Karnataka High Court

Ashok vs Santosh And Anr on 12 February, 2025

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                                                             NC: 2025:KHC-K:1001
                                                         MFA No. 200983 of 2022




                                 IN THE HIGH COURT OF KARNATAKA,

                                         KALABURAGI BENCH

                            DATED THIS THE 12TH DAY OF FEBRUARY, 2025

                                               BEFORE
                                 THE HON'BLE MR. JUSTICE C M JOSHI

                            MISC. FIRST APPEAL NO.200983 OF 2022 (MV-I)
                       BETWEEN:

                       ASHOK S/O HONNAPPA HANAGANDI,
                       AGE: 57 YEARS, OCC: ADVOCATE AND
                       AGRICULTURE,
                       R/O BHAIRAV NAGAR,
                       ATHANI ROAD, NEAR FREEDOM FIGHTERS COLONY,
                       VIJAYAPURA-586 101.

                                                                     ...APPELLANT

                       (BY SRI. BAPUGOUDA SIDDAPPA, ADVOCATE)

                       AND:

                       1.   SANTOSH S/O PAPALAL CHAWAN,
          Digitally
                            AGE: 45 YEARS, OCC: OWNER OF AUTO,
          signed by
          LUCYGRACE         R/O NEAR IBRAHIMPUR RAILWAY STATION,
LUCYGRACE Date:
          2025.02.14
          11:19:02 -
                            PLOT NO.1, VIJAYAPURA-586 101.
          0800



                       2.   THE BRANCH MANAGER,
                            THE ORIENTAL INSURANCE CO. LTD.,
                            S.S. FRONT ROAD, VIJAYAPURA-586 101.



                                                                   ...RESPONDENTS

                       (BY SRI. S.S. ASPALLI, ADV. FOR R2;
                       V/O DTD. 06.02.2024, NOTICE TO R1 IS HELD SUFFICIENT)
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                                             NC: 2025:KHC-K:1001
                                       MFA No. 200983 of 2022




     THIS MFA IS FILED UNDER SECTION 173 (1) OF THE

MOTOR    VEHICLES     ACT,   PRAYING    TO     A)   MODIFY    THE

JUDGMENT     AND   AWARD     DATED     20.12.2021    PASSED    IN

MVC.NO.1556/2016 ON THE FILE OF THE COURT OF THE I

ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER MOTOR

ACCIDENT     CLAIMS     TRIBUNAL       NO.VI    VIJAYAPUR      AT

VIJAYAPURA   AND    ALLOW    THIS    APPEAL    TO    GRANT    THE

COMPENSATION       AMOUNT     BY    Rs.14,99,990/-    ONLY    AS

CLAIMED BY THE APPELLANT BEFORE THIS HON'BLE COURT,

B) THE LIABILITY MAY BE SHIFTED TO RESPONDENT NO.2 i.e.,

INSURANCE COMPANY AND ETC.,.


     THIS APPEAL COMING ON FOR FINAL HEARING, THIS

DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:   HON'BLE MR. JUSTICE C M JOSHI


                      ORAL JUDGMENT

(PER: HON'BLE MR. JUSTICE C M JOSHI)

Heard the learned counsel for the appellant and the

learned counsel for the respondent No.2 - insurance

company.

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02. Being aggrieved by the judgment and award in

MVC.No.1556/2016 dated 20.12.2021 passed by the

learned I Additional Senior Civil Judge and MACT-VI, at

Vijayapura, the petitioner is before this Court seeking

enhancement of compensation.

03. The factual matrix of the case is that the

petitioner on 30.03.2016 while going on his motorcycle

bearing Reg.No.KA-28-W-3133, met with an accident. The

auto-rickshaw bearing Reg.No.KA-28-C-4640 came from

the backside and collided with the motorcycle of the

petitioner. The petitioner fell down and sustained injuries

and was shifted to District Hospital at Vijayapura and

underwent treatment. The petitioner contended that he

was an advocate having income of Rs.30,000/- per month

and also agricultural income. He has suffered the

disability. Therefore, he is entitled for compensation from

the owner and insurer of the offending car.

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04. The respondent No.2 - insurance company

resisted the petition contending that there was no such

negligence on the part of the driver of the auto-rickshaw.

The compensation claimed is highly exorbitant, imaginary

and untenable in law. It also contended that the driver of

the auto-rickshaw was not having a valid driving license.

Therefore, the insurance company is not liable to pay the

compensation.

05. The owner of the auto-rickshaw that is

respondent No.1 did not appear. As such, he was placed

ex-parte.

06. The Tribunal framed appropriate issues and the

petitioner examined himself as PW.1 and Ex.P.1 to 7 were

marked in the evidence. The official of the respondent

No.2 was examined as RW.1 and Ex.R.1 to Ex.R.4 were

marked in the evidence.

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07. After hearing the arguments and on perusing

the evidence on record, the Tribunal held that the driver of

the auto-rickshaw was not having a valid driving license.

Therefore, quantified the global compensation at

Rs,.30,000/- and fastened the liability on the respondent

No.1 only.

08. The learned counsel appearing for the petitioner

in this appeal contended that the compensation awarded

by the Tribunal is on the lower side. It has not considered

the compensation under the head of pain and suffering,

loss of income and loss of amenities in life. It is also

submitted that the Tribunal erroneously fastened the

liability on the respondent No.1 only. In view of several

judgments of the Apex Court and the High Courts, the

respondent No.2 should have been directed to pay the

compensation with liberty to recover the same from the

respondent No.1. In this regard he places reliance on the

judgment of the Hon'ble Supreme Court in the case of

NC: 2025:KHC-K:1001

Parminder Singh vs. New India Assurance Company

Limited1, in the case of Punam Devi and another vs.

Divisional Manager, New India Assurance Company

Limited and others2 and in the case of Pappu vs. Vinod

Kumar Lamba3.

09. Per contra, the learned counsel appearing for

the respondent No.2 contends that the benefit of the

principles of pay and recover is available only if the

respondent No.1 - insured appear before the Tribunal and

takes up the defence that believing in the words of the

driver, he had entrusted the vehicle to him. Unless a case

made out on behalf of the owner of the vehicle that he

acted in good faith, but has not intentionally breached any

of the terms and conditions of the policy. He submitted

that the principle of pay and recovery cannot be

considered when the respondent No.1 has been placed ex-

(2019) 7 SCC 217

(2004) 3 SCC 386

(2018) 3 SCC 208

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parte before the Tribunal; none of the decisions relied by

the learned counsel appearing for the petitioner that would

be applicable to the case on hand. Therefore, on this

ground he resisted the contention of the learned counsel

appearing for appellant. Secondly, he also defended the

quantum of the compensation awarded by the Tribunal

showing the fact that there is no material on record to

appreciate whether there was any expenses or any

disability to the petitioner.

10. The first aspect is to be considered whether the

principle of pay and recovery can be considered. The

judgment of the Apex Court in the case of Parminder

Singh, categorically comes to the conclusion that the

insurance company is not liable to pay the compensation,

since the evidence produced show that the driver had no

driving license. After stating that the insurance company

has to be absolved, the Apex Court in Para No.7.2, directs

the insurance company to pay the compensation amount

and then recover the same from the owner of the vehicle.

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11. It is worth to note that the order of the Apex

Court in directing the insurance company to pay the

compensation was in exercise of the powers under Article

142 of the Constitution of India. When the ratio has been

laid down by the Apex Court, the same is binding. In the

facts and circumstances of the case, the Apex Court felt

that justice would be rendered by exercising the powers

under Article 142 of the Constitution of India. Therefore,

the said judgment cannot be helpful to the petitioner.

12. He also relied on the judgment in the case of

Punam Devi, wherein the Apex Court has held that when

the insurance company neither pleaded nor led any

evidence that the offending driver had no license; the only

ground is open to the insurance company is under Section

149 ( 2) to show that the insured was negligent or that he

failed to exercise a reasonable care.

13. In the case on hand, evidently the insurance

company has appeared and had led evidence. Therefore,

when the insurance company has invoked the provisions of

Section 170 of the Motor Vehicles Act, it can take any

NC: 2025:KHC-K:1001

defence that is available to the owner also. In that view of

the matter, the judgment in the case of Punam Devi is

not applicable to the case on hand. The judgment of the

Apex Court in the case of Pappu, squarely relies on the

principles laid down in the case of National Insurance

Company Limited Vs. Swaran Singh4. The Apex Court

has held about the principles in Para No.10 and 11. The

principles laid down by the Apex Court was followed in

Pappu's case. Therefore, the judgment of the Apex Court

in the case of Pappu does not lay down the principle of

pay and recovery. However, it relies on the judgment of

Swaran Singh to hold that in certain circumstances

where the insured has appeared before the Court and has

explained the circumstances under which he entrusted the

vehicle to a person having no driving license, the principle

of pay and recovery may be ordered. In the facts and

circumstances of the case involved in Pappu, it found the

applicability of the principles laid down in this case.

(2004) 3 SCC 297

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NC: 2025:KHC-K:1001

14. In the case on hand, it is an admitted fact that

the driver of the auto-rickshaw was not having any driving

license. As such the offence under Section 3 of the Motor

Vehicles Act has also been fastened upon him under the

charge-sheet. The respondent No.1 insured has not

appeared before the Tribunal. The respondent No.2

insurance company has led evidence to show that the

driver was not having a valid driving license. Therefore,

the question of pay and recovery do not arise. Moreover,

the appellant cannot insist that the compensation has to

be paid by the respondent No.2 only, when the contractual

obligations exist between the respondents No.1 and 2.

Therefore, the appellant cannot insist upon the person who

has to pay the compensation.

15. Coming to the quantum of the compensation, it

is evident that the petitioner had suffered fracture of the

right wrist, the base of first and 5th metacarpal of the right

hand. Evidently, the petitioner has not produced any

material to show that he was inpatient or how much

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NC: 2025:KHC-K:1001

expenses he had incurred for the treatment. The petitioner

being legal practitioner was very well within the knowledge

that these documents are to be produced before the

Tribunal to come to a conclusion on the compensation

amount to be awarded. Therefore, it has to be inferred

that the petitioner is not having any such material.

However, it is relevant to observe that the Tribunal did not

give any compensation separately under the head of pain

and suffering, amenities and loss of income during the laid

up period. He being a legal practitioner and having

suffered the fracture of the first and the 5th metacarpal,

was unable to perform his duties. As such, there is a need

for enhancement of the compensation.

16. In the considered opinion of this Court the

petitioner is entitled for a sum of Rs.20,000/- under the

head of pain and suffering, sum of Rs.15,000/- under the

head of loss of income during the laid up period. A sum of

Rs.40,000/- under the head of loss of amenities in life.

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17. Therefore, the petitioner is entitled for total

enhanced compensation of Rs.45,000/- under the

following heads :-

  Sl.    Heads                      Compensation     Awarded

  No.                               by this Court

  1.     Pain and suffering         Rs.20,000/-

  2.     Loss of income during      Rs.15,000/-

         laid up period

  3.     Loss of amenities          Rs.40,000/-

         Total                      Rs.75,000/-

         Less: Awarded by the       Rs.30,000/-

         Tribunal

         Total enhancement          Rs.45,000/-

18. Hence, appeal deserves to be allowed in part.

Therefore, the following;

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NC: 2025:KHC-K:1001

ORDER

I. The appeal is allowed in part.

II. The appellant is entitled for a sum of Rs.45,000/- in

addition to what has been awarded by the Tribunal

along with interest at the rate of 6% p.a. from date

of petition till the date of deposit.

III. Rest of the order passed by the Tribunal regarding

deposit etc., remain unaltered.