- 1 - HC-KAR NC: 2025:KHC-D:9153 MFA No. 100263 of 2015 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 24TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.100263 OF 2015 (MV) BETWEEN: THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE CO. LTD., JUBLI CIRCLE, P.B. ROAD, DHARWAD, REPRESENTED THROUGH ITS REGIONAL OFFICE, 2ND FLOOR, SRINATH COMPLEX, NEW COTTON MARKET, HUBBALLI, REPRESENTED BY ITS ASSISTANT MANAGER. … APPELLANT (BY SRI NAGANGOUDA R. KUPPELUR, ADVOCATE) AND: 1. SMT. GANGAVVA W/O ULAKAPPA GARJARAJAKKANAVAR @ GARJAPPANAVAR, AGE: 38 YEARS, OCC: HOUSEHOLD WORK, R/O: LAKKUNDI, TQ: AND DIST: GADAG. 2. ULAKAPPA S/O YELLAPPA GARJARAJAKKANAVAR @ GARJAPPANAVAR, AGE: 47 YEARS, OCC: AGRICULTURE, R/O: LAKKUNDI, TQ: AND DIST: GADAG. 3. SHRI MAHESH S/O SIDDAYYA SALIMATH, AGE: 36 YEARS, OCC: BUSINESS, R/O: SHIVAPPAYANMATH YALI PATH, NEAR AKKIHONDA, HUBBALLI (OWNER OF THE TRAX BEARING NO.KA-25/C-4527). 4. SHRI SHIVANAND @ SHIVAPPA S/O MALLAPPA SWADI, AGE: 24 YEARS, OCC: DRIVER, R/O: BYAHATTI MEDAR ONI, HUBBALLI, MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Date: 2025.08.14 12:07:06 +0530 - 2 - HC-KAR NC: 2025:KHC-D:9153 MFA No. 100263 of 2015 (DRIVER OF THE TRAX BEARING NO.KA-25/C-4527). … RESPONDENTS (BY SRI CHANDRASHEKHAR M. HOSAMANI, ADVOCATE FOR R1 AND R2; R3 AND R4 – NOTICE SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 09.12.2014, PASSED IN MVC NO.5/2013, ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE AT GADAG, IN THE INTEREST OF JUSTICE. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT IS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) This appeal is filed by the insurance company challenging the judgment and award dated 09.12.2014, passed by the Additional District and Sessions Judge, Gadag, in MVC No.5/2013, questioning entire liability fastened on it to pay the compensation. 2. Heard the arguments of learned counsels and perused the material placed before the Court. 3. It is submitted that in this case the driver of the offending vehicle did not have driving licence. It is specific contention of the learned counsel for appellant insurance - 3 - HC-KAR NC: 2025:KHC-D:9153 MFA No. 100263 of 2015 company that the driver of the offending vehicle did not hold driving licence. Then it is burden on the claimant or the owner of the vehicle to prove that the driver was holding driving licence. But there is no proof that driver was holding driving licence. The deceased was travelling in a passenger carrying tempo by sitting inside the vehicle. The insurance policy is a comprehensive policy. Therefore risk of the claimant is covered. Since the driver was not holding driving licence, there is breach of policy condition. Hence, the insurance company has proved its defence successfully. Therefore, the insurance company is liable to be exonerated from paying the compensation. 4. The insurance company is able to establish the defence as per sub-section (2) of section 149 of M.V.Act. 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 - 4 - HC-KAR NC: 2025:KHC-D:9153 MFA No. 100263 of 2015 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 claimants 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. 5. Therefore, the insurance company of the offending vehicle is exonerated from paying the compensation. However the insurance company shall pay - 5 - HC-KAR NC: 2025:KHC-D:9153 MFA No. 100263 of 2015 compensation to the claimants at the first instance and then recover it from the owner of the motorcycle. 6. In the result, I proceed to pass the following: ORDER i) The appeal is allowed in part. ii) The judgment and award dated 09.12.2014, passed by the Additional District and Sessions Judge, Gadag, in MVC No.5/2013, stands modified holding that the owner of the vehicle shall pay compensation to the claimants. iii) The liability fastened on the insurance company to pay compensation is set aside. iv) The insurance company of the offending vehicle shall 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 the vehicle. - 6 - HC-KAR NC: 2025:KHC-D:9153 MFA No. 100263 of 2015 v) 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. vi) Send back the trial Court records along with a copy of this judgment and award to the tribunal. vii) No order as to costs. viii) Draw award accordingly. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE MRK CT:BCK LIST NO.: 1 SL NO.: 46