 ...APPELLANT (BY SRI. S K KAYAKAMATH., ADV) - 3 - HC-KAR NC: 2025:KHC-D:13043 MFA No. 101177 of 2015 C/W MFA No. 101535 of 2015 AND: 1. SHARAWWA W/O MALLIKARJUN KADAKOL, AGE: 42 YEARS, OCC: HOUSEWIFE, R/O: ASHREYA COLONY, BAILHONGAL, DIST: BELAGAVI. 2. KUMAR AJAY S/O MALLIKARJUN KADAKOL AGE: 15 YEARS, OCC: STUDENT, R/O: ASHREYA COLONY, BAILHONGAL, DIST: BELAGAVI SINCE MINOR REP. BY M/G 1ST RESPONDENT SMT. SHARAWWA W/O MALLIKARJUN KADAKOL. 3. SHRI. SHANTAPPA K KALI AGE: 53 YEARS, OCC: BUSINESS, R/O: VIJAY NAGAR, NEAR APMC YARD, TQ & DIST: HAVERI (OWNER OF TATA TRUCK BEARING REGISTRATION NO.MEI -5687) 4. KUMAR PANCHAPPA S/O MALLIKARJUN KADAKOL, AGE: 25 YEARS, OCC: STUDENT, R/O: MUNAVALLI, TALUK: SAUNDATTI, DIST: BELAGAVI. 5. SMT. BASAMMA W/O GANGAPPA HOSUR AGE: 23 YEARS, OCC: HOUSEWIFE, R/O: MUTAWAD, TALUK: SAUNDATTI, DIST: BELAGAVI. 6. SMT. BASAWWA W/O MUGEPPA @ GURUPADAPPA KADAKOL, AGE: 73 YEARS, OCC: NIL, R/O: MUNAVALLI, TALUK: SAUNDATTI, DIST: BELAGAVI. ...RESPONDENTS (BY SRI. N L BATAKURKI, ADV FOR R1 & R2., SRI. M.B. MADANALLI, ADV FOR R3, SRI. CHANDRASHEKHAR M. HOSAMANI, ADV FOR R4 & R6 NOTICE TO R5 IS DISPENSED WITH) - 4 - HC-KAR NC: 2025:KHC-D:13043 MFA No. 101177 of 2015 C/W MFA No. 101535 of 2015 THIS MFA IS FILED U/S.173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT & AWARD DATED:04.02.2015, PASSED IN MVC.NO.574/2012, ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDL. MACT, BAILHONGAL, AWARDING COMPENSATION OF Rs.11,02,600/- ALONG WITH INTEREST AT THE RATE OF 9% P.A. FROM THE DATE OF PETITION TILL ITS DEPOSIT. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ASHOK S. KINAGI ORAL JUDGMENT 1. These appeals arise out of the judgment and award dated 04.02.2015 passed in MVC No. 574 of 2012 by the learned Senior Civil Judge and Additional MACT, Bailhongal. 2. Brief facts leading rise to the filing of these appeals are as follows: 3. On 10.12.2011, the deceased and other coolies/hamals were loading the cotton bales to the truck bearing registration No.MEI-5687, at APMC yard, Bailhongal. The deceased Mallikarjun was on the body of the truck, and loading the cotton bales. - 5 - HC-KAR NC: 2025:KHC-D:13043 MFA No. 101177 of 2015 C/W MFA No. 101535 of 2015 While loading so, at about 06.00 p.m., the driver of the said truck without giving any signals or caution, suddenly moved the truck back. Due to the sudden moving of the truck, the deceased who was on the cotton bales and lorry, lost his balance, and fell down from the truck along with the cotton bales, and thereby caused an accident. Due to the impact, the deceased Mallikarjun had sustained the grievous injuries and he was admitted in the District Hospital, Belgaum, and thereafter he was shifted to KIMS Hospital, Hubli, for higher treatment. He succumbed to the injuries on 18.12.2011, when he was under treatment. The petitioners spent ₹ 50,000/- towards the treatment and other incidental charges. The petitioners being the legal representatives of the deceased Mallikarjun filed a claim petition under Section 166 of the MV Act claiming compensation for the death of the deceased Mallikarjun. Accordingly, prays to allow the claim petition. - 6 - HC-KAR NC: 2025:KHC-D:13043 MFA No. 101177 of 2015 C/W MFA No. 101535 of 2015 4. The owner of the truck filed a statement of objections denying the averments made in the claim petition, and contended that on 10.12.2011, the deceased and the other coolies were loading cotton bales in the truck bearing registration No.MEI-5687 at APMC yard, Bailhongal, as per the instructions of their master i.e., Commission Agent. While loading the cotton bales, the deceased stood on the ground, and without any precautions dragged the rope, which was tied the bale, at that time, bale fell down on the deceased, and he sustained injuries. It is contended that the accident was due to the negligence act of the deceased, and not as contended by the petitioners in the claim petition. It is contended that others have filed the claim petition in W.C.No.43 of 2012, claiming a compensation, which is pending. It is also contended that the driver of the truck possessed a valid and effective driving license as of the date of the accident. Hence, prays to dismiss the - 7 - HC-KAR NC: 2025:KHC-D:13043 MFA No. 101177 of 2015 C/W MFA No. 101535 of 2015 claim petition against the owner of the offending vehicle. 5. The insurance company filed a statement of objections denying the averments made in the claim petition, and contended that no accident was caused due to use of goods carrying vehicle, and the deceased sustained the injuries in some other incident. Also, contended that its liability is subject to terms and conditions of the policy. Hence, prays to dismiss the claim petition. 6. The tribunal, based on the pleadings of the parties, framed the relevant issues. 7. The petitioners, to substantiate their case, petitioner No.1 was examined as PW.1, examined one witnesses as PW.2 and marked 12 documents as Exs.P1 to P12. Conversely, the Officer of the Insurance Company was examined as RW.1, and marked 2 documents as Exs.R1 and R2. - 8 - HC-KAR NC: 2025:KHC-D:13043 MFA No. 101177 of 2015 C/W MFA No. 101535 of 2015 8. The Tribunal, after assessing the verbal and documentary evidence allowed the claim petition in part vide judgment dated 04.02.2015 and awarded a compensation of ₹11,02,600/- with interest at the rate of 6 % per annum from the date of the petition till deposit, and also held that the respondents i.e., the owner and the insurance company are jointly and severally liable to pay the compensation amount, and directed the insurance company to deposit the compensation amount. 9. The insurance company and petitioners, filed these appeals, challenging the liability and the quantum of compensation awarded by the tribunal. 10. Heard the learned counsel for the Insurance Company, and learned counsel for the petitioners. 11. Learned counsel for the insurance company submits that the deceased was working as a coolie. On 10.12.2011, the deceased and other coolies were loading cotton bales in the offending truck. While - 9 - HC-KAR NC: 2025:KHC-D:13043 MFA No. 101177 of 2015 C/W MFA No. 101535 of 2015 loading the cotton bales, the deceased stood on the ground and without any precaution dragged the rope which was tied to the bale. At that time the bale fell down on the deceased, and he sustained injuries. The deceased was not on the offending vehicle at the time of the alleged incident. Hence, the accident occurred outside the vehicle. Hence the insurance company is not liable to pay the compensation as claimed by the petitioners. He submits that the deceased was working under the commission agent. The said aspect was not adequately considered by the tribunal. He also submits that the compensation awarded by the tribunal is on the higher side. He also submits that there is no negligence on the part of the driver of the offending vehicle. Hence, on these grounds, prays to allow the appeal filed by the insurance company and dismiss the appeal filed by the petitioners. - 10 - HC-KAR NC: 2025:KHC-D:13043 MFA No. 101177 of 2015 C/W MFA No. 101535 of 2015 12. Per contra, learned counsel for the petitioners submits that the insurance company has not taken a defence in the statement of objections that the deceased stood on the ground, and not on the offending vehicle. He also submits that the petitioners have pleaded in the claim petition that the deceased was on the truck and the said fact has not been denied. He submits that there is no specific denial as per Order VIII Rule 5 of CPC. If there is no specific denial, it amounts to admission as per proviso to Rule 5 of Order VIII of CPC. He submits that the fact admitted to be proved as per Section 58 of the Indian Evidence Act. Every allegation of the fact of the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the written statement, it shall be taken to be admitted. Further, in order to buttress his argument, he has placed reliance on the judgment of the Hon'ble Apex Court in the case of M/S. GIAN CHAND - 11 - HC-KAR NC: 2025:KHC-D:13043 MFA No. 101177 of 2015 C/W MFA No. 101535 of 2015 AND BROTHERS VS. RATTANLAL @ RATTAN SINGH reported in (2013) 2 SCC 606. 13. He also submits that the Insurance Company examined the officer as RW.1, even in his examination-in-chief he has not deposed that the deceased was not on the offending vehicle, and he stood on the ground. The burden is on the insurance company to prove that, at the time of accident, the deceased was not on the offending vehicle, but he stood on the ground. The insurance company has failed to discharge the burden placed on it. The tribunal was justified in recording its finding that the deceased at the time of accident was on the truck i.e., on the offending vehicle, and the accident occurred due to the rash and negligent act of the driver of the offending truck. He also submits that the compensation awarded by the tribunal is on a lower side. Hence, on these grounds, he prays to dismiss the appeal filed by the insurance company - 12 - HC-KAR NC: 2025:KHC-D:13043 MFA No. 101177 of 2015 C/W MFA No. 101535 of 2015 and to allow the appeal filed by the petitioners by enhancing the compensation. 14. Perused the records, and considered the submissions of the learned counsel for the parties. 15. The points that would arise for consideration are regarding the liability and the quantum of compensation. 16. It is the case of the petitioners that on 10.12.2011, the deceased Mallikarjun was in the APMC market yard, Bailhongal, and he was loading the cotton bales at about 06.00 p.m. in the truck bearing registration No.MEI-5687. When he was on the truck, the driver suddenly took the truck backside, as a result, the deceased lost his balance and fell down from the truck along with the cotton bales. Therefore, the accident occured and the deceased Mallikarjun sustained the grevious injuries. He succumbed to the injuries during the treatment. The petitioner to prove that the accident occurred due to the negligent - 13 - HC-KAR NC: 2025:KHC-D:13043 MFA No. 101177 of 2015 C/W MFA No. 101535 of 2015 act of the driver of the offending vehicle. Petitioner No.1 was examined as PW.1 and reiterated the averments of claim petition in the examination-in- chief produced a copy of the complaint and produced the charge sheet marked as Ex.P12, which discloses that the police, after investigation, filed the charge sheet against the driver of the offending vehicle for the offences punishable under Sections 279, 338, 304-A of IPC, Section 134 read with 184 of the IMV Act. 17. The petitioners also examined the PW.2 , who is the eyewitness to the incident, who has deposed that he and the deceased Mallikarjun were working as coolies at APMC yard, Bailhongal. On 10.12.2011 at about 06.00 p.m, PW.2 and deceased were loading the cotton bales on the truck bearing registration No.MEI-5687. At that time, the driver of the offending truck suddenly started the same in a rash and negligent manner, wherein he took the truck in a - 14 - HC-KAR NC: 2025:KHC-D:13043 MFA No. 101177 of 2015 C/W MFA No. 101535 of 2015 reverse direction, without giving any signal. As a result, the Mallikarjun lost the balance and fell down along with the cotton bales and sustained grievous injuries. 18. From the perusal of the evidence of PW.1 and PW.2, the petitioners have proved that the deceased was working as a coolie, and he was loading the cotton bales on the offending truck, and the driver took the truck in a reverse direction, as a result, the deceased lost the balance and fell down and sustained grievous injuries. The said fact has not been seriously disputed by the insurance company. From the perusal of the statement of objections filed by the insurance company, except bare denial, nothing has been pleaded by the insurance company in the statement of objections stating that the deceased was not on the offending vehicle at the time of accident, and that he stood on the ground. - 15 - HC-KAR NC: 2025:KHC-D:13043 MFA No. 101177 of 2015 C/W MFA No. 101535 of 2015 19. I have perused the examination-in-chief of RW.1 and statement of objections filed by the insurance company, but RW 1 in the course of cross- examination, has stated that at the time of accident the deceased Mallikarjun was standing on the ground, and not on the offending vehicle. The said statement made by RW.1 is without pleading. It is settled law that no evidence is useful in court without supporting pleadings. Parties are allowed to lead evidence on basis they have pleaded in their statement. Evidence cannot be used to construct a new case or to make out a new claim that was not put forward in the initial pleadings. Admittedly, in the instant case, the insurance company has not pleaded in the statement of objections stating that the deceased was not on the offending vehicle and he stood on the ground. The insurance company has put forward the new claim in the evidence which is inadmissible. - 16 - HC-KAR NC: 2025:KHC-D:13043 MFA No. 101177 of 2015 C/W MFA No. 101535 of 2015 20. The tribunal considering the said aspect, has rightly held that the insurance company has failed to prove that at the time of accident the deceased was not on the offending vehicle, but he was standing on the ground. The tribunal was justified in fastening the liability on both i.e., the owner as well as the insurance company. The insurance company has also not examined the driver of the offending vehicle to prove that there was no negligence on the part of the driver of the offending vehicle. 21. On the other hand, the petitioners have examined the eyewitness as PW2, and there is no rebuttal evidence from the insurance company to rebut the evidence of PW.2. Thus, the tribunal was justified in fastening the liability on both i.e., the owner and insurance company of the offending truck. Thus, the tribunal was justified in fastening the liability jointly and severally. In view of the same, the point regarding the liability is answered accordingly. - 17 - HC-KAR NC: 2025:KHC-D:13043 MFA No. 101177 of 2015 C/W MFA No. 101535 of 2015 Reg. quantum of compensation: 22. The deceased was aged 50 years at the time of accident and he was working as a coolie and earning ₹10,000/- per month. To substantiate the case of the petitioners, the petitioners have not produced any proof of income. In the absence of proof of income, the notional income should be taken as per the schedule notified by the Karnataka State Legal Services Authority. The accident occurred in 2011, the income has to be assessed at ₹ 6,000/-. 23. In addition to it, 10% towards the future prospects has to be added, as per the proposition of law laid down by the Hon’ble Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED VS PRANAY SETHI and Others reported in (2017) 16 SCC 680, which comes to Rs.6,600/- (6000+10%). The deceased died leaving behind the petitioners and respondent Nos.3 to 5 before the tribunal, admittedly, respondent No.4 is a married daughter. - 18 - HC-KAR NC: 2025:KHC-D:13043 MFA No. 101177 of 2015 C/W MFA No. 101535 of 2015 Considering the proposition of law laid down by the Hon'ble Apex Court in the case of NATIONAL INSURANCE COMPANY LTD. VS. BIRENDER AND OTHERS reported in year AIR 2020 SC 434, wherein the Hon'ble Apex Court held in para 15 which reads as follows: “It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact that whether the concerned legal representative was fully dependant on the deceased and not to limit the claim towards conventional heads only.” 24. There are five dependants. Although the daughter was married, she is entitled to the compensation. Therefore, 1/4th of his income must be deducted towards his personal expenses, which comes to Rs.6,600/4= 1,650/-. Thus, the income of the - 19 - HC-KAR NC: 2025:KHC-D:13043 MFA No. 101177 of 2015 C/W MFA No. 101535 of 2015 deceased is taken at Rs.4,950/-. The multiplier applicable to the age group is ‘13’. Thus, the petitioners are entitled to a compensation of Rs.7,72,200/- (Rs.4,950/-x 12 x 13) under the heads of ‘loss of dependency’. 25. There are 5 petitioners. Each petitioner is entitled to compensation under the heads of consortium i.e., (48,000 X5) = ₹2,40,000/-. The petitioners are also entitled to compensation under the heads of loss of estate and funeral expenses i. e., ₹ 36,000/- respectively. 26. Further, the accident occurred on 10.12.2011 and the deceased died on the spot on 18.12.2011 when he was under treatment and the petitioners have spent an amount of ₹ 30,000/- towards the medical expenses. Further he was admitted in the hospital for 8 days. Thus, the petitioners are also entitled for attendant charges etc. which comes to ₹10,000/-. Thus the petitioners are entitled for total - 20 - HC-KAR NC: 2025:KHC-D:13043 MFA No. 101177 of 2015 C/W MFA No. 101535 of 2015 compensation of ₹10,88,200/- as against ₹ 11,02,600/- awarded by the tribunal. 27. Thus, the petitioners are entitled to a total compensation, which is assessed as follows: Particulars Compensation amount in (Rs.) Loss of dependency (Rs.4,950/-x 12x 13) 7,72,200/- Loss of consortium (Rs.48,000/- x 5) 2,40,000/- Funeral expenses and loss of Estate 36,000/- Medical expenses 30,000/- Attendant charges 10,000/- Total 10,88,200/- Compensation awarded by the Tribunal 11,02,600/- Reduced compensation 14,400/- 27. Thus the petitioners are entitled to a total compensation of ₹10,88,200/- as against ₹ 11,02,600/- awarded by the tribunal. The compensation awarded by the tribunal requires to be reduced and accordingly it is - 21 - HC-KAR NC: 2025:KHC-D:13043 MFA No. 101177 of 2015 C/W MFA No. 101535 of 2015 reduced by ₹14,400/-. In view of the same, the point on quantum is answered accordingly. 28. In view of the above discussion, I proceed to pass the following order: ORDER i. The appeal in MFA No.101535/2015 filed by the insurance company is partly allowed. ii. The appeal in MFA No.101177/2015 filed by the petitioners is dismissed. iii. The judgment and award passed by the tribunal is modified. iv. The petitioners are entitled to total compensation of ₹10,88,200/- with interest at the rate of 6% per annum from the date of petition till the date of realisation of the amount. v. The compensation awarded by the tribunal is reduced by ₹14,400/-. vi. The respondents i.e., owner of the offending truck and insurance company are jointly and - 22 - HC-KAR NC: 2025:KHC-D:13043 MFA No. 101177 of 2015 C/W MFA No. 101535 of 2015 severally liable to pay the compensation amount with accrued interest. vii. The insurance company is directed to deposit the compensation amount with the accrued interest within 8 weeks from the date of receipt of a copy of this judgment. viii. Registry is directed to transfer the amount in deposit and TCRs, if any, to the tribunal forthwith. ix. Insofar as the apportionment is concerned, the judgment and award passed by the tribunal is maintained. Sd/- (ASHOK S. KINAGI) JUDGE SKS CT: BSB List No.: 1 Sl No.: 11