- 1 - HC-KAR NC: 2024:KHC-D:18618 MFA No. 23852 of 2012 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 19TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 23852 OF 2012 (MV) BETWEEN: KUMAR VISHWANATH S/O MANIKASA KHODE, AGE: 15 YEARS, OCC: STUDENT, REPT. BY HIS MINOR GUARDIAN FATHER MANIKASA S/O VISWANATH KHODE, AGE: 51 YEARS, OCC: BUSINESS, R/O: HARUGERI CROSS, TQ: RAIBAG, DIST: BELGAUM. … APPELLANT (BY SRI. K. ANANDKUMAR, ADVOCATE) AND: 1. SRI. MALLAPPA S/O SATYAPPA HANJI, AGED: MAJOR, OCC: BUSINESS, R/O: AT POST: ALGWADI, TQ: RAIBAG, DIST: BELGAUM. 2. THE NEW INDIA ASSURANCE CO. LTD., D.O. MUDALGI BUILDING CLUB ROAD, BELGAUM. … RESPONDENTS (BY SRI. SANGAMESH S. GHULAPPANAVAR, ADVOCATE FOR R1; SRI. N.R. KUPPELUR, ADVOCATE FOR R2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, 1988, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 11.08.2011 PASSED IN M.V.C. NO.2604/2007 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT, BELGAUM. THIS APPEAL, COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT IS DELIVERED THEREIN AS UNDER: Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - HC-KAR NC: 2024:KHC-D:18618 MFA No. 23852 of 2012 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) This Miscellaneous First Appeal is filed by the claimant/injured under Section 173(1) of the Motor Vehicles Act, 1988, seeking for enhancement of compensation, being aggrieved by the judgment and award dated 11.08.2011 passed in MVC No.2604/2007 on the file of II Additional Senior Civil Judge and Additional MACT, Belgaum, (for short, ‘Tribunal’). 2. Heard the arguments of learned counsel for the parties and perused the records. 3. The occurrence of accident, injuries sustained by the claimant and coverage of insurance are not in dispute. 4. In the present case, from the medical evidence on record, it is proved that the claimant had suffered the following injuries: - 3 - HC-KAR NC: 2024:KHC-D:18618 MFA No. 23852 of 2012 “Manumitted fracture condylar process of mandible and head injury with ethmoidal fracture with left subcondylar fracture.” 5. The Tribunal after considering the facts and circumstances and evidence on record, has awarded total compensation of Rs.46,250/- along with interest at the rate of 6% per annum from the date of petition till the date of realization, under the following heads: 6. Upon considering the injuries sustained and amount of compensation awarded by the Tribunal, which is on lower side, the claimant is entitled to enhanced compensation on the correct parameters. SL.NO. PARTICULARS AMOUNT (IN.RS.) 1. Pain and agony. 15,000/- 2. Medical and other incidental expenses. 15,000/- 3. Loss of future earning capacity due to disability (Rs.15,000 x 15 x 5%) 11,250/- 4. Loss of amenities and future unhappiness. 5,000/- Total Compensation 46,250/- - 4 - HC-KAR NC: 2024:KHC-D:18618 MFA No. 23852 of 2012 7. The claimant was 10 years old at the time of accident and he was a minor. As per the evidence of PW.2- doctor and the disability certificate-Ex.P.10, the claimant has suffered 20% of permanent physical disability due to the fracture condylar process of the left mandible bone. But the Tribunal has considered only 5% of disability towards whole body, which is incorrect. Taking note of the aforesaid injuries suffered by the appellant and also medical evidence available on record, this Court is of the considered view that it would be just and appropriate to re-assess the disability of the appellant at 10%. The Tribunal has awarded Rs.15,000 towards medical and other incidental expenses, which is just and proper. Therefore, by following the principle of law laid down by the Hon’ble Apex Court in the case of Master Mallikarjun Vs. Divisional Manager, National Insurance Company Limited & Another1, compensation is awarded as under: 1 2014(14) SCC 396 - 5 - HC-KAR NC: 2024:KHC-D:18618 MFA No. 23852 of 2012 SL. NO. PARTICULARS AMOUNT (IN.RS.) 1. Pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience and discomforts, etc and loss of amenities in life on account of permanent disability. 1,00,000/- 2. Discomfort, inconvenience and loss of earnings to the parents during the period of hospitalization. 25,000/- 3. Medical and incidental expenses during the period of hospitalization. 15,000/- 4. Future medical expenses for correction of the mal union of fracture and incidental expenses for such treatment. 25,000/- Total Compensation 1,65,000/- 8. Thus, in all, the claimant would be entitled to total compensation of Rs.1,65,000/- with interest at the rate of 6% per annum from the date of petition till realization as against Rs.46,250/- awarded by the Tribunal. 9. The Tribunal has fastened the liability to pay compensation on the owner of the offending vehicle on the reason that the driver of the motorcycle was not holding driving licence to drive the same. Therefore, there is - 6 - HC-KAR NC: 2024:KHC-D:18618 MFA No. 23852 of 2012 infraction proved. Hence the Insurance Company is liable to be exonerated from liability to pay compensation. The owner is liable to pay compensation as rightly held by the Tribunal. 10. The Insurance Company is able to establish the defence as per sub-section (2) of section 149 of M.V.Act. However, the claimant is third party to the motorcycle. Hence as per sub-section (1), (5) and (7) of section 149 of the M.V.Act, and also 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 ANOTHER reported in (2018) 3 SCC 208; NATIONAL INSURANCE COMPANY LIMITED VS. SWARAN SINGH AND OTHERS reported in (2004) 3 SCC 297; and also as per the Full Bench decision of this Court in the case of NEW INDIA ASSURANCE COMPANY LIMITED VS. YELLAVVA AND ANOTHER reported in 2020 ACJ 2560, the Insurance Company shall satisfy the claim at the first instance to the claimant and then recover - 7 - HC-KAR NC: 2024:KHC-D:18618 MFA No. 23852 of 2012 it from the owner of the offending vehicle. However, the Insurance Company is at liberty to file execution petition before the jurisdictional executing Court as against the owner of the offending vehicle and may seek attachment of movables or immovable properties or both, till recovery is made and also the recovery process can be as per the decision of the Hon’ble Supreme Court in ORIENTAL INSURANCE CO. LTD., VS. NANJAPPAN AND OTHERS, reported in 2004 AIR SCW 952. 11. Therefore, the Insurance Company is directed to deposit the compensation within eight weeks from the date of receipt of a certified copy of this judgment at the first instance and then recover it from the owner of offending vehicle as discussed above. 12. In the result, I proceed to pass the following: ORDER i) The appeal is allowed in part. - 8 - HC-KAR NC: 2024:KHC-D:18618 MFA No. 23852 of 2012 ii) The judgment and award dated 11.08.2011 passed in MVC No.2604/2007 on the file of II Additional Senior Civil Judge and Additional MACT, Belgaum, stands modified. iii) The claimant is entitled for total compensation of Rs.1,65,000/- along with interest at the rate of 6% p.a. from the date of petition till its realization, as against Rs.46,250/- awarded by the Tribunal. iv) The Insurance Company shall deposit the amount within a period of eight weeks from the date of receipt of a copy of this judgment. v) The Insurance Company shall satisfy the claim at the first instance to the claimant - 9 - HC-KAR NC: 2024:KHC-D:18618 MFA No. 23852 of 2012 and then recover it from the owner of the offending vehicle. vi) The Insurance Company is at liberty to file execution petition before the jurisdictional executing Court as against the owner of the offending vehicle and may seek attachment of movables or immovable properties or both, till recovery is made and also the recovery process can be as per the decision of the Hon’ble Supreme Court in Oriental Insurance Co. Ltd., vs. Nanjappan and others, reported in 2004 AIR SCW 952. vii) Send back the trial Court records, if any, along with a copy of this judgment to the Tribunal. viii) No order as to costs. - 10 - HC-KAR NC: 2024:KHC-D:18618 MFA No. 23852 of 2012 ix) Draw award accordingly. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE PMP CT:BCK LIST NO.: 1 SL NO.: 59