- 1 - HC-KAR NC: 2026:KHC:18279-DB MFA No. 7141 of 2022 C/W MFA No. 4528 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF APRIL, 2026 PRESENT THE HON'BLE MR. JUSTICE D K SINGH AND THE HON'BLE MR. JUSTICE T.M.NADAF MISCELLANEOUS FIRST APPEAL NO. 7141 OF 2022 (MV-D) C/W MISCELLANEOUS FIRST APPEAL NO. 4528 OF 2022 (MV-D) IN MFA No. 7141/2022 BETWEEN: 1. THABASUM, W/O MOHAMMED FAZLULLA, AGED ABOUT 26 YEARS, 2. BI BI AYESHA, D/O MOHAMMED FAZLULLA, AGED ABOUT 06 YEARS, 3. SYED MOHIDDIN, S/O MOHAMMED FAZLULLA, AGED ABOUT 4.6 YEARS, APPELLANT NO. 2 AND 3 ARE MINORS REPRESENTED BY THEIR NEXT FRIEND MOTHER (APPELLANT NO.1) AS NATURAL GUARDIAN RESIDING/AT NO 16, 6TH MAIN ROAD,PADARAYANAPURA, GOVERNMENT ELECTRONIC FACTORY, BANGALORE SOUTH BANGALORE - 560 008. Digitally signed by REKHA R Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:18279-DB MFA No. 7141 of 2022 C/W MFA No. 4528 of 2022 4. ZAREENA, W/O SYED MAHABOOB, AGED ABOUT 47 YEARS, R/AT NO 136,KAILAS NAGAR, DODDABELE, KENGERI, BANGALORE SOUTH BANGALORE - 560 008. APPELLANTS NO. 1 TO 4 PRESENTLY R/AT P.H. COLONY, 10TH CROSS, TUMAKURU TALUK TUMAKURU DISTICT - 577 101. …APPELLANTS (BY SRI. M.B. RYAKHA, ADVOCATE) AND: 1. B.Z. SHAKEEL AHMED KHAN, S/O B ZIAULLA KHAN, AGED ABOUT 43 YEARS, R/AT 362/2 TSP ROAD, KALASIPALAYAM, BENGALURU -560 002. 2. THE MANAGER, UNITED INDIA INSURACNE CO. LTD, 1/127A, TRUNK ROAD, POONAMALLEE, CHENNAI, TAMILNADU - 600 056. BRANCH OFFICE: THE MANAGER, UNITED INDIA INSURACNE CO.LTD, JAYADEVA COMPLEX, B.H. ROAD, TUMKURU CITY. …RESPONDENTS (BY SMT. MANJULA N. TEJASWI, ADVOCATE FOR R2, VIDE ORDER DATED 27.07.2023 NOTICE TO R1 IS DISPENSED WITH) - 3 - HC-KAR NC: 2026:KHC:18279-DB MFA No. 7141 of 2022 C/W MFA No. 4528 of 2022 THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED:12.11.2021 PASSED IN MVC NO.1393/2019 ON THE FILE OF THE VII ADDITIONAL DISTRICT JUDGE AND MEMBER, MACT, TUMAKURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. IN MFA NO. 4528/2022 BETWEEN: 1. THE MANAGER, UNITED INDIA INSURANCE CO.LTD., 1/127 A TRUNK ROAD, POONAMALLEE, CHENNAI - 600 056. TAMILNADU. BRANCH OFFICE: THE MANAGER, UNITED INDIA INSURANCE CO LTD JAYADEVA COMPLEX, B.H. ROAD, TUMKUR CITY. REPRESENTED BY THE REGIONAL MANAGER, UNITED INDIA INSURANCE CO.LTD., 6TH FLOOR, KRISHI BHAVAN, HUDSON CIRCLE, NRUPATHUNGA ROAD, BENGALURU - 560 001. ...APPELLANT (BY SRI. MANJULA N. TEJASWI, ADVOCATE) AND: 1. SMT. THABASUM, W/O MOHAMMED FAZLULLA, AGED ABOUT 26 YEARS, - 4 - HC-KAR NC: 2026:KHC:18279-DB MFA No. 7141 of 2022 C/W MFA No. 4528 of 2022 2. BIBI AYESHA, D/O MOHAMMED FAZLULLA, AGED ABOUT 6 YEARS, 3. SYED MOHIDDIN, D/O. MOHAMMED FAZLULLA, AGED ABOUT 4.6 YEARS, RESPONDENT NO.2 AND 3 REPRESENTED BY THEIR NEXT FRIEND AND MOTHER, RESPONDENT NO.1 4. ZAREENA, W/O SYED MAHABOOB, AGED ABOUT 47 YEARS, R/O NO.136, KAILAS NAGAR, DODDABELE, KENGERI, BANGALORE SOUTH BANGALORE - 560 060. 5. B.Z. SHAKEEL AHMED, S/O B ZAIULLA KHAN, AGED ABOUT 43 YEARS, R/O 326/2,TSP ROAD, KALASIPALYAM, BANGALORE - 560 002. ...RESPONDENTS (BY SRI.M.B. RYAKHA, ADVOCATE FOR R1 TO R4, SRI. BHANU H.M. ADVOCATE FOR R5) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED:12.11.2021 PASSED IN MVC NO.1393/2019 ON THE FILE OF THE VII ADDITIONAL DISTRICT JUDGE, MEMBER AND MACT, TUMAKURU, AWARDING COMPENSATION OF RS.33,65,200/- - 5 - HC-KAR NC: 2026:KHC:18279-DB MFA No. 7141 of 2022 C/W MFA No. 4528 of 2022 WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE OF PETITION TILL REALIZATION. THESE APPEALS ARE COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE D K SINGH and HON'BLE MR. JUSTICE T.M.NADAF ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE T.M.NADAF) These two appeals being MFA No.4528/2022 and MFA No.7141/2022 are by the Insurer and the Claimants calling in question the Judgment and Award dated 12.11.2021 in M.V.C No.1393/2019 passed by the VII Addl. District and Sessions Judge and Motor Accident Claims Tribunal, Tumakuru (for short, ‘the Tribunal’), by the Insurer on the ground of liability and by the claimants seeking enhancement. 2. The parties are referred to as per their rankings before the Tribunal. - 6 - HC-KAR NC: 2026:KHC:18279-DB MFA No. 7141 of 2022 C/W MFA No. 4528 of 2022 3. The brief facts leading to filing of these two appeals are as under: In an accident occurred on 03.11.2019 at 06:30 am., deceased Mohammed Fazlulla traveling in the bus as Cleaner cum Conductor along with others, suffered severe injuries resulting in death, due to the accident caused by the rash and actionable negligence of the driver of the bus bearing Registration No.KA51-C-8049 (National Sleeper Coach Bus). The claimants for the death of Mohammed Fazlulla, filed a Claim Petition seeking compensation against respondent No.1 Insured and respondent No.2 Insurer. 4. Upon service of notice, both respondents Insured and Insurer appeared before the Tribunal through their respective counsel and filed statement of objection. 5. Respondent No.1 - Insured in the written statement, apart from denying the negligence on the part of the driver of the bus, ultimately pleaded that the bus - 7 - HC-KAR NC: 2026:KHC:18279-DB MFA No. 7141 of 2022 C/W MFA No. 4528 of 2022 was duly insured with respondent No.2 and hence, the liability if any is on the Insurer as he has to indemnify the Insurer. 6. Respondent No.2 - Insurer denied the Claim Petition averments and the contentions of rash and negligent driving on the part of the driver of the bus contending that the Lorry which was moving ahead stopped suddenly in the middle of the road, as a result of which the bus driver could not avoid the collision and therefore, the bus hit the hind side of the lorry. However, there is no denial with respect to valid and effective policy as on the date of accident. 7. After completion of pleadings, the Tribunal framed Issues on the aspect of negligence and entitlement of compensation and answered both the issues in favor of the claimants. 8. To substantiate their claim, claimant No.1 examined herself as PW.1 and produced 15 documents, - 8 - HC-KAR NC: 2026:KHC:18279-DB MFA No. 7141 of 2022 C/W MFA No. 4528 of 2022 which were marked as Ex.P1 to P15. On the other hand, respondent No.2 - Insurer examined its officer as RW.1 and produced authorization letter which was marked as Ex.R1. Apart from this, no other documents were furnished on behalf of respondent No.2 – Insurer. 9. Upon consideration and appreciation of entire facts and evidence, the Tribunal awarded compensation of Rs.33,65,200/- with interest @ 6% per annum and fastened the entire liability on respondent No.2 – Insurer. It is this Judgment and Award that is challenged by the Insurer as well as Claimants in these two appeals. 10. Heard, Smt.Manjula Tejaswi., learned counsel appearing for the Insurer in both the appeals, Sri.M.B.Ryakha., learned counsel appearing for the claimants in both the appeals and Sri.Bhanu.H.M., learned counsel for respondent No.5 in MFA No.4528/2022. Notice to respondent No.1 in MFA No.7141/2022 is dispensed with vide order dated 27.07.2023. - 9 - HC-KAR NC: 2026:KHC:18279-DB MFA No. 7141 of 2022 C/W MFA No. 4528 of 2022 11. Smt.Tejaswi., with all vehemence submits that the Insurer has filed an application under Order XLI Rule 27 of CPC for production of copy of Insurance Policy to contend that the deceased was not covered under the Policy and as such, it is not liable to pay the compensation. She further submits that there is no license as per Section 29 of the Motor Vehicles Act, 1988, produced by claimants to contend that the deceased was working as a Conductor in the Bus, as such the deceased cannot be considered as a Cleaner cum Conductor and even if he is considered as Cleaner cum Conductor, in the absence of coverage under the Insurance Policy, the Insurer cannot be made liable to pay the compensation. In the application filed for production of documents under Order XLI Rule 27 of CPC, supported by an affidavit sworn by the Officer of the Insurer, it is stated that though evidence was led on behalf of the Insurer, due to oversight the certified copy of the Insurance Policy was not got marked by them on their behalf and the Tribunal assigning - 10 - HC-KAR NC: 2026:KHC:18279-DB MFA No. 7141 of 2022 C/W MFA No. 4528 of 2022 the same reason, fastened the entire liability on the Insurer and sought to allow the application. Learned counsel further submits that in view of the Insurance Policy now having been placed under the application, the liability fastened on the Insurer be set-aside and the Insurer be exonerated from paying compensation and sought to allow the appeal. In support of her arguments, learned counsel placed reliance on the Judgment passed by the learned Single Judge of this Court in MFA No.1186/2001 disposed of on 13.10.2006 and MFA No.123/2004 disposed of on 11.08.2005, however both are arising out of compensation awarded under the provisions of Workman Compensation Act. 12. In contrast, Sri.M.B.Ryakha., with all vehemence submits that the Drivers are statutorily covered and the deceased being the Cleaner cum Conductor is also covered under the Policy. He submits that mere non-holding of license may not be deemed that the deceased was not discharging the work as a Cleaner - 11 - HC-KAR NC: 2026:KHC:18279-DB MFA No. 7141 of 2022 C/W MFA No. 4528 of 2022 cum Conductor. He further submits that the bus involved is a long route bus having permit and not a stage carriage, there is no fare fixed for traveling a short distance, which requires the work of Conductor for issuance of tickets to the persons who board the bus or alighting the bus. In other words, picking up and setting down the passengers at various stages along a scheduled route. Learned counsel submits that both the Judgments relied by the Insurer are arising out of the claim petition filed under the Workman Compensation Act and not under the Motor Vehicles Act, where the employee has to establish the jural relationship which is not rigorously applicable under the Motor Vehicle claims. He further submits that the Tribunal has failed to award 10% escalation on the compensation awarded under the Conventional Heads and sought to allow the appeal filed by claimants and dismiss the appeal filed by the Insurer. 13. Having considered the rival submissions, we have perused the entire appeal paper in both the appeals - 12 - HC-KAR NC: 2026:KHC:18279-DB MFA No. 7141 of 2022 C/W MFA No. 4528 of 2022 and the Trial Court record. The following points would arise for our consideration: 1. Whether the application filed under Order XLI Rule 27 of CPC in I.A.No.2/2022 deserves by the allowed? 2. Whether the claimants have made out any case to enhance the compensation? 14. Our answer to the above points is as under: Point No.1: In the Negative. Point No.2: Partly in the Affirmative, for the following: REASONS 15. It is trite law that the claim under Order XLI Rule 27 of CPC is not a matter of right or Rule, but it applies as an exception, as the opening sentence of Order XLI Rule 27 starts with ‘the parties to an appeal shall not be entitled to produce additional evidence whether oral or documentary in the appellate Court, but subject to the exceptions provided thereunder’. The claim to produce - 13 - HC-KAR NC: 2026:KHC:18279-DB MFA No. 7141 of 2022 C/W MFA No. 4528 of 2022 additional evidence must satisfy the exceptions carved in the said sub-rule. It is not the case of the Insurer that the documents have been produced but the same was not allowed to be produced by the Tribunal. It is also not their case that the documents now sought to be produced were not within their knowledge even after exercise of all due diligence or could not after exercise of due diligence be produced by it at the time when the decree appealed against was passed. To apply Clause (b), the first two clauses and sub-clause, Clauses (a) and (aa) are required to be satisfied. The only reason stated by the Insurer is that due to oversight the document could not be produced before the Tribunal. Ignorance of a party or his/her counsel is alien to the word ‘Due Diligence’. The word ‘Ignorance’ is destructive and just opposite to 'due diligence'. The due diligence means and includes all the exercise which an ordinary prudent person would exercise while producing document to substantiate his ground for the relief sought. The vague, callous and casual - 14 - HC-KAR NC: 2026:KHC:18279-DB MFA No. 7141 of 2022 C/W MFA No. 4528 of 2022 explanation offered cannot bring the Insurer within the exceptions carved in the sub-rule. 16. Due diligence refers to reasonable, persistent and careful efforts a party must have made to discover and produce evidence during the trial stage. If a party was aware of the evidence during the trial, but failed to produce it, is barred from claiming any relief under the rule as due diligence is distinct and differ from ignorance. In other words, despite the knowledge, ignorance by a party or his advocate cannot be a matter of due diligence. The word due diligence thus determines the scope of a party's constructive knowledge of the claim and the exercise of which is necessary before claiming the relief. The ignorance thus destructive to the word due diligence and debars litigant to take shelter under the same. 17. As a General Rule, the Appellate Court should not admit additional evidence for the purpose of disposal of an appeal and the parties are not entitled to produce - 15 - HC-KAR NC: 2026:KHC:18279-DB MFA No. 7141 of 2022 C/W MFA No. 4528 of 2022 additional evidence, whether oral or documentary in the Appellate Court as a matter of right. The Code, however empowers the Court under the Rule to take additional evidence but subject to the riders stated therein. Though the power envisaged is discretionary but must be exercised on sound judicial principles and in the interest of justice and not in a mechanical routine manner. Furthermore, in the absence of foundational facts, the evidence now sought to be laid cannot be accepted and considered. In view of the same, the application is not sustainable in law and liable to be rejected, accordingly I.A.No.2/2022 is rejected. 18. It is not seriously denied by the Insurer that the deceased was not working as Cleaner cum Conductor. The rigor of Section 29 has no application in the facts of this case, as the case on the hand is arising under the provisions of Motor Vehicles Act. Even otherwise, in all probability, the absence of Conductor License under Section 29 of the Act perhaps may warrant penal action - 16 - HC-KAR NC: 2026:KHC:18279-DB MFA No. 7141 of 2022 C/W MFA No. 4528 of 2022 under Section 177 of the Act against the owner or the person. Since the validity of the Insurance Policy is not denied, so also the avocation of Cleaner and Conductor, we do not find any reason to interfere with the reasoned order passed by the Tribunal while fastening liability on the Insurer. Accordingly, the appeal by Insurer is dismissed. 19. So far as claim of the claimants is concerned, the Tribunal has appropriately awarded compensation within the expression ‘just compensation’. However, in view of the settled position of law as per the dicta laid down by the Hon’ble Apex Court in NATIONAL INSURANCE COMPANY LIMITED VS. PRANAY SETHI1, claimants are entitled for 10% escalation on the compensation awarded under the Conventional Heads from 2017. The accident in the case on hand occurred in 2019, hence the claimants are entitled for 20% escalation on the compensation awarded under the Conventional 1 (2017) 16 SCC 680 - 17 - HC-KAR NC: 2026:KHC:18279-DB MFA No. 7141 of 2022 C/W MFA No. 4528 of 2022 Heads, which would come to Rs.38,000/- (160,000 + 30,000 X 20% = 38,000). Accordingly, the appeal by the claimants succeeds in part. 20. For the foregoing reasons, we proceed to pass the following: ORDER i. The appeal filed by the Insurer in MFA No.4528/2022 is dismissed. The amount in deposit shall be transmitted to the concerned Tribunal forthwith for disbursement. ii. The appeal filed by the Claimants in MFA No.7141/2022 is allowed in part, awarding a sum of Rs.38,000/- along with 6% interest from the date of petition till realization, over and above the compensation awarded by the Tribunal. iii. The Insurer shall deposit the balance compensation awarded by the Tribunal as - 18 - HC-KAR NC: 2026:KHC:18279-DB MFA No. 7141 of 2022 C/W MFA No. 4528 of 2022 well as the compensation of Rs.38,000/- awarded in this appeal with interest supra, within six weeks from the date of receipt of certified copy of this order. iv. Apportionment and disbursement is as per the order passed by the Tribunal. v. No order as to costs. vi. The Trial Court record secured if any, shall be transmitted to the concerned Tribunal forthwith. Sd/- (D K SINGH) JUDGE Sd/- (T.M.NADAF) JUDGE TKN List No.: 1 Sl No.: 35 ct-vn