[Cites 4, Cited by 0]
Karnataka High Court
Lokesh S/O Late Gangappa vs Kujmarswamy S/O S Obanna on 25 March, 2026
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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NC: 2026:KHC-D:4632
MFA No. 23613 of 2012
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 25TH DAY OF MARCH, 2026
BEFORE
THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
MISCELLANEOUS FIRST APPEAL NO.23613 OF 2012 (MV-I)
BETWEEN:
LOKESH S/O LATE GANGAPPA,
AGE: 17 YEARS, SINCE MINOR REP/BY NATURAL
MOTHER AND GUARDIAN
SMT. GANGAMMA W/O LATE GANGAPPA,
AGE: 41 YEARS, OCC: COOLIE,
R/O: MOTALAKUNTA VILLAGE,
TQ: SANDUR, DIST: BELLARY.
...APPELLANT
(BY SMT.RESHMA MADIWALAR, ADVOCATE FOR
SRI T HANUMAREDDY, ADVOCATE)
AND:
1. KUJMARSWAMY S/O S. OBANNA,
AGE: MAJOR,
OCC: DRIVER OF PICKUP BOLERO CAMPER
BEARING NO.KA-35/A-6767,
R/O: MELINAKANIVE VILLAGE,
TQ: MOLAKALMURU, DIST: CHITRADURGA.
CHANDRASHEKAR
LAXMAN
KATTIMANI
Digitally signed by
2. HUSSAIN BEE W/O HAYATH SAB
AGE: MAJOR,
CHANDRASHEKAR LAXMAN
KATTIMANI
Location: High Court of
Karnataka, Dharwad Bench
Date: 2026.03.27 09:25:09
+0000
OCC: OWNER OF PICKUP BOLERO CAMPER
BEARING NO.KA-35/A-6767,
R/O: MOTHALAKUNTA VILLAGE,
TQ: SANDUR, DIST: BELLARY.
3. THE MANAGER,
IFFICO-TOKIO GENERAL
INSURANCE COMPANY LTD., BELLARY.
...RESPONDENTS
(BY SMT.ANUSHA SANGHAMI, ADVOCATE FOR
SRI SK KAYAKAMATH, ADVOCATE FOR R3 (VC);
NOTICE TO R1 & R2- SERVED)
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NC: 2026:KHC-D:4632
MFA No. 23613 of 2012
HC-KAR
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO CALL FOR RECORD IN MVC
NO.291/2011 ON THE FILE OF THE M.A.C.T-XII AT BELLARY DATED
25.08.2011 AND ALLOW THE APPEAL AND AWARD THE
COMPENSATION OF RS.2,38,150/- EXCEPT THE COMPENSATION
AWARDED BY THE TRIBUNAL AND ETC.
THIS MFA COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
ORAL JUDGMENT
Challenging judgment and award dated 25.08.2011 passed
by Motor Accident Claims Tribunal-XII, Bellary ('Tribunal' for
short) in MVC no.291/2011, this appeal is filed.
2. Smt.Reshma Madivalar, learned counsel appearing
for Shri Hanumareddy, advocate for appellant, submitted appeal
was by claimant challenging dismissal of claim petition against
insurer as well as for enhancement of compensation. It was
submitted that on 13.12.2010, Lokesh son of Gangappa, aged 16
years, was travelling in Bolero vehicle bearing no.KA-35/A-6767
on Challakere-Ballari road, when driver drove it in rash and
negligent manner and applied brakes suddenly. Due to same,
vehicle turned turtle. In accident, claimant Lokesh sustained
grievous injuries and despite treatment at VIMS Hospital, Ballari,
NC: 2026:KHC-D:4632
HC-KAR
he did not recover fully and sustained permanent physical
disability and consequent loss of earning capacity. Claiming
compensation, he filed application under Section 166 of Motor
Vehicles Act, 1988 ('MV Act' for short) against driver, owner and
insurer of Bolero vehcile.
3. Despite notice, driver did not appear and was placed
ex-parte. Owner and insurer opposed claim petition on all
counts. Based on pleadings, Tribunal framed issues and recorded
evidence. Mother of claimant examined herself and
Dr.Shashidhar Reddy, as PWs1 and 2 and got marked Ex.P1 to
P14. Insurer examined its official as RW1 and got marked copy
of insurance policy as Ex.R1.
4. On consideration, Tribunal held accident occurred due
to rash and negligent driving of Bolero vehicle by its driver and
claimant was entitled for compensation of Rs.61,850/-. However
on ground that driver of Bolero was holding driving licence to
drive a Light Motor Vehicle, whereas vehicle in question was a
goods vehicle, it absolved liability of insurer. Aggrieved, present
appeal was filed.
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HC-KAR
5. It was submitted, as per decision of Hon'ble Supreme
Court in case of Mukund Dewangan v. Oriental Insurance
Company Limited1 ('Mukund Dewangan'), dismissal of claim
petition against insurer would not be justified. Insofar as
quantum of compensation, it was submitted claimant aged 16
years was claimed to be working as coolie and earning income.
He sustained fracture of neck of right femur assessed by PW2 to
have resulted in 20% disability to whole body by issuing Ex.P10-
disability certificate. Despite same, Tribunal awarded a meagre
sum of Rs.30,000/- towards 'pain and suffering', Rs.5,000/-
towards 'medical expenses', Rs.5,100/- towards 'attendance and
other incidental expenses', Rs.3,750/- towards 'loss of income
during laid up period' and Rs.18,000/- towards loss of amenities
by considering only 8% as loss of earning capacity which was
grossly inadequate. Tribunal erred in not granting any
compensation towards 'future loss of income' and sought for
enhancement of compensation.
6. On other hand, Smt.Anusha Sanghami learned
counsel appearing for Sri S.K.Kayakamath, advocate for
AIR 2017 SC 3668
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HC-KAR
respondent-insurer opposed appeal. It was submitted, though
question of violation of policy condition insofar as valid and
effective driving licence would stand covered by decision of
Hon'ble Supreme Court in case of Mukund Dewangan, it was
submitted, admittedly claimant was travelling as passenger in a
goods vehicle which would be violation of terms and conditions of
policy and therefore merely on basis of decision in Mukund
Dewangan insurer could not be held liable. Therefore award
passed by Tribunal dismissing claim petition against insurer was
justified.
7. On quantum it was submitted that claimant was
awarded compensation under various heads as entitled and there
was no scope for enhancement.
8. Heard learned counsel, perused impugned judgment,
award and record.
9. From above, following points would arise for
consideration.
i. Whether Tribunal was justified in dismissing
claim petition against insurer? and
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HC-KAR
ii. Whether claimant is entitled for enhancement
of compensation?
10. Point no.1 : Tribunal dismissed claim petition
against insurer primarily on ground that driver of insured vehicle
was holding driving license to drive a Light Motor Vehicle,
whereas vehicle in question was a goods carrying commercial
vehicle requiring transport endorsement. However, in view of
decision of Hon'ble Supreme Court in case of Mukund
Dewangan, reason for dismissal of claim petition would not
sustain.
11. Apart from above, Tribunal has also taken note of
contention of insurer that policy did not cover risk of employees
or passengers. It also observed that no goods were found on
vehicle and therefore contention that claimant was travelling as
coolie for unloading was without material. Insofar as said
contention, though same may sustain insofar as insured,
claimant being a third party, in view of decision of Full Bench of
this Court in case of New India Assurance Co. Limited v.
Yellawwa and Anr.2. even in case of violation of terms and
2020 (2) KCCR 1405
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HC-KAR
conditions of policy, insurer cannot escape from liability insofar
as third parties and would be under obligation to pay
compensation to them and thereafter recover it from insured. In
view of above, point no.1 is answered in negative.
12. Point no.2 : Though claimant stated that he was
working as a coolie and earning Rs.10,000/- per month, same is
not substantiated. There is no dispute that claimant was aged 16
years as on date of accident. In absence of any proof of
occupation and earning capacity, compensation has to be
assessed by recourse to structured compensation method in case
of minors/non-earning members, evolved by Hon'ble Supreme
Court in case of Master Mallikarjun v. Divisional Manager,
National Insurance Company Limited and Anr3. Ex.P10-
disability certificate issued by PW2-doctor would assess disability
sustained on account of fracture of right femur at 20% to whole
body. Though learned counsel for insurer would be justified in
pointing out admission by PW2 that assessment to whole body
would reduce, considering nature of fracture, namely neck of
right femur, it would be safe to conclude that disability in any
AIR 2014 SC 736
NC: 2026:KHC-D:4632
HC-KAR
case would not be below 10%. In such case, claimant would be
entitled for compensation under Second Slab, i.e., sum of
Rs.3,00,000/-. Apart from above, taking notional income of
mother of claimant for year of accident that is 2010 at
Rs.5,500/- and duration of treatment and recuperation at 3
months, claimant is awarded Rs.16,500/- towards loss of
income during laid up period. There is no material to establish
expenditure during period of treatment of 17 days. Taking
notional amount of Rs.500/- as expenses per day and noting
medical bills were for only Rs.3025/- were produced, it is found
appropriate to award Rs.10,000/- towards 'medical and
incidental' expenses.
13. Thus claimant is held entitled for a total
compensation of Rs.3,26,500/-. Point no.2 is answered partly
in affirmative as above. Consequently following:
ORDER
i. Appeal is allowed in part.
ii. Dismissal of claim petition against insurer is set
aside.
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HC-KAR
iii. Claimant is held entitled for reassessed
compensation of Rs.3,26,500/- as against
Rs.61,850/- awarded by Tribunal and same shall
carry interest at 6% per annum from date of
petition till deposit excluding 208 days being
delay in filing appeal as per order dated
08.07.2014.
iv. Insurer is held liable to pay same to claimant in
first instance and thereafter would be at liberty
to recover it from insured.
v. Insurer is directed to deposit compensation
within a period of six (6) weeks from date of
receipt of certified copy of this judgment.
vi. On deposit, Tribunal is directed to release
amount in favour of claimant.
Sd/-
(RAVI V.HOSMANI)
JUDGE
EM, CT:VP
LIST NO.: 1 SL NO.: 7
