[Cites 2, Cited by 0]
Karnataka High Court
The Divisional Manager vs Malayya S/O Virupanna on 9 April, 2026
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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NC: 2026:KHC-D:5325
MFA No. 25339 of 2012
C/W MFA No. 23930 of 2013
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT DHARWAD
DATED THIS THE 9TH DAY OF APRIL, 2026
BEFORE
THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
MISCELLANEOUS FIRST APPEAL NO. 25339 OF 2012
C/W
MISCELLANEOUS FIRST APPEAL NO. 23930 OF 2013
IN MFA NO. 25339/2012:
BETWEEN:
THE DIVISIONAL MANAGER,
THE NEW INDIA ASSURANCE CO. LTD.,
DIVISIONAL OFFICE, EDIGA HOSTEL COMPLEX,
DOUBLE ROAD, BELLARY.
NOW REPRESENTED BY:- THE REGIONAL MANAGER,
NEW INDIA ASSURANCE COMPANY LTD.,
SRINATH COMPLEX, NEW COTTON MARKET,
HUBLI-580029.
...APPELLANT
(BY SRI MY KATAGI, ADVOCATE)
AND:
CHANDRASHEKAR
1. MALAYYA
LAXMAN
KATTIMANI S/O VIRUPANNA,
Digitally signed by
CHANDRASHEKAR
AGE: 18 YEARS, OCC: MILK VENDING BUSINESS,
MINOR, U/G HIS NATURAL FATHER
LAXMAN KATTIMANI
Location: High Court of
Karnataka, Dharwad Bench
Date: 2026.04.15 02:46:00 -
0700
VIRUPANNA S/O KARIYAPPA,
AGE: 48 YEARS, OCC: AGRICULTURAL,
R/O.KONNAPUR, TAL: GANGAVATHI, DIST: KOPPAL.
2. SWARUP SINGH
S/O GURUDAYAL SINGH,
AGE: 29 YEARS, OCC: DRIVER OF THE LORRY
BEARING NO.MH-04/CP-6935,
R/O.NO.103, NURANI APARTMENT, VISHAL NAGAR,
VASAVI ROAD, THANE (MH).
3. SUKHEDEO SINGH
S/O GURUDAYAL SINGH,
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MFA No. 25339 of 2012
C/W MFA No. 23930 of 2013
HC-KAR
AGE: 46 YEARS, OCC: OWNER OF THE LORRY
BEARING NO.MH-04/CP-6935,
R/O.NO.103, NURANI APARTMENT, VISHAL NAGAR,
VASAVI ROAD. THANE (MH).
...RESPONDENTS
(BY SRI M. AMAREGOUDA, ADVOCATE FOR R1;
NOTICE TO R2 IS DISPENSED WITH;
NOTICE TO R3 IS HELD SUFFICIENT)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT 1988, PRAYING TO ALLOW THE APPEAL AS PRAYED
FOR BY SETTING ASIDE THE JUDGMENT AND AWARD DATED
05.07.2012 PASSED BY THE SENIOR CIVIL JUDGE AND MACT
GANGAVATHI IN MVC NO.87/2009 WITH COSTS IN THE INTEREST
OF JUSTICE AND EQUITY.
IN MFA NO.23930/2013:
BETWEEN:
MALAYYA S/O VIRUPANNA,
AGE: 18 YEARS, OCC: MILK VENDING,
R/O. KONNAPUR, TQ: GANGAVATHI, DIST: KOPPAL.
...APPELLANT
(BY SRI M. AMAREGOUDA, ADVOCATE)
AND:
1. SWARUP SINGH S/O GURUDAYAL SINGH,
AGE: 30 YEARS, OCC: DRIVER OF THE LORRY
BEARING REG NO.MH-04/CP-6935,
R/O. NO.103, NURANI APT., VISHAL NAGAR,
VASAVI ROAD, THANE (MH).
2. SUKHEDEO SINGH S/O GURUDAYAL SINGH,
AGE: 47 YEARS, OCC: OWNER OF THE LORRY
BEARING NO.MH-04/CP-6935,
R/O. NO.103, NURANI APT.,
VISHAL NAGAR, VASAVI ROAD, THANE (MHO).
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MFA No. 25339 of 2012
C/W MFA No. 23930 of 2013
HC-KAR
3. THE DIVISIONAL MANAGER,
THE NEW INDIA ASSURANCE COMPANY LTD.,
DIVISIONAL OFFICE, EDIGA HOSTEL COMPLEX,
DOUBLE ROAD, BELLARY.
...RESPONDENTS
(BY SRI MY KATAGI, ADVOCATE FOR R3;
NOTICE TO R1 IS DISPENSED WITH;
NOTICE TO R2 IS HELD SUFFICIENT)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT 1988, AGAINST THE JUDGMENT AND AWARD
DATED 05-07-2012 PASSED IN MVC NO.87/2009 ON THE FILE
OF SENIOR CIVIL JUDGE AND MACT, GANGAVATHI, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION & ETC.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE RAVI V.HOSMANI
ORAL JUDGMENT
Challenging judgment and award dated 05.07.2012
passed by Senior Civil Judge and MACT, Gangavathi1 in MVC
no.87/2009, these appeals are filed.
2. MFA no.25339/2012 is by insurer challenging award
on finding of Tribunal on liability as well as on quantum and
MFA no.23930/2013 is by claimant for enhancement of
compensation.
For short, 'Tribunal'
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HC-KAR
3. Sri MY Katagi, learned counsel for insurer submitted
that, insurer's appeal was challenging finding of Tribunal on
liability as well as on quantum. It was submitted as per
claimant at 11.30 a.m., on 07.09.2008 when claimant-Malayya,
a minor aged 14 years old was crossing road near
Basaveshwara Nagar cross road at Karatagi, driver of Lorry
no.MH-04/CP-6935 drove it in rash and intelligent manner and
dashed against claimant causing injuries. Despite treatment,
claimant did not recover fully and sustained loss of earning
capacity. Therefore, he filed claim petition against driver, owner
and insurer of Lorry under Section 166 of Motor Vehicles Act,
1988.
4. On service of notice, respondents appeared and
opposed claim petition on all grounds. Based on pleadings,
Tribunal framed issues and recorded evidence. Claimant along
with Dr.Ramakrishna deposed as PW1 and PW2 and got marked
Exs.P1 to P11. Official of insurer deposed as RW1 and got
marked Ex.R1.
5. On consideration, Tribunal held accident occurred
due to rash and negligent driving of insured lorry by its driver
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and vehicle was covered by insurance as on date of accident
and claimant was entitled for compensation from insurer at
Rs.1,88,600/-. Aggrieved, these appeals are filed.
6. It was submitted, there was no dispute about
occurrence of accident and claimant sustaining injuries. In
order to establish actionable negligence against insurer,
claimant relied upon police investigation records as well as
notarized copies of driving license of driver of Lorry and
registration certificate of insured vehicle. Ex.P6-copy of driving
licence indicated that driver of insured vehicle had a driving
license to drive Light Motor Vehicle, whereas, vehicle he was
driving was a Lorry i.e., Heavy Goods Vehicle, Ex.P7 showing
its gross vehicle weight at 25 Tons. Therefore, there was
violation of terms and conditions of policy and insurer would
not be liable.
7. On quantum it was submitted, claimant was a minor
aged 14 years, who sustained fracture of tibia and 5th
metatarsal. PW2 who examined injured had assessed disability
at 25% to particular limb by considering 5% disability due to
fracture of metatarsal. Though there was some restriction of
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movement noticed, since there was no fracture of fibula, extent
of assessment by PW2 was required to be considered as
excessive. It was submitted, since claimant was a minor,
Tribunal ought to have assessed compensation as per
structured formula evolved in case of Master Mallikarjun v.
Divisional Manager, The National Insurance Company
Limited and Anr.2, and separate compensation towards pain
and suffering, medical expenses, loss of income during
treatment, loss of amenities, incidental expenses and loss of
future income as done by Tribunal, could not be justified. On
said grounds, sought for allowing insurer's appeal.
8. On the other hand, Sri M. Amaregouda, learned
counsel for claimant while opposing insurer's appeal submitted,
claimant had also sought for enhancement of compensation. It
was submitted, PW2 assessed disability at 25%, therefore,
Tribunal erred in not taking same as loss of earning capacity
and award appropriate compensation.
9. It was submitted compensation awarded under
various heads were on lower side and sought enhancement. On
above grounds, sought for allowing claimant's appeal.
AIR 2014 SC 736
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HC-KAR
10. Heard learned counsel for parties, perused
impugned judgment and award.
11. From above, points that would arise for
consideration are:
1) Whether finding of Tribunal on liability of
insurer calls for modification?
2) Whether assessment of compensation by
Tribunal calls for modification?
12. Point no.1: It is seen, there is no dispute about
occurrence of accident involving insured vehicle and claimant
sustaining grievous injury/loss of earning capacity in said
accident. Main ground urged by insurer on liability is that
Exs.P6 and P7 would indicate driver of insured vehicle was
holding driving license to drive Light Motor Vehicle, but was
driving Heavy Goods Vehicle, which would be violation of terms
and conditions of policy. Ex.P7 shows category of insured
vehicle as 'Heavy Goods Vehicle'. Thus, material placed on
record by claimant themselves, would indicate violation of
terms and conditions of policy by driver/insured. However,
claimant herein being third party, insurer would require to pay
compensation to claimant in first instance and thereafter,
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HC-KAR
recover it from insured. Accordingly, point no.1 is answered
partly in affirmative.
13. Point no.2: There is no dispute that as on date of
accident, claimant was 14 years of age allegedly doing milk
vending. But, there is no material placed to establish either
occupation or income. In absence and considering age,
claimant would have to be treated as a non earning member.
Hon'ble Supreme Court in case of Master Mallikarjun (supra)
evolved a structured formula for assessment/payment of
compensation in injury cases of non-earning minors. In case of
disability from 0 to 10%, claimant would be entitled for sum of
Rs.1,00,000/-; in case disability is more than 10%, but upto
30% claimant would be entitled for Rs.3,00,000/- as lumpsum
compensation. Hon'ble Supreme Court has clarified that apart
from lump sum compensation as above, claimant would be
entitled for reimbursement of medical expenses, conveyance,
transportation, loss of income of parents during treatment/lay
off period.
14. Under above circumstances, Tribunal was not
justified in assessing compensation as in case of a regular claim
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petition. Tribunal has awarded total sum of Rs.1,88,600/- to
claimant. While passing impugned award, Tribunal has
assessed compensation towards medical expenses, loss of
income during treatment as well as compensation towards
conveyance, attendance and other incidental expenses.
Considering inpatient period of 21 days and normal period of
healing and recuperation in case of fracture at three months,
even if notional income of both parents is taken into account at
Rs.4,250/- and compensation towards medical expenses and
other incidental expenses as well as towards amount of loss of
income during lay off period is added, and disability of claimant
is assessed to be less than 10%, there would be no scope for
substantial modification of award on quantum. Therefore, point
no.2 is answered in negative.
15. Consequently, following:
ORDER
(i) MFA no.25339/2012 is allowed in part.
Judgment and award dated 05.07.2012
passed by Senior Civil Judge and MACT,
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Gangavathi, in MVC no.87/2009, stands
modified.
(ii) Though insurer is held liable to pay
compensation to claimant as per impugned
award in first instance, it is reserved liberty to
recover same from insured without recourse
to separate proceedings.
(iii) Insurer's appeal on quantum is dismissed.
(iv) Claimant's appeal for enhancement in MFA
no.23930/2013 is dismissed.
(v) Amount in deposit is ordered to be
transmitted to Tribunal for payment.
(vi) Balance compensation amount to be deposited
within six (6) weeks. On deposit, entire
compensation is ordered to be released in
favour of claimant.
Sd/-
(RAVI V.HOSMANI)
JUDGE
SMM, CT:VP
LIST NO.: 1 SL NO.: 10
