[Cites 3, Cited by 0]

Karnataka High Court

Kamalabai @ Kamala And Ors vs Jagannath And Anr on 17 December, 2025

Author: H.T.Narendra Prasad

Bench: H.T.Narendra Prasad

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                                                        MFA No. 204132 of 2023


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                                 IN THE HIGH COURT OF KARNATAKA

                                        KALABURAGI BENCH

                             DATED THIS THE 17TH DAY OF DECEMBER, 2025

                                              PRESENT
                           THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
                                                AND
                           THE HON'BLE MR. JUSTICE TYAGARAJA N. INAVALLY
                           MISCL. FIRST APPEAL NO.204132 OF 2023 (MV-D)
                      BETWEEN:

                      1.    SMT. KAMALABAI @ KAMALA
                            S/O SHIVASHARANAPPA @ SHARANU,
                            AGE: 32 YEARS,
                            OCC: HOUSEHOLD,

                      2.    RAJSHEKHAR
                            S/O SHIVASHARANAPPA @ SHARANU,
                            AGE; 15 YEARS,
                            OCC: STUDENT,

                      3.    AKSHATA
Digitally signed by
BASALINGAPPA
                            D/O SHIVASHARANAPPA @ SHARANU,
SHIVARAJ
DHUTTARGAON
                            AGE: 13 YEARS,
Location: HIGH
COURT OF
                            OCC: STUDENT,
KARNATAKA


                      4.    SANTOSHKUMAR
                            S/O SHIVASHARANAPPA @ SHARANU,
                            AGE; 11 YEARS,
                            OCC: STUDENT,

                            APPELLANT NO.2 TO 4 ARE UNDER THE
                            GUARDIANSHIP OF APPELLANT NO.1
                            KAMALABAI
                            W/O SHIVASHARANAPPA @ SHARANU,
                            NATURAL MOTHER OF THE APPELLANTS.
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                                 MFA No. 204132 of 2023


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     ALL ARE R/O: BHANKUR (SHAHABAD),
     NOW RESIDING AT NANDIKOOR,
     KALABURAGI- 585 101.
                                           ...APPELLANTS
(BY SRI BABU H.METAGUDDA, ADVOCATE)

AND:
1.   JAGANNATH
     S/O ISHWARAPPA,
     AGE: 40 YEARS,
     OCC: BUSINESS AND OWNER OF
     OFFENDING VEHICLE,
     R/O: H.NO.209 BHANKUR (SHAHABAD),
     TALUK; CHITTAPUR,
     DISTRICT; KALABURAGI - 585 101.

2.  THE MANAGER
    IFFCO TOKIO GENERAL INSURANCE
    COMPANY LIMITED,
    HAVING BRANCH OFFICE AT OPPOSITE
    ANAND HOTEL JAJEE COMPLEX,
    S.B.TEMPLE ROAD, KALABURAGI - 585 101.
                                         ...RESPONDENTS
(BY SMT PREETI PATIL MELKUNDI, ADVOCATE FOR R2;
NOTICE TO R1 IS SERVED)

     THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO ALLOW THIS APPEAL AND
MODIFY THE JUDGMENT AND AWARD DATED 5.7.2022 PASSED
IN M.V.C.NO.508/2021 BY THE PRL. SENIOR CIVIL JUDGE AND
MACT     AT    KALABURARGI,    AND    ENHANCING     THE
COMPENSATION FROM RS.13,40,500/- WITH 6% INTEREST TO
RS.34,00,000/- WITH 12% INTEREST AND ETC.

    THIS MFA COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
       and
       HON'BLE MR. JUSTICE TYAGARAJA N. INAVALLY
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                                           MFA No. 204132 of 2023


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                           ORAL JUDGMENT

(PER: HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD)

This appeal is by the claimants filed under Section

173(1) of the Motor Vehicles Act, 1988 (for short, 'the

Act') being aggrieved by the judgment and award dated

05.07.2022 passed by the Principal Senior Civil Judge and

MACT, Kalaburagi in MVC No.508/2021 seeking

enhancement of compensation as well as praying to fasten

liability on the insurance company.

2. Facts giving rise to the filing of the appeal

briefly stated are that, on 16.12.2013, deceased

Shivasharanappa @ Sharanu was traveling in Tum-Tum

(Piaggio-Ape) bearing No.KA-32/A-2293 belonging to

respondent No.1 and he was sitting on the backside of the

vehicle. When the vehicle reached near Nandur road after

crossing IOC, the driver of the said vehicle drove the

vehicle in rash and negligent manner and vehicle turned

turtle, due to which, deceased fell down on the road and

sustained grievous bleeding injuries to his head and other

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parts of the body and succumbed to the injuries. Hence,

the claimants filed the claim petition under Section 166 of

Motor Vehicles Act before the Claims Tribunal seeking

compensation for the injuries sustained in the road traffic

accident.

3. Though notice was duly served, respondent

No.1 remained absent, hence he was placed ex parte. The

respondent No.2 - Insurance Company appeared and filed

written statement denying the averments made in the

claim petition.

4. On the basis of the pleadings of the parties, the

Claims Tribunal framed the issues and thereafter recorded

the evidence. The claimants, in order to prove the case,

claimant No.1 got examined herself as PW-1 and got

exhibited documents namely, Ex.P1 to Ex.P14. On behalf

of respondents, one witness is examined as R.W.1 and got

marked five documents as Ex.R.1 to Ex.R.5.

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5. The Claims Tribunal, by the impugned judgment

inter alia held that the accident took place on account of

rash and negligent driving of the driver of the offending

Tum-Tum and deceased succumbed to the injuries

sustained in the accident. The Tribunal, upon considering

the oral and documentary evidence placed before it, held

that the claimants are entitled to compensation of

Rs.13,40,500/- along with interest at the rate of 6% p.a.

and directed respondent No.1 to deposit the compensation

and exonerated respondent No.2 from paying

compensation. Being dissatisfied with the quantum of

compensation and seeking to fasten liability on the

respondent No.2 instead of respondent No.1, this appeal

has been filed.

6. The learned counsel for the claimants raised the

following contentions:

a) The learned counsel for the claimants

contended that at the time of the accident, the offending

vehicle i.e., Tum-Tum (Piaggio-Ape) was covered with

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insurance policy. Even the Tribunal has given finding that

deceased was a gratuitous passenger, the insurance

company is liable to pay the compensation amount with

liberty to recover from the owner of the offending vehicle.

To that effect, the learned counsel has relied upon the

judgment of the Apex Court in the case Sunita and Ors.

Vs. United India Insurance Company Limited & Ors.

in C.A.No.9538/2025, disposed of on 17.07.2025.

b) Lastly, the learned counsel contended that the

compensation awarded by the Tribunal on all the heads

are on the lower side and sought for enhancement of the

compensation.

7. Learned counsel appearing for respondent No.2

- the Insurance Company contended that deceased was

traveling in the goods vehicle as a passenger and since

injured has violated the policy conditions, the insurance

company is not liable to pay the compensation. The

Tribunal has rightly exonerated insurance company from

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paying compensation to the claimants. Hence, prayed to

dismiss the appeal.

8. Heard the learned counsel for the parties,

perused the judgment and award.

9. It is not in dispute that deceased

Shivasharanappa died in a road traffic accident occurred

on 16.12.2013 due to the injuries sustained in the

accident caused by the driver of the offending vehicle i.e.,

Tum-Tum (Piaggio-Ape) bearing Registration No.KA-32/A-

2293. The Tribunal considering the age, avocation and

other aspects has rightly granted compensation to the

claimants. The offending vehicle was insured with the

respondent No.2 - Insurance company. Since the

offending vehicle is covered with valid insurance policy and

even though deceased was traveling as an unauthorized

passenger, then also the insurance company has to pay

the amount with liberty to recover the same from the

owner of the offending vehicle.

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10. In regard to above, para No.13 of the judgment

of Hon'ble Apex Court in the case of Sunita (supra) is

extracted as under:

" Adverting to the facts in hand, from a bare perusal of the record, it is borne that the vehicle in question was insured with "Liability Only Policy" and no premium was paid to cover the driver, owner, or a gratuitous passenger traveling therein. However, even then, in our view, the Courts below erred in holding that the Insurance Company is not liable to pay the compensation to the claimant-appellants, for the principle of "Pay and Recover" ought to have been invoked. As such, we are inclined to interfere with the above findings of the Courts below"

11. In view of aforesaid pronunciation of dictum by

the Apex Court, the impugned judgment and award

requires modification to the effect that the insurance

company has to pay the compensation first and then

recover the same from the owner of the offending vehicle.

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12. In the result, the following: