Partly allowed

Smt. Anandi v. Sri. P. S. Chandra Naik

Karnataka HC3 Aug 2022MFA/4875/2017

Case brief

AI extract

What is this about?

The High Court dismissed the owner's appeal challenging vehicle classification and insurer liability. It allowed the claimants' appeal in part, enhancing compensation to Rs. 12,62,400. The Court ordered the insurer to pay the claimants directly under pay-and-recovery principles before recovering from the owner.

What did the court decide?

Enhanced compensation of Rs. 2,30,400 awarded to claimants; insurer directed to pay claimants first and recover from owner.

Smt. Anandi Vs Sri. P. S. Chandra Naik — Motor Accident Claims | Karnataka HC (2022)

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1 MFA NO.4875/2017 C/W MFA.NO.5262/2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 03^RD DAY OF AUGUST, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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M.F.A.NO.4875/2017 C/W M.F.A.NO.5262/2017 (MV-D)

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IN MFA NO.4875/2017

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BETWEEN:

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SMT. ANANDI, W/O LATE MURUGAVEL, AGE ABOUT 51 YEARS, R/AT BHADRAVATHI BALAJI OIL, PLAMS LTD., KAREHALLI, B.H.ROAD, BHADRAVATHI, SHIVAMOGGA DISTRICT, PIN-577301.

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… APPELLANT

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(BY SRI.VIJAY KUMAR K., ADVOCATE)

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AND :

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SRI. P.S.CHANDRA NAIK, S/O LATE SAKRYA NAIK, AGED ABOUT 63 YEARS,

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SMT. PAPEEBAI, W/O CHANDRA NAIK P.S., AGED ABOUT 53 YEARS,

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BOTH ARE RESIDING AT PERAMENAHALLI VILLAGE, BELENAHALLI POST,

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KASABA HOBLI, TARIKERE TALUK, CHIKKAMAGALURU DISTRICT, PIN-577228.

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THE NEW INDIA ASSURANCE CO. LTD., NEAR OLD BRIDGE, BHADRAVATHI, SHIVAMOGGA DISTRICT, PIN-577201.

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... RESPONDENTS

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(BY SRI.N.GOPALAKRISHNA, ADVOCATE FOR R1 & R2 SRI. ASHOK N. PATIL, ADVOCATE FOR R3)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:04.01.2017 PASSED IN MVC NO.348/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND PRINCIPAL JMFC, MACT AT TARIKERE, AWARDING COMEPNSATION OF RS.10,32,000/- WITH INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT AND ETC.,

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IN MFA NO.5262/2017

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BETWEEN:

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SRI. P.S. CHANDRA NAIK, S/O LATE SAKRYA NAIK, AGED ABOUT 63 YEARS,

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SMT. PAPEEBAI, W/O CHANDRA NAIK P.S., AGED ABOUT 53 YEARS,

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BOTH ARE RESIDING AT PERAMENAHALLI VILLAGE, BELENAHALLI POST, KASABA HOBLI, TARIKERE TALUK, CHIKKAMAGALURU DISTRICT.

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… APPELLANTS

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(BY SRI.GOPALAKRISHNA H., ADVOCATE)

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AND:

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SRI ANANDI, W/O LATE MURUGAVEL, AGED ABOUT 51 YEARS, BHADRAVATHI BALAJI OIL, PALMS LTD., KAREHALLI, B.H.ROAD, BHADRAVATHI, SHIVAMOGGA DISTRICT, PIN-577301.

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THE NEW INDIA ASSURANCE, COMPANY LTD., NEAR OLD BRIDGE, BHADRAVATHI, SHIVAMOGGA DISTRICT, PIN-5773101. REP:BY ITS MANAGERE

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…RESPONDENTS

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(BY SRI. K. VIJAY KUMAR, ADVOCATE FOR R1, SRI. ASHOK M.PATIL, ADVOCATE FOR R2)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV

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ACT AGAINST THE JUDGMENT AND AWARD DATED:04.01.2017 PASSED IN MVC NO.348/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND PRINCIPAL JMFC, MEMBER, ADDITIONAL MACT, TARIKERE, PARTLY

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ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.,

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THESE M.F.As. COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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MFA.No.4875/2017 is filed by the owner of the Canter Lorry No.KA:14/A-2588 challenging the judgment and award dated 04.01.2017 passed in MVC No.348/2014 by the Senior Civil Judge and Additional MACT, Tarikere, insofar as fixing liability on the owner and also stating that there is contributory negligence by the deceased himself.

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MFA No.5262/2017 is filed by the claimants challenging the above stated judgment and award for seeking enhancement of compensation.

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2. Brief facts of the case are as under:

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On 16.07.2013 at about 10.30 pm., the deceased being the owner –cum-driver of Tata Ace

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Luggage Auto bearing No.KA:18/B-1071 was driving the vehicle slowly and cautiously on the left side of the road and was moving to Thimmaiah Market, Bhadravathi along with one Murthappa S/o Ramappa so as to sell tomatoes. At that moment near Ujjanipura circule, the canter lorry bearing No.KA:14/A-2588 driven by its driver in a rash and negligent manner endangering to human life came from opposite direction in excessive speed to the wrong side of the road and dashed to the Tata Ace luggage auto. Due to which the vehicle of deceased got damaged and driver of the luggage auto suffered grievous injuries all over the body and succumbed to the injuries on the spot. The said accident occurred due to rash and negligent driving of canter lorry bearing No.KA:14/A-2588 by its driver. The case was registered against him in Paper Town P.S.Crime No.121/2013.

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REGARDING DRIVING LICENCE:

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Learned counsel appearing for the

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owner/appellant submitted that, in the present case, the driver of the Canter Lorry No.KA:14/A-2588 was holding the driving licence to drive light motor vehicle and also the canter lorry in the present case is also light goods vehicle. Therefore, the driver was competent to drive light goods vehicle. Hence, there is no violation of conditions of policy. Therefore, the Insurance Company is liable to indemnify the owner, but the Tribunal has wrongly held that the Canter Lorry is a medium goods vehicle and fastening of liability on the owner is not correct. Therefore, prays for modification of the said findings.

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Further submitted that the unladen weight

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of the Canter Lorry is 3910 kg and it is less than 7500 kg. Therefore, it is coming within the category of light motor vehicle/light goods vehicle. Hence, the driver

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was holding valid and effective driving licence to drive the Canter Lorry. Therefore, the insurer is liable to indemnify the owner. Therefore, prays for setting aside the observation made by the Tribunal holding that the owner is liable to pay the compensation, but not the Insurance Company.

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Further the learned counsel for the owner submitted that the deceased has also contributed his negligence towards the accident as the accident is head on collision between the Canter Lorry and the Tata Ace Luggage Auto. Therefore, it is submitted that the deceased who was driving the Tata Ace Luggage Auto has also attributed 50% of contributory negligence towards the accident. Therefore, prays for holding contributory negligence on the part of the deceased also. Further submitted that the amount of compensation awarded by the Tribunal is on the higher side, which needs to be modified. Therefore, prays for modification of the quantum of

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compensation. Hence, it is submitted that the appeal filed by the owner is liable to be allowed.

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On the other hand, learned counsel for the respondent-Insurance Company submitted that, in the present case, the offending vehicle Canter Lorry No.KA:14/A-2588 is the medium goods vehicle, but the driver of the Canter Lorry was holding driving licence of light motor vehicle. Therefore, it cannot be said that the driver was competent to drive the Canter Lorry as he was holding the driving licence of light motor vehicle. Therefore, submitted that as per Section 149(2) of the Motor Vehicles Act, 1988 (for short the “MV Act”), the Insurance Company has successfully taken its defence and established to avoid liability by taking the defence as per Section 170 of MV Act. Therefore, the Insurance Company is not liable to pay the compensation and that is correctly held by the Tribunal by fastening the liability on the owner of the lorry. Further submitted that with

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reference to Ex.R.2 – “B” Register Extract of the Canter Lorry No.KA:14/A-2588, the class of vehicle is shown as medium goods vehicle by the RTO authorities.

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Further it is also stated that the registered

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laden weight is 11950 kg. Hence, it is more than 7500 kg. Therefore, definitely the Canter Lorry is not coming within the definition of Section 2(21) of the MV Act, but the Canter Lorry is coming with the definition of Section 2(23) of the MV Act as per Ex.R.2- “B” Register Extract of the Canter lorry. Therefore, as per Ex.R5 and R6-driving licence, it is proved that the driver of the canter lorry was holding driving licence to drive the light motor vehicle only. Therefore, breach of conditions of insurance policy is proved. Hence, the Tribunal is justified in holding that the liability is completely fastened on the owner of

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10 MFA NO.4875/2017 C/W

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MFA.NO.5262/2017

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Canter Lorry No.KA:14/A-2588. Therefore, prays for dismissal of the appeal filed by the claimants.

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Learned counsel for the claimants submitted that the quantum of compensation awarded is on the lesser side. Therefore, prays for enhancement of the compensation.

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Further learned counsel for claimant submitted that when the Insurance Company is successful in taking its defence and establishing the said defence that the driver of the Canter Lorry was not holding the driving licence, but as per Section 149(2) of the MV Act and also as per the principles of law laid down by the Hon’ble Apex Court in the case of

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PAPPU AND OTHERS -V- VINOD KUMAR LAMBA

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AND ANOTHER reported in (2018) 3 SCC 208 and full bench decision of this Court in the case of New India Assurance Company Limited vs. Yellavva And Another reported in 2020 ACJ

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2560 (HCK), an order of pay and recovery can be made, directing the Insurance Company to satisfy the claim amount at the first instance to the claimants as the claimants are third party and then recover it from the owner of Canter Lorry No.KA:14/A-2588. Therefore, prays for application of principles of pay and recovery.

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Upon considering the contention urged by the learned counsel for the appellant/owner, the documentary evidences placed by both sides are to be appreciated. Undisputedly, in the present case, the accident is between Tata Ace Luggage Auto No.KA:18/B-1071 and Canter Lorry No.KA:14/A-2588. It is the contention of the Insurance Company that the Canter Lorry is not a light motor vehicle, but it is a medium good vehicle. But the said submission is disputed by the learned counsel for the owner. In this regard, it is worthwhile to mention as to what are the

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definition of Light Motor Vehicle, Medium Goods Vehicle and Heavy Goods Vehicle.

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Section 2(21) of the MV Act defines “Light

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Motor Vehicle” as follows:

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“Light Motor Vehicle” means a transport vehicle or omnibus the gross vehicle weight of either ofwhich or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 1[7500] kilograms”

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Section 2(23) of the MV Act defines “Medium

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Goods Vehicle” as follows:

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“Medium Goods Vehicle” means any goods carriage other than a light motor vehicle or a heavy goods vehicle;”

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Section 2(16) of the MV Act defines “Heavy

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Goods Vehicle” as follows:

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“Heavy Goods Vehicle” means any goods carriage the gross vehicle weight of which, or a tractor or a road-roller the unladen weight of either of which, exceeds 12,000 kilograms;

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It is the contention of the owner that the

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driver of the canter lorry was holding valid and effective driving licence to drive the canter lorry. In

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this regard, evidence produced by the Insurance Company are to be ascertained. Ex.R.2 is the “B” Register Extract. Upon perusal of Ex.R.2-“B” Register Extract pertaining to the Canter Lorry No.KA:14/A2588, where it is mentioned by the RTO authority that the class of vehicle is shown as medium goods vehicle and its unladen weight is 3910 kg and the registered laden weight is 11950 kg. Undisputedly, the above said canter Lorry is a transport vehicle, which means a goods carriage vehicle. Therefore, if transport vehicle is to be considered as light motor vehicle, then the gross vehicle weight shall not exceed 7500 kg. In the definition under Section 2(21) of the MV Act, if the vehicle is a transport vehicle or omnibus and it is said that it can be a light motor vehicle, then its “gross vehicle weight” shall not exceed 7500 kg, but not the unladen weight. The category of unladen weight is applicable to a motor car or tractor or road roller, then its unladen weight shall not exceed 7500 kg, then only

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these three types of vehicles are to be considered as light motor vehicles. But so far as transport vehicle or omnibus is concerned, if it is said to be a light motor vehicle, then the category is to be determined as to what is the “gross vehicle weight” and if the “gross vehicle weight” does not exceed 7500 kg, then it can be considered as light motor vehicle. The transport vehicle or omnibus shall be considered as light motor vehicle only when gross vehicle weight is less than 7500 kg. Therefore, admittedly, in the present case, canter lorry is a transport vehicle. Therefore, in the present case, whether the canter lorry is a light motor vehicle or medium goods vehicle, the criteria is to be considered based on the “gross vehicle weight”. The gross vehicle weight and registered laden weight are one and the same. In Ex.R.2 the registered laden weight is mentioned as 11950 kg. The unladen weight is mentioned as 3910 kg, but the unladen weight is not a deciding factor to classify the vehicle in

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case of transport vehicle or omnibus. But in the case of transport vehicle or omnibus, the criteria is “gross vehicle weight” or “gross laden weight”. As per Ex.R2 – “B” Register Extract of the canter lorry, the registered laden weight, which means the gross vehicle weight is 11950 kg. Therefore, as per Section 2(21) of the MV Act, if the gross vehicle weight of the canter lorry exceeds 7500 kg, then the canter lorry cannot be termed as light motor vehicle.

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Then coming to the definition of “Medium Goods Vehicle” and “Heavy Goods Vehicle”, as per Section 2(23) and Section 2(16) of the MV Act respectively. “Medium Goods Vehicle” is any goods carriage other than a Light Motor Vehicle or a Heavy Goods Vehicle. To say a vehicle is heavy goods vehicle the gross vehicle weight exceeds 12000 kg, then it is a Heavy Goods Vehicle. In the present case, the registered laden weight that means the permitted gross vehicle weight is 11950 kg, it is less than 12000

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kg. Therefore, it is coming in between the category of light motor vehicle and heavy goods vehicle. Therefore, as per Section 2(23) of the MV Act, Canter Lorry No.KA:14/A-2588 is proved to be medium good vehicle as per Section 2(23) of the Act.

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Exs.R.5 and R.6 are the driving licence of the canter lorry produced by the Insurance Company, which proves the fact that the driver - Nagraja who was driving the canter lorry was holding the driving licence or authorized to drive the vehicle of the class light motor vehicle. There is no authorization in Exs.R.5 and R.6 that the driver was also authorized to drive medium goods vehicle. Therefore, it is proved that as on the date of the accident, the driver of the canter lorry was holding driving licence only to drive the light motor vehicle, but not having driving licence to drive medium goods vehicle.

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Therefore, after appreciating the evidences

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on record and taking into consideration the rival submissions made by the owner and Insurance Company, it is proved that the Canter Lorry No.KA:14/A-2588 is a medium goods vehicle and its driver was having driving licence to drive the light motor vehicle only, but not medium goods vehicle. Therefore, under these circumstances, it cannot be said that the driver of the canter lorry was holding valid and effective driving licence. The appellant/owner has authorized person to drive the medium goods vehicle, but the driver was holding light motor vehicle licence only. In this regard, the Insurance Company was successful in taking its defence and establishing its defence as applicable under Section 149(2) of the MV Act. Therefore, the Insurance Company is not liable to pay the compensation and the appellant/owner alone is liable to pay the compensation and the findings given by the

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Tribunal in this regard is correct, proper and justified.

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Learned counsel appearing for the

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appellant/owner of the Canter Lorry No.KA:14/A-2588 placed reliance on the following judgments:

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(i) Shri Mahantesh Vs. Smt. Netharavati and Others (MFA.NO.100096/2019 decided on

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25.02.2022)

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(ii) Mohammed Salar and Others Vs. Syed

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Ibrahim and Others reported in ILR 2005 KAR 2388

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Learned counsel appearing for the Insurance Company placed reliance on the judgment of the Hon’ble Apex Court in the case of Mukund Dewangan Vs. Oriental Insurance Company

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Limited reported in (2017) 14 SCC 663

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However, the claimants are third parties in the present case. Therefore, in view of the discussions made above, even though, the Insurance Company

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absolutely is not liable to indemnify the owner for the reasons above discussed, but it is incumbent on the Insurance Company as per Sub-sections (1), (4) and (7) of Section 149 of MV Act as the principles of law laid down by the Hon’ble Apex Court in Pappu’s case and Yellavva’s case (stated supra), the principles of pay and recovery is applicable. Accordingly, the Insurance Company shall satisfy the claim to the claimants as the claimants are third parties at the first instance and then recover it from the owner of the Canter Lorry No.KA:14/A-2588. The judgments relied on by the appellant/owner in cases of Mohammed

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Salar and Mahantesh (stated supra) are squarely applicable to the case on hand. Here, it is discussed regarding classification of vehicle as light motor vehicle and heavy goods vehicle. There is interpretation made with reference to Sub-sections (16), (21) and (23) of Section 2 of the MV Act. In Mohammed Salar’s case (stated supra), whether

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the offending vehicle is a light motor vehicle or a heavy goods vehicle, it is discussed in the above said case. Therefore, this citation is not beneficial to the appellant/owner. Further in Mohammed Salar ’s case (stated supra) also there is discussion made regarding light motor vehicle. In Mahantesh ’s case (stated supra) the driver of the offending vehicle was holding driving licence of a light motor vehicle only, but the offending vehicle was a heavy transport vehicle, which means a heavy goods vehicle and accordingly, fastened the liability on the owner of the lorry to pay the compensation.

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The judgment relied on by the learned counsel for the Insurance Company in Mukund Dewangan’s case (stated supra) is followed, in which, discussion is made with regard to classification of vehicle as to whether it is a light motor vehicle or heavy goods vehicle based on the gross vehicle weight as defined under the MV Act as discussed above.

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Further it was held that, if a person is holding driving licence to drive the light motor vehicle (non-transport) he can also drive light motor vehicle (transport). Therefore, this is the principle of law laid down for one class of vehicle and if a person holds driving licence, he can drive other types, but also same class of vehicle. Therefore, the principle of law laid down in Mukund Dewangan’s case (stated supra) is also taken into consideration in the present case while deciding this case.

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REGARDING CONTRIBUTORY NEGLIGENCE :

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Learned counsel for the appellant/owner submitted that the accident is between the canter lorry and Tata Ace Luggage Auto. Therefore, the deceased has also contributed his negligence. Therefore, submitted that the contributory negligence has to be taken in the ratio of 50:50 between the

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driver of the canter lorry and deceased who was the driver of the Tata Ace Luggage Auto.

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Upon considering this submission, this Court has perused the evidences on record and P.W-2 is an eye witness to the accident. He has deposed that due to the rash and negligent driving of the canter lorry, the accident has caused. Ex.P.3 is the complaint, in which, the entire allegation is made against the driver of the canter lorry. Ex.P8 is the spot mahazar and spot sketch, which clearly proves the fact that the accident was occurred on National Highway- 206. The Tata Ace Luggage Auto was going from Tarikere towards Bhadravathi and the canter lorry was coming from Bhadravathi towards Tarikere. The place of accident is shown at the extreme left side of the high way leading from Tarikere to Bhadravathi. Therefore, these spot mahazar and spot sketch proves that the driver of the canter lorry by driving the lorry towards extreme wrong side, coming towards the

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way, in which, the Tata Ace Luggage Auto was going and dashed Tata Ace Luggage Auto. Therefore, the driver of the canter lorry by coming towards the wrong side of the road, hit the Tata Ace Luggage Auto, whereas the Tata Ace Luggage Auto was on its correct side, which is at its left side of the road. Therefore, even though, it can be termed as head on collusion between two vehicles, but the fact remains that the driver of the canter lorry drove the lorry towards extreme wrong side of the road and dashed the Tata Ace Luggage Auto. Therefore, the driver of the canter lorry is alone responsible for the accident as also it is corroborated by the documentary evidence Ex.P.2 – complaint, Ex.P.4-chargesheet, in which also, the driver of the canter lorry was charge sheeted. Therefore, upon considering and reappreciating the evidences on record once again as discussed above, contributory negligence is not proved. Therefore, it is held that there is no rash and

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negligent driving by the deceased who was driving the Tata Ace Luggage Auto, but the driver of the canter lorry was alone responsible as he drove the lorry in a rash and negligent manner by coming to the wrong side of the road and dashed the Tata Ace Luggage Auto. Therefore, contributory negligence is not occurred in the present case as it is found and proved that the driver of the canter lorry was alone responsible for the cause of the accident.

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Regarding quantum of compensation :

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The Tribunal has awarded compensation

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under various heads as follows:

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1.	Loss of dependency (Rs.4,500 x 12 x 18	Rs.9,72,000-00
2	Funeral & Obsequies Ceremony	Rs.10,000-00
3.	Transportation	Rs.10,000-00
4.	Loss of Love & Affection	Rs.20,000-00
5.	Loss of Estate	Rs.20,000-00
	TOTAL	Rs.10,32,000-00

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It is the evidence of PW1 who is the father of the deceased that the deceased was owner-cumdriver of Tata Ace Luggage Auto. The Tribunal has taken the notional income of the deceased at Rs.6,000/- per month and since the deceased is a bachelor, deducted 50% of the income and accordingly, awarded compensation under the head loss of dependency. But in the absence of proof of income, the notional income at Rs.8,000/- has to be taken into consideration as the accident was occurred in the year 2013 as per the Notional Income Chart recognized by the Karnataka State Legal Services Authority. The Tribunal has added 50% of the income towards loss of future prospects, which is not correct as per the judgment of the Hon’ble Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay

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Seth i reported in (2017) 16 SCC 680 as in the range of age of the deceased, 40% of income is to be added towards loss of future prospects.

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As per Ex.P.15-driving licence, the date of

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birth of the disease is 28.08.1987. The accident was occurred on 16.07.2013. Therefore, as on the date of the accident, the deceased had crossed the age of 25 years and his age found to be 25 years and 11 months. Therefore, the age of the deceased is to be considered as 26 years. According to the age of the deceased as 26 years, the appropriate multiplier is “17”. Since, the deceased was unmarried 50% of his

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income is to be deducted towards personal expenses considering the size of the family. Therefore, the loss of dependency is re-calculated and quantified as follows:

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Rs.8,000 x 40%= Rs.3,200/-

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Rs.8,000/- + Rs.3,200/- = Rs.11,200/- x 50% x 17 x 12 = Rs.11,42,400/-

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The Tribunal has awarded compensation of Rs.10,000/- towards funeral and obsequies ceremony; Rs.10,000/- towards transportation and Rs.20,000/-

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towards loss of estate, which are found to be correct and there is no need to make modification. Further the Tribunal has awarded only Rs.20,000/- towards loss of love and affection, but as per the judgment of the Hon’ble Apex Court in the case of Magma

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General Insurance Co. Limited Vs. Nanu Ram & Others reported in 2018 ACJ 2782 and Pranay Sethi’s case (stated supra), the claimants are parents who have lost their son. Accordingly, each dependants are entitled for Rs.40,000/- each towards loss of consortium. Accordingly, Rs.80,000/- is awarded to the claimants under the head loss of consortium, which is also nothing, but loss of love and affection. Therefore, on this head, it is modified.

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26. Thus in all the claimants are entitled to the

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compensation are as under:

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1.	Loss of dependency	Rs.11,42,400-00
2	Funeral & Obsequies Ceremony	Rs. 10,000-00	Kept in tact
3.	Transportation	Rs. 10,000-00	Kept in tact

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4.	Loss of Love & Affection	Rs. 80,000-00
5.	Loss of Estate	Rs. 20,000-00	Kept in tact
	TOTAL	Rs.12,62,400-00

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The Tribunal has awarded the

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compensation of Rs.10,32,000/-, but the claimants

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are entitled to total compensation of Rs.12,62,400/- Hence, the claimants are entitled to enhanced compensation of Rs.2,30,400/- (Rs.12,62,400/- - Rs.10,32,000/-). Therefore, the claimants are entitled to enhanced compensation of Rs.2,30,400/- along with interest at the rate of 6% per annum from the date of petition till the date of realization.

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ORDER OF PAY AND RECOVERY:

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The Insurance Company has successively

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taken its defence and established that the driver of the Canter Lorry No.KA:14/A-2588 was not holding the driving licence to drive the canter lorry, as per Section 149(2) of the MV Act. The Insurance

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Company has to first satisfy the claim of the claimants since the claimant is third party and then recover it from the owner of the Canter Lorry No.KA:14/A-2588 as per principles of law laid down by Apex Court in PAPPU AND OTHERS Vs. VINOD KUMAR LAMBA and ANOTHER, AIR 2018 SC 592) , SHAMANNA Vs. ORIENTAL INSURANCE CO. LTD ., (2018) 9 SCC 650 and as per Full Bench decision of this Court in NEW INDIA INSURANCE CO. LTD ., Vs. YELLAVVA AND ANOTHER, 2020 ACJ 2560 . Therefore, the Insurance Company shall satisfy the compensation amount to the claimant who is the third party herein at the first instance and recover it from the owner of the Canter Lorry No.KA:14/A-2588.

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Hence, the appeal filed by the owner is liable to be dismissed and the appeal filed by the claimants is liable to be allowed-in-part. Hence, I proceed to pass the following:

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ORDER

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MFA.No.4875/2017 filed by the owner is

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dismissed .

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MFA.No.5262/2017 filed by the claimants is

¶163

allowed-in-part .

¶164

The impugned judgment and award dated 04.01.2017 passed in MVC No.348/2014 by the Senior Civil Judge and Additional MACT, Tarikere, is hereby modified to the extent that claimants are entitled to enhanced compensation of Rs.2,30,400/- (Rs.12,62,400/- - Rs.10,32,000/-) along with interest at the rate of 6% per annum from the date of petition till the date of realization.

¶165

The Insurance Company shall satisfy the claim to the claimants at the first instance and then recover it from the owner of the Canter Lorry No.KA:14/A-2588 in accordance with law.

¶166

31 MFA NO.4875/2017 C/W

¶167

Amount in deposit made by the owner shall be transmitted to the Tribunal along with TCR and copy of this order forthwith.

¶168

No order as to costs.

¶169

Draw award accordingly.

¶170

Since the appeals are disposed of all pending I.As. do not survive for consideration and they are dismissed.

¶171

Sd/-