- 1 - HC-KAR NC: 2025:KHC:30668-DB MFA No. 4229 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF AUGUST, 2025 PRESENT THE HON'BLE MR. JUSTICE D K SINGH AND THE HON'BLE MR. JUSTICE VENKATESH NAIK T MISCELLANEOUS FIRST APPEAL NO. 4229 OF 2017 (MV-D) BETWEEN: 1. MRS SERVATH SULTHANA W/O LATE IQLAS AHMED, AGED ABOUT 49 YEARS, R/AT HOUSE NO.11/88-J, SOMANATH NAGAR LAYOUT, SOMESHWARA VILLAGE, MANGALORE TALUK-575 020. 2. MR.MUNEEN AHMED S/O LATE IQLAS AHMED, AGED ABOUT 24 YEARS, R/AT HOUSE NO.11/88, SOMANATH NAGAR LAYOUT, SOMEOSHWARA VILLAGE, MANGALORE TALUK-575 020. 3. MRS.BALKIS NASREEN W/O K.ZAIUDDIN AHAMED, AGED ABOUT 80 YEARS, R/AT HOUSE NO.11/88-J, SOMANATH NAGAR LAYOUT, SOMESHWARA VILLAGE, MANGALORE TALUK-575 020. …APPELLANTS (BY SRI. PRAKASH.M.H., ADVOCATE) Digitally signed by VASANTHA KUMARY B K Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:30668-DB MFA No. 4229 of 2017 AND: 1. MR GANGADHAR S/O DOGRA POOJARY, AGED ABOUT 52 YEARS, R/AT SRI KRIPA HOUSE, KAVOOR, GANDHINAGAR, KUNJATHBAIL, MANGALORE TALUK-575015. 2. ROYAL SUNDARAM ALLIANCE INSURANCE CO.LTD., 45 & 48 WHITE ROAD, CHENNAI 40014 HAVING ITS BRANCH OFFICE AT THIRD FLOOR, SHALIMAR BUILDING, KANKANADY, MANGALORE-575001 …RESPONDENTS (BY SRI. H.S.LINGARAJU, ADVOCATE FOR R-2; R-1 IS SERVED AND UNREPRESENTED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:28.01.2017 PASSED IN MVC NO.1686/2013 ON THE FILE OF THE MACT & 2ND ADDITIONAL SENIOR CIVIL JUDGE, MANGALURU, D.K., PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE D K SINGH and HON'BLE MR. JUSTICE VENKATESH NAIK T - 3 - HC-KAR NC: 2025:KHC:30668-DB MFA No. 4229 of 2017 ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE VENKATESH NAIK T) 1. Heard learned counsel for the appellants and learned counsel for the respondents. 2. The claimants have filed this appeal under Section 173(1) of Motor Vehicles Act, 1988 (for short 'the Act') before this Court for enhancement of compensation being aggrieved by the judgment and award passed by the Tribunal in MVC.No.1686/2013 whereby the Tribunal had granted a total compensation Rs.68,25,000/- with interest at 9% p.a. from the date of petition till the date of realisation. 3. For the sake of convenience, the parties are referred to as per their ranking before the Tribunal. 4. Brief facts of the case as set out in the claim petition are that, on 21.01.2013 at about 5.10 pm while Iqlas Ahamed (hereinafter referred to as 'deceased') is the husband of 1st appellant, father of 2nd appellant and son of - 4 - HC-KAR NC: 2025:KHC:30668-DB MFA No. 4229 of 2017 3rd appellant, after finishing his duty at Mangalore Fisheries College, Yekkur, was proceeding towards his residence at Someshwara by riding his newly purchased Yamaha Ray Z Signus Scooter bearing Reg. No.KA-19-EJ- 6379 at Kademogaru near Jeppinamogaru Dwara, then a Tata Tipper lorry bearing Reg.No.KA-19-B-6202 being driven by its driver in rash and negligent manner, hit the above said scooter from backside. Due to the said impact, the rider of the scooter namely Iqlas Ahamed fell down on the road and the TATA tipper passed over him. Due to which he sustained fatal injuries. Immediately he was shifted to Indiana hospital, Mangalore. The doctors examined him and declared him dead due to fatal injuries sustained in the accident Post Mortem of deceased was conducted at Government Wenlock hospital, Mangalore. 5. Respondent No.1 - the owner remained absent. 6. Learned counsel Sri Prakash M.H for the appellants vehemently contended that the Tribunal has fastened the - 5 - HC-KAR NC: 2025:KHC:30668-DB MFA No. 4229 of 2017 liability on the owner of the vehicle though there is no valid and effective driving licence furnished by the driver of the tipper and the principles 'pay and recovery' can be applied in this case. Secondly, the Tribunal has not considered future prospects. Since the deceased was working as an Associate Professor in Fisheries College at Yekkur, prior to the accident and he was a Government Servant and drawing salary of Rs.99,415/- per month, 15% of future prospects to be added. Further, the Tribunal has awarded meager compensation under other conventional heads. Hence, he prays to allow the appeal. 7. Learned counsel Sri H.S.LINGARAJU for the Insurance Company vehemently contended that, the Tribunal considering the oral and documentary evidence on record and the fact that the driver of Tipper was not having a valid and effective driving licence, has rightly exonerated and fastened the liability on the owner of the tipper lorry but however has granted a fair and just - 6 - HC-KAR NC: 2025:KHC:30668-DB MFA No. 4229 of 2017 compensation under all other heads. Hence, he prays to dismiss the appeal. 8. We have perused the material available on record. 9. As the Insurance Company or the owner of lorry have not disputed the accident or the cause of death of the deceased, the points that would arise for our consideration in this appeal are: i. Whether the Tribunal has rightly fastened the liability on the owner of the tipper lorry? ii. Whether the quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement? 10. In the instant case, the Tribunal has observed that since the driver of the lorry did not possess a valid and effective driving licence as on the date of accident, the Tribunal has considered that the Insurance Company is not liable to pay any compensation. - 7 - HC-KAR NC: 2025:KHC:30668-DB MFA No. 4229 of 2017 11. The Tribunal has also observed that since the claimant has produced only the copy of driving licence and he has not furnished the original driving licence, it is considered that there was no valid and effective driving licence. 12. It is well settled law that the insurer is liable to pay the third party and recover the same from the insured even if there is breach of any condition recognized under Section 149(2) of the MV act, even if it is a fundamental breach (that is breach of condition which is the cause for the accident) and the insurer proves that the said breach in view of the mandate under Section 149(1) of the Act. [See:'NATIONAL INSURANCE CO. LTD. VS. LAXMI NARAIN DHUT' reported in (2007) 3 SCC 700, 'ORIENTAL INSURANCE CO.LTD. VS. BRIJ MOHAN AND OTHERS' reported in (2007) 7 SCC 56 AND 'SHAMANNA AND ANOTHER VS. DIVISIONAL MANAGER, 'ORIENTAL INSURANCE CO. LTD AND OTHERS.' reported in (2018) 9 SCC 650 and full bench - 8 - HC-KAR NC: 2025:KHC:30668-DB MFA No. 4229 of 2017 decision of this Court in NEW INDIA ASSURANCE CO. LTD. VS. YALLAVVA AND ANOTHER. reported in ILR 2020 KAR 2239. 13. In the instant case, the Tribunal has exonerated the insurer of the tipper lorry on the ground that the driver of the lorry did not possess a valid and effective driving licence. Hence, the insurer is not liable to pay the compensation in view of the breach of policy conditions by the insured. 14. The aforesaid finding with regard to fastening of the liability on the owner of the lorry bearing Reg.No.KA-19-B- 6202 is not sustainable in view of the decision of full bench of this Court in the case of New India Assurance Company Ltd. referred (supra). Therefore, respondent No.2 - being the valid insurer of the lorry is directed to pay the compensation amount to the claimants at first instance and recover the same from the owner of tipper lorry. - 9 - HC-KAR NC: 2025:KHC:30668-DB MFA No. 4229 of 2017 15. So far as the quantum of compensation is concerned, the Tribunal has not considered future prospects. The deceased was working as an Associate Professor in Fisheries Department as on the date of accident, he was aged about 53 years. Hence, 15% towards future prospects is to be added since he was a permanent job holder and his actual salary was Rs.99,415/-. 16. In order to substantiate the contention of the claimants, they also examined PW.3 - AAO. However, the Tribunal has not considered this aspect. It is appropriate to deduct 20% of the salary which comes around Rs.75,000/-. Hence, the income of the deceased is assessed at Rs.75,000/- per month. The multiplier applicable is '9'. Hence, the loss of dependency is calculated as follows: Rs.75,000 x 1/3 = Rs.25,000 Rs.75,000 - Rs.25,000 = Rs.50,000 Rs.50,000 x 12 x 9 = Rs.54,00,000/- * Paragraph No.16 is corrected Vide Court Order dated:24.09.2025. - 10 - HC-KAR NC: 2025:KHC:30668-DB MFA No. 4229 of 2017 17. The Tribunal has granted compensation of Rs.1,00,000/- towards "Loss of consortium". In fact, the claimant No.1 is wife, claimant No.2 is son and claimant No.3 is the mother of the deceased. Hence, in view of the law laid down in the case of Pranay Sethi referred (supra), the claimants are entitled for Rs.40,000/- each which comes to Rs.1,20,000/- towards loss of consortium. Rs.15,000/- towards loss of estate and Rs.15,000/- for funeral expenses. The tribunal awarded a sum of Rs.1,00,000/- towards loss of love and affection, which is not permissible in view of the ratio laid down in Magma's and Pranay Sethi's case. Hence we interfere with finding of Tribunal with regard to grant of compensation awarded under the head "loss and love and affection". - 11 - HC-KAR NC: 2025:KHC:30668-DB MFA No. 4229 of 2017 18. Thus, the claimants are entitled for the following compensation: Sl. No. Heads of Compensation Amount (in Rs.) 1. Loss of Consortium 1,20,000 2. Funeral and other incidental charges 15,000 3. Loss of dependency 54,00,000 4. Loss of estate 15,000 Total 55,50,000 Compensation awarded by the Tribunal 68,25,000 REDUCED COMPENSATION 12,75,000 19. In the result, we pass the following: O R D E R i. The appeal is allowe d-in-part. ii. The judgment and award passed by the Tribunal is modified to the extent stated hereinabove. The claimants are entitled for a total compensation Rs.55,50,000/- as against Rs.68,25,000/- awarded * Paragraph No.18 is corrected Vide Court Order dated:24.09.2025. - 12 - HC-KAR NC: 2025:KHC:30668-DB MFA No. 4229 of 2017 by the Tribunal with interest at the rate of 6% per annum the date of filing of the claim petition till the date of its realisation. iii. Respondent No.2-Insurance Company is directed to deposit the entire compensation amount together with interest within six weeks from the date of receipt of a copy of this judgment at first instance and recover the same from the owner of the tipper lorry. iv. Apportionment, disbursement and deposit of the enhanced compensation shall be made in terms of the award of the Tribunal. v. Draw modified award accordingly. vi. No order as to costs. In view of the disposal of the appeal, all pending interlocutory applications, if any, shall stand disposed off. - 13 - HC-KAR NC: 2025:KHC:30668-DB MFA No. 4229 of 2017 Registry is directed to send a copy of this judgment to the Tribunal along with its records, forthwith. Sd/- (D K SINGH) JUDGE Sd/- (VENKATESH NAIK T) JUDGE DHA List No.: 1 Sl No.: 54