- 1 - NC: 2025:KHC-D:1946 MFA No. 25661 of 2012 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 31ST DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.25661 OF 2012 (MV-I) BETWEEN: ABDULGANI MOHIDDIN MOHAMMED HUSSAIN, AGE: 63 YEARS, OCC: NOW NILL, R/O: TANVEER ISLAM MADARASALYAM MURDESHWAR, NOW AT KAJUBAG, KARWAR. …APPELLANT (BY SRI T.M. NADAF, ADVOCATE) AND: 1. GILAMOHIDDIN K.NAYAK, AGE: MAJOR, OCC: OWNER OF LORRY NO.KA-35/B-5433, R/O: H.NO. 8826, KARIGANNAVAR HAKKAL, HUBLI. 2. THE DIVISIONAL MANAGER, BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., 107/CRYSTAL, ARC 1ST FLOOR, BATMATTA ROAD, MANGALORE. 3. NARAYAN M.NAIK, OWNER OF TEMPO NO.KA-30/4953, R/O: MATTASARAMANE, KAIKANI, BHATKAL, KARWAR. 4. THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD., KAIKINI ROAD, KARWAR. …RESPONDENTS (BY SRI S.K. KAYAKAMATH, ADVOCATE FOR R2; SRI S.C. JAINAR, ADVOCATE FOR R4) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO SET ASIDE THE FINDING OF THE TRIBUNAL EXONERATING THE INSURER OF THE LORRY FROM PAYING THE COMPENSATION AND ENHANCE THE COMPENSATION AWARDED DATED 05.07.2012 IN M.V.C NO.38/2009 ON THE FILE OF THE I ADDITIONAL M.A.C.T., KARWAD AND ETC., Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:1946 MFA No. 25661 of 2012 THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) This appeal is filed by the claimant challenging the judgment and award dated 05.7.2012, passed by the 1st Additional M.A.C.T., Karwar, in MVC No.38/2009, seeking enhancement of compensation as well as modification of liability fastened on the 1st respondent-owner of the lorry by exonerating the 2nd respondent-Insurer of the lorry. 2. Heard the arguments and perused the material placed before the Court. 3. The occurrence of accident and injuries sustained by the claimant are not in dispute in this case. 4. The questions that are to be considered in this appeal are whether the claimant is entitled for enhanced compensation and whether exoneration of 2nd respondent- Insurance Company is correct. 5. While awarding compensation, the Tribunal has apportioned rash and negligence at 50% each to the driver of - 3 - NC: 2025:KHC-D:1946 MFA No. 25661 of 2012 lorry and driver of tempo. It is also proved from the evidence on record, i.e., FIR and complaint that the Tribunal is correct in apportioning rash and negligence at 50% each on both the drivers of lorry and tempo. 6. The Tribunal has exonerated the 2nd respondent- Insurance Company on the reason that the driver of lorry was not holding valid driving licence to drive the lorry or heavy goods vehicle. It is submitted that as per Ex.R2 – insurance policy, the driver of the lorry was holding driving licence to drive auto-rickshaw. RW.1 deposed that as on the date of accident, the driver of the lorry was holding driving licence to drive only auto-rickshaw, but not having driving licence to drive the lorry. Therefore, there is 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. 7. 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 lorry. Hence as per sub-section (1), (5) and (7) of section 149 of the M.V.Act, and - 4 - NC: 2025:KHC-D:1946 MFA No. 25661 of 2012 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 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. 8. Therefore, the Insurance Company is directed to deposit compensation within eight weeks from the date of - 5 - NC: 2025:KHC-D:1946 MFA No. 25661 of 2012 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. REG: QUANTUM OF COMPENSATION 9. In the present case, from the medical evidence on record it is proved that the claimant had suffered the following injuries. “Fracture dislocation of left hip with acetabular column fracture with fracture head of left femur.” 10. In this case, the Tribunal has awarded compensation under various heads as under: Sl. No. Heads. Amount in (Rs.) 1. Towards pain and agony for the fracture of left hip with acetabulum column fracture and also for the fracture of head of left femur, lacerated injury upon dorsal of left foot. 60,000/- 2. Towards medical expenses and attendant charges. 70,000/- 3. Towards loss of income during the course of treatment for 3 months 10,000/- 4. Towards conveyance charges 10,000/- Total: 1,50,000/- - 6 - NC: 2025:KHC-D:1946 MFA No. 25661 of 2012 11. The Tribunal awarded lesser amount of compensation. Therefore, the same is required to be enhanced by applying the correct parameters by modifying the judgment and award of the Tribunal. 12. Insofar as quantum of compensation is concerned, in the absence of proof of income, Rs.4,250/- per month is to be taken in view of the notional income chart prepared by the Karnataka State Legal Service Authority. There is no evidence on record regarding percentage of disability suffered by the claimant. Therefore, there is no compensation awarded under the head of loss of future income due to disability. 13. Considering the injuries sustained, a compensation of Rs.75,000/- towards pain and suffering, Rs.50,000/- towards loss of amenities are awarded. The compensation awarded towards medical expenses and hospital charges at Rs.70,000/- is as per the actual bills and receipts produced; therefore, the same is kept intact. Further, Rs.25,000/- towards incidental expenses like food, nourishment, traveling, attendant charges, etc., and Rs.25,500/- (4250 x 6) towards loss of income during laid up period for a period of six months, is awarded. - 7 - NC: 2025:KHC-D:1946 MFA No. 25661 of 2012 14. Thus, the claimant is entitled for total compensation under various heads as under: Sl. No. Heads. Amount in (Rs.) 1. Towards pain and suffering. 75,000/- 2. Towards medical expenses. 70,000/- 3. Towards loss of income during laid up period. 25,500/- 4. Towards incidental charges. 25,000/- 5. Towards loss of amenities. 50,000/- Total: 2,45,500/- 15. Therefore, the claimant is entitled for total compensation of Rs.2,45,500/- along with interest at the rate of 6% p.a. from the date of filing of the petition till realization, as against Rs.1,50,000/- awarded by the Tribunal. 16. In the result, I proceed to pass the following: ORDER i) The appeal is allowed in part. ii) The judgment and award dated 05.7.2012, passed by the 1st Additional M.A.C.T., Karwar, in MVC No.38/2009, stands modified. - 8 - NC: 2025:KHC-D:1946 MFA No. 25661 of 2012 iii) The claimant is entitled for total compensation of Rs.2,45,500/- along with interest at the rate of 6% p.a. from the date of petition till its realization, as against Rs.1,50,000/- 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 claimants 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 - 9 - NC: 2025:KHC-D:1946 MFA No. 25661 of 2012 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 along with a copy of this judgment. viii) No order as to costs. ix) Draw award accordingly. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE PMP List No.: 1 Sl No.: 17