- 1 - NC: 2025:KHC-D:204 MFA No. 23268 of 2012 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 07TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.23268 OF 2012 (MV-I) BETWEEN: THE DIVISIONAL MANAGER, THE ORIENTAL INSURANCE COMPANY LTD., REP. BY ITS BRANCH MANAGER, MAGAVI BUILDING, P.B. ROAD, HAVERI, REP. BY IT’S ASST. MANAGER, REGIONAL OFFICE, SUMANGALA COMPLEX, LAMINGTON ROAD, HUBLI-29. …APPELLANT (BY SRI G.N.RAICHUR, ADVOCATE.) AND: 1. SRI BASAVARAJ S/O. NAGAPPA ILAGER, AGE: 24 YEARS, OCC: NOW NIL, R/O: HALANKERI, 1ST CROSS, NAGENDRANAMATTI, NEAR RAILWAY TRACK, HAVERI. 2. SRI BASAVARAJ S/O. SUBHAS CHOUSHETTI, AGE: 27 YEARS, OCC: BUSINESS, R/O: HATTARAGERI ONI, SAVALGIMATH ROAD, HAVERI, DIST: HAVERI. …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 31.05.2012 PASSED IN MVC NO.105/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE AND Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:204 MFA No. 23268 of 2012 MEMBER, ADDL. MACT, HAVERI, BY ALLOWING THIS APPEAL AND ETC.,. THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) This appeal is filed by the Insurance Company challenging the judgment and award dated 31.05.2012, passed by the Senior Civil Judge and Addl. MACT, Haveri, in MVC No.105/2010, so far as, quashing the order of pay and recovery directing the Insurance Company to pay the compensation at first instance and then recover it from the owner of the motorcycle. 2. The Insurance Company has not challenged on any other grounds including the quantum of compensation. 3. The claimant was pillion rider on the motorcycle bearing No.KA-14/R-5442 travelling on 16.08.2006 at about 03.00 p.m. and met with accident with the lorry bearing No.MH-14/U-5925. Therefore, filed the claim petition under section 166 of the Motor Vehicles Act, against the owner and - 3 - NC: 2025:KHC-D:204 MFA No. 23268 of 2012 insurer of the motorcycle No.KA-14/R-5442. The tribunal awarded compensation of Rs.51,000/- with interest at the rate of 6% p.a. from the date of petition till realization and exonerated the appellant Insurance Company on the reason that the rider of the motorcycle was not having driving licence. But the order of pay and recovery is made directing the appellant Insurance Company to pay the amount at the first instance to the claimant and then recover it from the owner of the motorcycle. 4. This order of pay and recovery is challenged by the Insurance Company on the ground that the claimant being the pillion rider is not a third party. Hence, the principle of pay and recovery is not applicable as per sub- section (1), (2), (4) and (7) of section 149 of the M.V.Act. Therefore, prays to modify the judgment and award passed by the tribunal by setting aside the award so far as making order of pay and recovery. 5. In the present case, Ex.P.2 is the complaint, in which the allegation is made against respondent No.2 owner of the motorcycle, FIR is registered against respondent No.2, - 4 - NC: 2025:KHC-D:204 MFA No. 23268 of 2012 charge sheet is filed against respondent No.2 owner of the motorcycle, since he was riding the motorcycle and caused the accident. 6. It is proved that as on the date of accident respondent No.2 did not have driving licence to drive the motorcycle. The tribunal awarded compensation of Rs.51,000/- with interest at the rate of 6% p.a. from the date of petition till its realization, exonerated the appellant Insurance Company but an order of pay and recovery is made. 7. The claimant is not a third party to the motorcycle No.KA-14/R-5442 since the claimant was a pillion rider. The pillion rider on the motorcycle cannot be categorized as third party. The order of pay and recovery is to be made as per the provisions of sub-section (1), (2), (4) and (7) of section 149 of the M.V.Act. Sub-section (1) of section 149 clearly reveals, the Insurance Company as if judgment debtor shall satisfy the third parties in case of breach to be established under sub-section (2) of section 149 of the Act. Then, as per sub-section (4), (5) and (7) of - 5 - NC: 2025:KHC-D:204 MFA No. 23268 of 2012 section 149 of the Act, the mode of recovery is reflected. Therefore, where the claimant is third party, then only the order or pay and recovery could be made. 8. In the present case, the claimant being the pillion rider on the motorcycle, could not be categorized as a third party. Therefore, order of pay and recovery made by the tribunal is not correct. When it is proved that the Insurance Company is liable to be exonerated and the owner of motorcycle alone is liable to pay the compensation and the claimant was the pillion rider of the motorcycle, hence, passing an order of pay and recovery by the tribunal is not correct. Accordingly the said observation and order passed by the tribunal is liable to be set aside. Accordingly it is set aside. 9. The other observations and quantum of compensation determined by the tribunal is kept intact. Therefore, it is ordered that respondent No.2 owner of the motorcycle alone is liable to pay compensation to the claimants. Hence the appeal is liable to be allowed. Hence, I proceed to pass the following: - 6 - NC: 2025:KHC-D:204 MFA No. 23268 of 2012 ORDER i) The appeal is allowed. ii) The judgment and award dated 31.05.2012, passed by the Senior Civil Judge and Addl. MACT, Haveri, in MVC No.105/2010 is modified to the extent that the direction to pay and recover is set aside. iii) The other observations and directions made are kept intact. iv) The owner of the motorcycle shall play compensation to the claimant. v) The amount in deposit shall be transmitted to the tribunal. vi) No order as to costs. vii) Draw award accordingly. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE MRK CT: UMD List No.: 2 Sl No.: 44