- 1 - HC-KAR NC: 2025:KHC-K:4983-DB MFA No. 200605 of 2023 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 29TH DAY OF AUGUST, 2025 PRESENT THE HON'BLE MR. JUSTICE H.P.SANDESH AND THE HON'BLE MR. JUSTICE T.M.NADAF MISCL. FIRST APPEAL NO. 200605 OF 2023 (MV-I) BETWEEN: KHAJA PASHA S/O GHUDU SAB AGE 47 YEARS, OCC. AUTO ELECTRICIAN NOW NIL, R/O H.NO.7-814, MIJGORI ROAD, NAYA MOHALLA, NEAR KHAN BAKERY KALABURAGI. …APPELLANT (BY SRI KRUPA SAGAR PATIL, ADVOCATE) AND: 1. SRIDEVI W/O BABU RAO AGE MAJOR, OCC. HOUSEHOLD R/O. E11/-1094-11, MANDIR BASAVA NAGAR, KALABURAGI-585103. 2. IFFCO TOKIO GENERAL INSURANCE CO. LTD., 1-101/A/TF-2, 3RD FLOOR, KISAN KRUPA, ABOVE KANVA MART, OPP. KANNADA BHAVAN, KALABURAGI-585102. …RESPONDENTS Digitally signed by MADHUSHREE H Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC-K:4983-DB MFA No. 200605 of 2023 (V/O. DATED 29.08.2025, NOTICE TO R1 IS DISPENSED WITH; SMT. PREETI PATIL, ADV. FOR R2) THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD PASSED BY THE PRL. SENIOR CIVIL JUDGE AND MACT, KALABURAGI IN MVC NO.536/2021, DATED 14-12-2022 BY ENHANCING THE COMPENSATION AS PRAYED FOR AND FIXING THE LIABILITY TO PAY COMPENSATION ON THE 2ND RESPONDENT I.E., INSURANCE COMPANY, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL IS COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH AND HON'BLE MR. JUSTICE T.M.NADAF ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE T.M. NADAF) This appeal is by the claimant/appellant seeking for enhancement of compensation arising out of judgment and award dated 14.12.2022 in MVC No.536/2021 passed by the Principal Senior Civil Judge and MACT, Kalaburagi, on the ground of liability fastened on the owner of the vehicle and the quantum of compensation. 2. Heard Sri. Krupa Sagar Patil, learned counsel for the appellant and Smt. Preeti Patil Melakundi, learned counsel for respondent No.2 - insurance company. Notice of this appeal - 3 - HC-KAR NC: 2025:KHC-K:4983-DB MFA No. 200605 of 2023 on respondent No.1 is dispensed with vide order dated 29.08.2025 on the memo filed under Order-LXI, Rule-(14)(1) of CPC, stating that he was placed ex-parte before the Court from which award, this appeal is preferred. 3. Sri.Krupa Sagar Patil with all vehemence submitted that the injured was aged 45 years i.e. between 40 to 50 years and the multiplier taken is appropriate. The Tribunal in the absence of any income proof, taken the same at Rs.13,750/- fixed under the chart prepared by the Legal Service Authority, however, not added the Future Prospectus in view of the disability stated by the doctor at 63% to the whole body. The doctor-PW2 on clinical examination has stated that, has stated that condition of the appellant even on the day of examination is very pathetic as he is not understanding of routine commands and irrelevant in talking. On examination of left upper limb and lower limbs, Power – G-II-III, hyperreflexia noted, unable to hold the object firmly and in coordination of finer movements of fingers suggesting UMN hemiparesis. Examination of right lower limb in coordination of movements, hyperreflexia, stiff joint movements suggesting UMN Paresis. Loss of hearing in left ear on Rennis and Webber test. On the - 4 - HC-KAR NC: 2025:KHC-K:4983-DB MFA No. 200605 of 2023 said aspect, he has given the opinion stating that there is a assessment in total 63% to the entire body. In the cross examination, nothing worthwhile has been elicited in order to discredit the evidence of the doctor, except general questions. The doctor who has been examined is a seasoned doctor. The Tribunal in the presence of medical evidence, has taken the disability at 35%, though the entire disability at 63% due to non-movements in the upper limb and lower limb i.e., in coordination of movements. In these circumstances, in view of the disability at 63%, ought to have taken the loss of earning capacity at 100% and awarded appropriate compensation after adding the Future Prospectus to the income taken. As such, the compensation awarded by the Tribunal required to be re- determined and enhanced. 4. So far as liability is concerned, on the basis of Ex.P10, which is the order sheet, wherein the rider and owner of the vehicle pleaded guilty for the offence punishable under Section 181 of IPC and paid amount before the Principal Civil Judge and JMFC Court, Kalaburagi, the Tribunal fastened the liability against the owner of the vehicle, holding that the driver was driving the vehicle without valid and effective driving - 5 - HC-KAR NC: 2025:KHC-K:4983-DB MFA No. 200605 of 2023 license. As such, the Insurance Company is not responsible to pay the compensation and exonerated the Insurance Company. This finding of the Tribunal is erroneous for the reason in the absence of any evidence on the part of the Insurance Company to show that the owner of the vehicle cautiously and having knowledge regarding non-existence of license, despite entrusted the motorcycle to the rider. In these circumstances, in view of the law laid down by the Hon’ble Apex Court in M.Ananthi and others Vs. P Venkateshan and another in Civil Appeal arising out of SLP (Civil) No.377/2023 dated 29.01.2025, wherein at paragraph No.9 of the Judgment of the Hon'ble Apex Court relying on the judgment of the Hon'ble Apex Court in National Insurance Company Ltd. Vs. Swaran Singh and others reported in (2004) 3 SCC 297 held that, the claimant should not be allowed to suffer and run about the release of compensation awarded and that, it is in the fitness of things that the insurance company in such cases should first pay and then recover the amount, modifying the judgment and award passed by the High Court. Accordingly, sought to allow the appeal and enhance the compensation under all heads, as the same are meager when compared to - 6 - HC-KAR NC: 2025:KHC-K:4983-DB MFA No. 200605 of 2023 the injuries suffered. So also direct the Insurance Company to pay the compensation primarily with liberty to recover the same from the owner of the vehicle as stated in the case of PAPPU AND ORS. Vs. VINOD KUMAR LAMBA AND ANR1. 5. Refuting the submissions of the learned counsel appearing for the appellant/claimant, Smt. Preeti Patil Melakundi with all vehemence submitted that the Tribunal in the absence of any income proof, appropriately considered the income as fixed under the chart and awarded the compensation, which does not call for any interference and the ground seeking enhancement pleaded in the appeal required to be rejected. 6. So far as the ground of liability is concerned, the Tribunal having considered the fact that the rider as well as the owner of the vehicle appeared before the jurisdictional Magistrate and pleaded guilty and paid the fine amount for the offence invoked against Section 181 of Motor Vehicle Act, which clearly shows that the rider, not holding valid and effective driving license and the owner despite that entrusted the 1 2018 (3) SCC 308 - 7 - HC-KAR NC: 2025:KHC-K:4983-DB MFA No. 200605 of 2023 motorcycle to the rider to ride. In these circumstances, the liability fastened by the Tribunal on the owner of the vehicle is in accordance with law. 7. To buttress her argument, she has referred to paragraph 108 in SWARNA SINGH (supra), wherein the Hon'ble Apex Court held as under ‘although, as noticed hereinbefore, there are certain special leave petitions wherein the persons having the vehicles at the time when the accidents took place did not hold any licence at all, in the facts and circumstances of the case, we do not intend to set aside the awards. Such awards may also be satisfied by the petitioners herein subject to their right to recover the same from the owners of the vehicles indeed in the manner laid down therein. But this order may not be considered as a precedent’. In these circumstances, pay and recovery does not arise since in the judgment of Swarna Singh supra, it has clarified that the order may not be referred as precedent and sought to dismiss the appeal in its entirety. 8. Having heard the learned counsel appearing for the partners, perused the entire appeal papers as well as the trial - 8 - HC-KAR NC: 2025:KHC-K:4983-DB MFA No. 200605 of 2023 court record, the points that would arise for our consideration are as under i) Whether the Tribunal is justified in fastening the entire liability on the owner of the vehicle and exonerating the insurance company by paying compensation. ii) Whether the compensation awarded by the Tribunal befit within the expression just compensation? Both the points are taken up for consideration in order to avoid repetition of facts. 9. Our answer to the above points for consideration is ‘partly in affirmative’ for the following: REASONS 10. As per the records, the claimant/appellant is the third party. The motorcycle rider was riding the motorcycle, caused the accident while the deceased was trying to cross the road. The police have registered the case against the rider of the vehicle for the offences punishable under Sections 279, 337 - 9 - HC-KAR NC: 2025:KHC-K:4983-DB MFA No. 200605 of 2023 and 338 of IPC, as well as Section 187 of the Indian Motor Vehicles Act, 1988. As per Ex.P10, the accused Nos.1 and 2 i.e. the rider of the motorcycle as well as the owner of the motorcycle appeared before the Court, pleaded guilt before the concerned JMFC and convicted and sentenced to pay fine under the aforesaid penal provisions. As contended by the learned counsel appearing for the appellant, except these documents, there is no document or evidence placed on record to show that whether the owner of the vehicle having knowledge of the fact that the rider was not having any driving license entrusted the motor cycle to the said rider. The judgment relied on by the learned counsel for the respondent–Insurance Company, which was passed by a Co-ordinate Bench of this Court, as stated supra, contains a clear observation that the owner of the said vehicle, in those cases, consciously and with full knowledge entrusted the vehicle, which has been duly proved. However, in the case on hand, pleading guilty to the aforesaid sections may not be construed as proof that the person knowingly entrusted the vehicle. But it cannot be lost sight that there is some infraction in order to adhere with the policy conditions, in view of breach of policy conditions in terms of the law laid down - 10 - HC-KAR NC: 2025:KHC-K:4983-DB MFA No. 200605 of 2023 by the Hon'ble Apex Court in Pappu and Others supra. Since the injured is a third party, it is appropriate to hold that the appellant–Insurance Company should be directed to pay compensation primarily, with liberty to recover the same from the owner of the vehicle. Insofar as the judgment in Swarna Singh (supra) is concerned, the contention of the learned counsel for the respondent–Insurance Company cannot be countenanced, for the reason that this Court, under Article 141, this court is bound to follow the position of law wherein the Hon’ble Apex Court in M. Ananthi (supra), while referring to Swarna Singh supra, held that, in order to avoid difficulties faced by third parties in obtaining compensation, the Insurance Company is liable to pay the compensation and recover the same. This is for the reason that, in the event the third party is not compensated for the wrongful act committed by the rider of the motorcycle and the owner, injustice would result more to the victim. In the facts of the case, wherein the injured has suffered 63% disability which is coming in his avocation would not be in a position to reap the fruits of compensation as the award would remain as a paper award. "The Motor Vehicle Act being a benevolent provision, with the object of providing - 11 - HC-KAR NC: 2025:KHC-K:4983-DB MFA No. 200605 of 2023 speedy remedies to the claimants of accidents arising out of the use of a motor vehicle, as contemplated under its Provisions. Keeping the object of the Act in mind, it is just and appropriate to direct the Insurance Company primarily to satisfy the award with liberty to recover the same. Accordingly to that extent, the finding of the Tribunal is modified. 11. So far as the quantum is concerned, the Tribunal in the presence of medical evidence to the extent 63%, stating the condition of the appellant as on the date of clinical examination, the Tribunal has failed to consider and brushed aside the entire evidence, taking the disability at 35%. In the case on hand, the appellant, who was 45 years as on the date of the accident, suffered severe injuries resulting in 63% disability, along with various discomforts, and is now confined to bed, unable to pursue his earlier avocation and earn a livelihood. In these circumstances, we consider the disability at 63% as has been stated by the doctor. Having considered the disability at 63% and the income at Rs.13,750/-, since the appellant coming within the age group of 40 to 50 years, 25% ought to be added to the existing income. Looking to the compensation awarded under all the heads, except medical - 12 - HC-KAR NC: 2025:KHC-K:4983-DB MFA No. 200605 of 2023 expenses, are on the lower side, which requires re- consideration at the hands of this Court. Accordingly, we proceed to reconsider and re-determine the compensation awarded by the Tribunal. 12. On re-consideration, the total compensation would works out to: 1. Loss of future earning capacity (13,750 + 25% x 12 x 14 x 63%) Rs.18,19,125/- 2. Pain and suffering Rs.1,25,000/- 3. Food and nourishment (since the appellant was inpatient for a considerable period of time and operated) Rs.50,000/- 4. Medical expenses Rs.5,34,132/- 5. Loss of income during laid up period (13,750 x 6) Rs.82,500/- 5. Future medical expenses Rs.1,00,000/- 6. Loss of amenities Rs.1,00,000/- Total 28,10,757/- On the determination, the appellant is entitled for a sum of Rs.28,10,757/- which is rounded off to Rs.28,11,000/- as against Rs.14,39,400/- awarded by the Tribunal. Re-determined compensation shall carry interest at the rate of 6% per annum from the date of petition till realization. - 13 - HC-KAR NC: 2025:KHC-K:4983-DB MFA No. 200605 of 2023 13. Accordingly, we proceed to hold all the questions raised in favour of the claimant/appellant and against the insurance company and proceed to pass the following: ORDER i) The appeal is allowed in part. ii) The judgment and award dated 14.12.2022 in MVC No.536/2021 passed by the Principal Senior Civil Judge and MACT, Kalaburagi, is hereby modified iii) The insurance company is primarily is liable to pay the compensation with liberty to recover the same from the owner of the motorcycle. iv) The respondent - Insurance Company shall deposit the entire re-determined compensation along with interest at the rate of 6% from the date of petition till realization before the concerned Tribunal within 6 weeks from the date of receipt of copy of this order. - 14 - HC-KAR NC: 2025:KHC-K:4983-DB MFA No. 200605 of 2023 v) Upon deposit of the entire compensation, the release and deposit is as per the order passed by the Tribunal. vi) No order as to cost. Sd/- (H.P.SANDESH) JUDGE Sd/- (T.M.NADAF) JUDGE THM List No.: 1 Sl No.: 15 CT:JLR