Shukra Narayana Gonda S/O Narayana Gonda Vs Somayya Shukra Gonda S/O Shukra Gonda

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NC: 2025:KHC-D:12575 MFA No. 100049 of 2014

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA,AT DHARWAD DATED THIS THE 18^TH DAY OF SEPTEMBER, 2025 BEFORE

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THE HON'BLE MR. JUSTICE ASHOK S. KINAGI MISCELLANEOUS FIRST APPEAL NO. 100049 OF 2014 (MV-I)

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BETWEEN:

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SHUKRA NARAYANA GONDA, S/O. NARAYANA GONDA, AGE: 50 YEARS, R/O: CHURCH ROAD, KUNDAPURA, TQ: KUNDAPURA.

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…APPELLANT

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(BY SRI. VIJAYKUMAR KOTIN, ADVOCATE)

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AND:

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SOMAYYA SHUKRA GONDA S/O SHUKRA GONDA AGE: MAJOR, R/O: HADIL, SABATHI POST and VILLAGE, TQ: BHATKAL, U.K.

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MOHANKUMAR B SHELAR

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Location: HIGH COURT OF KARNATAKA

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THE NEW INDIA ASSURANCE CO.LTD. BHATKAL BRANCH, BHATKAL, U.K. REP.BY ITS BRANCH MANAGER.

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…RESPONDENTS

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(BY SRI. SIDDAPPA S. SAJJAN, ADVOCATE; SMT. PREETI SHASHANK, ADVOCATE FOR R2)

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THIS MFA FILED U/SEC.173(1) OF MV ACT 1988, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 20.09.2013 PASSED BY COURT OF ADDITIONAL MACT, HONAVAR IN MVC NO.167/2009, AWARD THE COMPENSATION AS CLAIMED IN THE CLAIM PETITION AND SHIFT THE LIABILITY ON THE 2^ND RESPONDENT INSURANCE COMPANY, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

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HC-KAR

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ORAL JUDGMENT

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This Appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘M.V.Act,’ for short) by the appellant-claimant, challenging the judgment and award dated 20.09.2013 passed in MVC No.167/2009 by the Additional MACT, Honavar (itinerary court at Bhatkal).

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Brief facts, leading rise to the filing of this appeal, are as follows:

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On 23.01.2005, at 7.15 a.m., the petitioner was proceeding in a goods rickshaw to go to the Bhatkal weekly market to sell the vegetables and food grains grown in his field. He engaged the goods rickshaw bearing Reg.No.KA47/302 to transport the vegetables and food grains. When it reached near Hulidevara Temple, Ganesh Nagar on NH-17, the said rickshaw turned turtle. Due to the said impact, the petitioner sustained grievous injuries. The petitioner filed a claim petition under Section 166 of the M.V.Act, claiming

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HC-KAR

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compensation for the injuries sustained by him in a road traffic accident.

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Respondent Nos.1 and filed their separate written statement. Respondent No.1-owner of the rickshaw denied the averments made in the claim petition. It is contended that the driver of the rickshaw possessed a valid and effective driving license as of the date of the accident, and the vehicle was insured with the Insurance Company. Hence, prays to dismiss the claim petition against the owner of the offending vehicle.

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The Insurance Company filed a written statement denying the averments made in the claim petition. It is contended that the petitioner was travelling in the offending vehicle as an unauthorized passenger, and there is breach of the policy conditions . It is further contended that as of the date of the accident the driver of the offending vehicle was not holding a valid driving license. Hence, prays to dismiss the claim petition against the Insurance Company.

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NC: 2025:KHC-D:12575 MFA No. 100049 of 2014

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HC-KAR

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The Tribunal, based on the pleadings of the parties, framed the relevant issues.

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The petitioner, to substantiate his case, examined himself as P.W.1, examined two doctors as P.Ws.2 to 4, and marked 171 documents as Exs.P1 to P171. On the other hand, Investigating Officer was examined as R.W1, PSI was examined as R.W.2, and Administrative Officer of the Insurance Company was examined as R.W3, and marked 34 documents as Exs.R1 to R34. The Tribunal, after assessing the verbal and documentary evidence, allowed the claim petition in part with costs, and awarded compensation of Rs.2,83,500/- with interest at the rate of 6% p.a. from the date of the petition till realization. It is held that Respondent No.1 is alone is liable to pay the compensation, and the claim petition against the Insurance Company was dismissed.

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HC-KAR

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The petitioner, aggrieved by the quantum of compensation awarded in MVC No.167/2009, filed this Miscellaneous First Appeal.

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Heard the learned counsel for the petitioner, the learned counsel for the owner of the offending vehicle and the Insurance Company.

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The learned counsel for the petitioner submits that the compensation awarded by the Tribunal is on the lower side. He submits that as of the date of the accident, the vehicle was insured with the Insurance Company. If there was any violation of the policy condition, the Tribunal could have directed the Insurance Company to pay the compensation at the first instance, and recover the same from the owner of the offending vehicle. To buttress his arguments, he placed reliance on the judgment of the Full Bench of this court in the case of NEW INDIA ASSURANCE COMPANY LTD BIJAPUR, BY ITS DIVISIONAL MANAGER VS.

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NC: 2025:KHC-D:12575 MFA No. 100049 of 2014

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HC-KAR

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YALLAVVA AND ANOTHER reported in 2020 (2) AKR 484,

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and prays to allow the appeal.

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Learned counsel for the owner of the offending vehicle submits that the petitioner was travelling along with the goods, and there is no violation of the policy conditions. He submits that the Tribunal committed an error in fastening the liability on the owner of the offending vehicle. Hence, he prays to allow the appeal.

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Per contra, the learned counsel for the Insurance Company submits that the petitioner was the unauthorised passenger. She submits that the petitioner has not carried the vegetables in the offending vehicle. She also submits that the police have not seized the vegetables as contended by the petitioner. She submits that there was a violation of the policy conditions, and the Tribunal was justified in dismissing the claim petition against the Insurance Company. Hence, on these grounds, she prays to dismiss the appeal.

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HC-KAR

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Perused the records, and considered the submissions made by the learned counsel for the parties.

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The point, that would arise for consideration is regarding the liability and the quantum of compensation.

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There is no dispute regarding the occurrence of the accident, and the injuries sustained by the petitioner in a road traffic accident. The petitioner has produced the charge sheet marked as Ex.P173, which discloses that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle.

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Reg.Liability:

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The Insurance Company has taken a specific contention in the written statement that the petitioner was travelling in the offending vehicle as an unauthorised passenger, and no premium was paid. To prove that the petitioner was travelling along with the goods, the petitioner has not examined any witness to demonstrate that the petitioner was travelling along with the goods. From the

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HC-KAR

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perusal of the charge sheet, it does not disclose that police have seized the goods. Admittedly, no documents are produced by the petitioner to establish that the petitioner was travelling in the offending vehicle along with the goods. Thus, there is violation of the policy condition, and the Tribunal was justified in dismissing the claim petition against the Insurance Company.

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As of the date of the accident, the offending

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vehicle was insured with the Insurance Company. If there is violation of the policy condition, the Insurance Company is liable to indemnify the owner against the third party at first

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instance, and recover the same from the owner of the offending vehicle. In view of the proposition laid down by Full Bench of this court in the case of, New India Assurance

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Co. Ldt., Bijapur by its Divisional Manager v. Yallavva and

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Another reported in ILR 2020 KAR 2239, wherein this Court has held that in case if there is any breach of policy conditions, the insurance company has to deposit the compensation amount first and then, proceed to recover the

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HC-KAR

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same from the owner of the offending vehicle. Hence, the Tribunal committed an error in not directing the Insurance Company to pay and recover the compensation amount from the owner of the offending vehicle. To that extent, the judgment and award needs to be modified.

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Reg. Quantum of compensation:

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It is contended that the petitioner was working as an agriculturist, and was earning Rs.10,000/- p.m. To prove his income, the petitioner has not produced any income proof. The accident occurred in 2005. As per the schedule notified by the Karnataka State Legal Services Authority, the notional income of the petitioner is taken at Rs.3,500/- p.m. The petitioner was aged 45 years old as of the date of the accident. The appropriate multiplier applicable to the age group is ‘14’. The petitioner underwent five major surgeries in Chinmay Hospital, and three major surgeries in KMC, Hospital, Manipal. To prove the disability, the petitioner examined the doctors as P.Ws.2 and 3. P.W.2 assessed the disability at 30% to the whole body, and

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HC-KAR

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P.W.3 assessed the disability at 12% to the whole body. However, the Tribunal has assessed the permanent disability to the whole body at 15%, which is on the lower side. Considering the evidence of the doctors, and the medical records, this court is of the opinion that the percentage of disability assessed by the Tribunal is on the lower side. This court re-asses the permanent disability to the whole body at 20%.

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Thus, this court on re-assessment of the entire

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evidence on record, awards the following compensation:

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Sl.		Compensationa	wardedin Rs.
No.	Heads of compensation	By the Tribunal	By this Court
3	Pain and suffering	50,000/-	75,000/-
4	Loss of income during the laid up period	28,000/-	35,000/- (Rs.3,500 x 10)
5	Loss of future earning due to disability	88,200/-	1,17,600/- (Rs.3,500/- x12x14x20%)
	Medical expenses	92,000/-	92,000/-
	Conveyance and nourishment and attendant charges	15,000/-	30,000/-
7	Loss of amenities	10,000/-	25,000/-
	Total : Rounded off to	2,83,200/- 2,83,500/-	3,74,600/-
	Enhanced	compensation	91,100/-

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HC-KAR

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In view of the above discussion, I proceed to

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pass the following:

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ORDER

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(i) The Appeal is allowed in part.

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(ii) The impugned judgment and the award passed by the Tribunal is hereby, modified.

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(iii) The petitioner is entitled to a total compensation of Rs.3,74,600/- as against Rs.2,83,500/- awarded by the Tribunal with interest at 6% per annum from the date of petition till realisation of the amount. The petitioner is entitled to an enhanced compensation of Rs.91,100/-.

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(iv) The Insurance Company is directed to deposit the compensation amount with accrued interest within 8 weeks from the date of receipt of a copy of this judgment, and recover the same from the owner of the offending vehicle in accordance with law.

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