- 1 - HC-KAR NC: 2025:KHC-D:10303 MFA No. 20864 of 2013 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 14TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI MISCELLANEOUS FIRST APPEAL NO. 20864 OF 2013 (MV-) BETWEEN: 1. THE BRANCH MANAGER, UNITED INDIA INSURANCE CO. LTD., MELLIGERI COMPLEX, BAGALKOT, REPRESENTED THROUGH ITS DIVISIONAL OFFICE, SEETA SMRUTI, P.B. NO.156, MARUTI GALLI, BELAGAVI, REP. BY ITS SR. DIVISIONAL MANAGER. …APPELLANT (BY SRI. NAGANGOUDA R. KUPPELUR, ADV) AND: 1. KAVITA W/O BASU INDAWAR AGE: 21 YEARS, OCC: HOUSEHOLD WORK, 2. YALLAWWA W/O HANAMANTH INDAWAR AGE: 50 YEARS, OCC: HOUSEHOLD WORK, BOTH ARE R/O: SUNAG VILLAGE, TQ: BILAGI, DIST: BAGALKOT. 3. MALLAPPA LAXMAPPA DEVINAVAR AGE: 40 YEARS, OCC: OWNER OF VEHICLE, (KA-29/A-7772), R/O: SUNAG VILLAGE, TQ: BILAGI, DIST: BAGALKOT. …RESPONDENTS (BY SRIYUTHS. MRUTYUNJAY TATA BANGI AND AMRUTA M. MALNALLI, ADVS FOR R1 & R2; SRI. SANTOSH B. MANE, ADV FOR R3) MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.08.30 15:42:03 +0530 - 2 - HC-KAR NC: 2025:KHC-D:10303 MFA No. 20864 of 2013 THIS MFA IS FILED U/S.173(1) OF MV ACT 1988, AGAINST THE JUDGMENT AND AWARD DATED:24-11-2012 PASSED IN MVC NO.19/2012 ON THE FILE OF MEMBER, MACT-VII, BILAGI, AWARDING THE COMPENSATION OF RS.4,32,000/- WITH INTEREST AT THE RATE OF 6% P.A., FROM THE DATE OF PETITION TILL ITS REALISATION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) 1. This Miscellaneous First Appeal is filed by the Insurance Company challenging the Judgment and award dated 24.11.2012 passed in MVC No.19/2012 by the learned Member, MACT-VII, Bilagi (for short ‘the Tribunal). 2. Brief facts leading rise to the filing of this appeal are as follows: On 04.07.2011, deceased Basu was returning to his village in a motor cab vehicle bearing No.KA-29/A-772. The driver was driving the said vehicle in a rash and negligent manner, as a result of which the accident occurred. The deceased Basu sustained grievous injuries and succumbed to the injuries. The petitioners, being the - 3 - HC-KAR NC: 2025:KHC-D:10303 MFA No. 20864 of 2013 legal representatives of the deceased Basu, filed a claim petition under Section 163-A of the M.V.Act. 3. The owner of the vehicle filed his statement of objections denying the averments made in the claim petition and admitting that he is the owner of Motor cab bearing No.KA-29/A-772 and contended that there was no negligence on the part of the driver of the offending vehicle. It is contended that the offending vehicle is insured with Respondent no.2- the insurance company and hence, prays to dismiss the claim petition against the owner of the offending vehicle. 4. The Insurance Company filed its statement of objections denying the averments made in the claim petition. It was contended that the driver of the offending vehicle was not possessing a valid and effective driving licence as of the date of the accident. Hence, prays to dismiss the claim petition against the Insurance Company. - 4 - HC-KAR NC: 2025:KHC-D:10303 MFA No. 20864 of 2013 5. The Tribunal, based on the pleadings of the parties framed relevant issues. 6. To substantiate their case, petitioner No.2 was examined as PW-1 and marked 7 documents as Exs.P.1 to Ex.P.7. In rebuttal, on behalf of the Insurance Company, the Branch Manager was examined as RW-1 and marked 1 document as Ex.R.1. The Tribunal, after assessing the verbal and documentary evidence, allowed the claim petition in part and awarded compensation of Rs.4,32,000/-, directing Insurance Company to deposit the compensation amount within a period three months. Aggrieved by the Judgment and award passed in MVC No.19/2012, the Insurance Company filed this Miscellaneous First Appeal. 7. Heard the learned counsels for the Insurance Company and the learned counsel Smt.Amruta M.Malnalli for the claimant. - 5 - HC-KAR NC: 2025:KHC-D:10303 MFA No. 20864 of 2013 8. Learned counsel for the Insurance Company submits that the deceased was traveling on the roof of the vehicle and there is a violation of policy conditions. He further submits that, under Section 123 of the M.V.Act, there is a prohibition for traveling on the roof of the vehicle. He also submits that the driver of the offending vehicle was not possessing a valid and effective driving licence as of the date of the accident. These aspects were not properly appreciated by the Tribunal and committed an error in fastening the liability on the Insurance Company. Hence, on these grounds he prays to allow the appeal. 9. Per contra the learned counsel for the claimant submits that there is no bar for traveling on the roof of a vehicle. Further to buttress her argument, she has placed reliance on the Judgment of this Court in the case of New India Assurance Company, Bengaluru vs. Jayashree @ Laxmi and others1. She further submits that though the Insurance Company has taken a defence that the 1 2009 (5) KLJ 654 - 6 - HC-KAR NC: 2025:KHC-D:10303 MFA No. 20864 of 2013 driver was not possessing a valid and effective driving licence, the burden is on of Insurance Company. She contends that the Insurance Company has not discharged burden placed on him as per section 101 of the Indian Evidence Act. Hence, she submits that the Tribunal was justified in passing the impugned Judgment. On these grounds, she prays to dismiss the appeal. 10. Perused the records and considered the submissions of the learned counsels for the parties. 11. The point that arises for consideration is with regard to liability. 12. There is no dispute regarding to the death of Basu in the road traffic accident. To establish that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle, the petitioners produced the certified copy of the charge sheet, which is marked as Ex.P1. - 7 - HC-KAR NC: 2025:KHC-D:10303 MFA No. 20864 of 2013 13. From the perusal of the charge sheet, it is disclosed that a criminal case was registered against the driver of the offending vehicle for the offences punishable under Sections 279 and 304(A) of the IPC. However, the Police have not filed the charge sheet against the driver for any offence under the provision of the M.V. Act. The burden lies on the Insurance Company to establish that the driver did not possess a valid and effective driving license as on the date of the accident. The Insurance Company except examining its officer has not produced any records to establish that the driver of the offending vehicle was not possessing a valid and effective driving license as on the date of the accident. 14. Learned counsel for the Insurance Company contends that the deceased Basu was traveling on the roof of the vehicle. Therefore, there was a violation of the policy conditions. However, this issue is squarely covered by the Division Bench of this Court in the case of Jayashree @ Laxmi and others (supra), wherein it was - 8 - HC-KAR NC: 2025:KHC-D:10303 MFA No. 20864 of 2013 held that when a person falls from the roof of the vehicle and there is no positive evidence to indicate that neither the driver nor conductor of the Bus did not object the deceased to go on the roof of the Bus. In view of the definition of “passenger” under the Karnataka Motor Vehicle Rules, this Court held that the ‘deceased also a passenger traveling in the bus - no positive prohibition of a travel of such a passenger or positive banning of covering of such risk of passenger who travel on roof of bus. Dismissed the appeal filed by the Insurance Company. 15. Admittedly, in the instant case, the Insurance Company has not placed any positive evidence to establish that the driver had objected to the petitioner to go on the roof of the vehicle. Further, the Insurance Company has not examined the driver of the offending vehicle. The Tribunal considering the proposition laid down by the Division Bench of this Court in the case of Jayashree @ - 9 - HC-KAR NC: 2025:KHC-D:10303 MFA No. 20864 of 2013 Laxmi and others (supra) and held the Insurance Company is liable to pay the Compensation. 16. Further, the Division Bench, considering Section 147(1)(b) of the Motor Vehicles Act, held that there is no positive prohibition on travel of such a passenger or positive banning of covering of such a risk of passenger to travel on the roof of the bus. The only indication under Section 147(1)(b) is that any passenger of a public service vehicle is covered whenever there is death or bodily injury to such a passenger during the accident, arising out of use of vehicle in a public place. In the strict sense of Section 147(1)(b) of the M.V.Act, the deceased or the injured was a passenger, whol was traveling in a public transport and died or injured in an act arising out of the use of the vehicle in the public place. 17. Admittedly, the deceased Basu died in the accident arising out of the use of vehicle in a public place. The Tribunal was justified in fastening the liability jointly and severally on the insurance company along with the - 10 - HC-KAR NC: 2025:KHC-D:10303 MFA No. 20864 of 2013 owner of the vehicle. I do not find any error in fastening the liability on the Insurance Company. 18. Learned counsel for the claimant has filed a memo along with a copy of the learner’s license, which discloses that the driver of the offending vehicle was possessing the learner’s license valid from 22.06.2011 to 21.12.2011. Admittedly, the accident occurred on 04.07.2011, during the validity of the said license. Thus, as on the date of the accident, the driver was in possession of a valid and effective driving license. 19. As the Tribunal was justified in passing impugned Judgment, I do not find any error in fastening the liability jointly and the severally on the insurance company along with the owner of the vehicle. Hence, in view of the above discussion, I proceed to pass the following: - 11 - HC-KAR NC: 2025:KHC-D:10303 MFA No. 20864 of 2013 ORDER (i) This miscellaneous First Appeal is dismissed. (ii) The impugned judgment and award dated 24.11.2012 passed in MVC No.19/2012 by the learned Member, MACT-VII, Bilagi, is hereby confirmed. (iii) The amount in deposit, if any, be transmitted to the Tribunal. Sd/- (ASHOK S. KINAGI) JUDGE RHR/- CT: BSB List No.: 1 Sl No.: 2