Babajan S/O Mardansab Sandimani vs Manjunath M on 21 July, 2026

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    Karnataka High Court

    Babajan S/O Mardansab Sandimani vs Manjunath M on 21 July, 2026

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                        HC-KAR                             NC: 2026:KHC-D:10190
                                                        MFA No. 102785 of 2015
    
    
    
                 CNR: KAHC020096632015
    
    
    
                         IN THE HIGH COURT OF KARNATAKA AT DHARWAD
                                 DATED THIS THE 21ST DAY OF JULY 2026
                                               BEFORE
                                 THE HON'BLE MRS JUSTICE GEETHA K.B.
    
                      MISCELLANEOUS FIRST APPEAL NO.102785 OF 2015 (MV)
    
    
                 BETWEEN:
    
                       SHRI. BABAJAN S/O. MARDANSAB SANDIMANI,
                       AGE: 39 YEARS, OCC: BUSINESS,
                       R/O: HONDADA ROAD, HAVERI.
                                                                      ...APPELLANT
                 (BY SRI.B.M.PATIL, ADVOCATE)
    
                 AND:
    
                 1.    SHRI. MANJUNATH M
                       AGE: MAJOR, OCC: BUSINESS,
                       R/O: 66, SINHNASAKATTI,
                       HOLALU, WARD NO.2, HADAGALI,
                       DIST: BALLARI. (OWNER OF J.C.B. NO.TX-6064).
    
                 2.   THE MANAGER,
                      ICICI LAMBARD GENERAL INSURANCE CO. LTD.,
    Digitally         II FLOOR, BANNIGIDA STOP,
    signed by         BELLAD AND COMPANY, GOKUL ROAD,
    SAROJA
    HANGARAKI         HUBLI.
    Location:                                                 ...RESPONDENTS
    HIGH COURT
    OF           (BY SRI.NAGARAJ C.KOLLOORI, ADVOCATE FOR R2;
    KARNATAKA        NOTICE TO R1 IS SERVED)
    DHARWAD
    BENCH
                       THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
                 VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED
                 26.11.2013, PASSED IN MVC NO.293/2012 ON THE FILE OF THE
                 ADDITIONAL SENIOR CIVIL JUDGE, HAVERI PARTLY ALLOWING THE
                 CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
                 OF COMPENSATION AND ETC.
                      THIS APPEAL COMING ON FOR ADMISSION THIS              DAY,
                 JUDGMENT WAS DELIVERED THEREIN AS UNDER:
                 CORAM:     HON'BLE MRS JUSTICE GEETHA K.B.
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         HC-KAR                              NC: 2026:KHC-D:10190
                                         MFA No. 102785 of 2015
    
    
    
    CNR: KAHC020096632015
    
    
    
                            ORAL JUDGMENT

    This is the appeal filed under Section 173(1) of the

    Motor Vehicles Act, 1988 by the dissatisfied appellant-

    SPONSORED

    claimant challenging the judgment and award dated

    26.11.2013 in MVC No.293/2012 on the file of Additional

    Senior Civil Judge, Haveri (in short, ‘the Tribunal’).

    2. Parties would be referred with their ranks as

    they were before the Tribunal for the sake of convenience

    and clarity.

    3. The facts which are established before the

    Tribunal are that on 14.06.2012, the claimant being the

    rider of motorcycle bearing No.KA-27/W-6053 along with

    one pillion rider was going on Guttal Road near a Tanda,

    Guttal; at that time, JCB Earth Mover bearing temporary

    registration No.TX-6064 came and dashed against the

    motorcycle and thereby caused the accident. Due to the

    accident, claimant has sustained three injuries. Amongst

    them, fracture of right Tibia and Fibula was grievous in
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    MFA No. 102785 of 2015

    CNR: KAHC020096632015

    nature and other two injuries were simple in nature. The

    claimant was inpatient in the hospital for 10 days and

    surgery was conducted. Hence, he claimed compensation

    under different heads.

    4. Respondent No.2 filed its objection statement,

    wherein it has taken all the available defence to the

    insurer and also denied the entire averments made in the

    petition and thus prayed for dismissal of the petition.

    5. After framing issues, recording evidence and

    hearing arguments, the Tribunal came to the conclusion

    that claimant is entitled for total compensation of

    ₹1,06,901/- under the following different heads:

           Sl.                Heads                     Compensation in
           No.                                               (₹)
           1.    Towards Medical expenses                     84,901-00
           2.    Towards loss of income during                 2,000-00
                 late of period
           3.    Towards Loss of Amenities and                10,000-00
                 future unhappiness
           4.    Towards Food Nourishment &                   10,000-00
                 Attendance     charges    and
                 Conveyance
                                          Total             1,06,901-00
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         HC-KAR                                NC: 2026:KHC-D:10190
                                             MFA No. 102785 of 2015
    
    
    
    CNR: KAHC020096632015
    
    
    
    

    6. The Tribunal also directed the owner of the

    offending vehicle to pay compensation and exonerated

    respondent No.2 from its liability as driver of the JCB was

    not having valid and effective driving license as on the

    date of accident.

    7. Not satisfied with the compensation awarded by

    the Tribunal and saddling liability only on the owner of

    offending vehicle, claimant is before this Court.

    8. Heard arguments of learned counsels for

    appellant and respondent No.2.

    9. Learned counsel for appellant, Sri B.M.Patil

    would submit that claimant has sustained fracture of Tibia

    and Fibula. However, no compensation was awarded under

    the head ‘pain and sufferings’. Furthermore, even though

    in para No.13, the Tribunal has stated that claimant is

    entitled for compensation considering disability of 10% to

    the whole body towards future earning capacity by taking

    income at ₹4,000/- per month, no compensation was
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    awarded under the said head. Furthermore, the

    compensation awarded under other heads is also on lower

    side. Hence, prayed for allowing the appeal.

    10. Learned counsel for appellant would further

    submit that only on the ground that driver of the JCB was

    not having valid and effective driving licence, the Tribunal

    has exonerated the Insurance Company which is not

    proper. In this regard, he places reliance on New India

    Assurance Company Limited vs. Yallavva reported in

    ILR 2020 KAR 2239, and hence prayed for allowing the

    appeal.

    11. Learned counsel for respondent No.2,

    Sri Nagaraj C Kollori would submit that as per the

    judgment of Hon’ble Apex Court in Balu Krishna Chavan

    vs. Reliance General Insurance Company Limited

    and Others reported in 2023 ACJ 1546, the Court

    cannot direct pay and recover in all cases where there is

    violation of terms and conditions of the policy. He would
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    support the judgment in respect of compensation awarded

    by the Tribunal. Hence, prayed for dismissal of the appeal.

    12. Having heard arguments of both sides, verifying

    the appeal papers and trial court records, the points that

    arise for consideration are:

    “1. Whether exonerating insurance Company

    completely by the Tribunal is proper?

    2. Whether claimant is entitled for

    enhancement of compensation?”

    13. Finding of this Court on point No.1 is in

    NEGATIVE and point No.2 is in AFFIRMATIVE for the

    following:

    REASONS

    14. Facts which are established before the Tribunal

    are that claimant being the rider of the motorcycle has

    sustained fracture of Tibia and Fibula in the accident that

    has taken place involving motorcycle and JCB. He was
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    inpatient in hospital for 10 days and surgery was

    conducted. He was aged about 37 years at the time of

    accident.

    15. The accident has taken place on 14.06.2012.

    No document is produced before the Tribunal to show the

    actual income of the claimant. Under these circumstances,

    reliance is to be placed on the chart prepared by the

    KSLSA for Lok-Adalat. Accordingly, income of claimant is

    taken at ₹6,500/- per month. The disability Certificate

    issued by doctor shows that there is 35% to 40% disability

    to the claimant. Considering disability Certificate, evidence

    of doctor and other materials, this Court holds that there

    is 12% disability to the whole body. Relying on Sarla

    Verma and Others vs. Delhi Transport Corporation

    and Another reported in AIR 2009 SC 3104 case, the

    relevant applicable multiplier is 15. Thus, the claimant is

    entitled for ₹6,500 x 12 x 15 x 12% = ₹1,40,400/-

    towards ‘loss of future earning capacity’.
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    16. The claimant is entitled for compensation of

    ₹40,000/- towards ‘pain and sufferings’, but Tribunal has

    not at all awarded any compensation under said head.

    Claimant is entitled for ‘food, nourishment and attendant

    charges’ at ₹10,000/-. The Tribunal has awarded the same

    and it requires no interference. Claimant is entitled for

    ₹30,000/- towards ‘loss of amenities’. However, Tribunal

    has awarded ₹10,000/- which is on lower side. ‘Loss of

    income during laid-up period’ shall be at least 3 months’

    income of the claimant because he has to take rest at

    least for 3 months for the fracture and injury sustained by

    him. Hence, claimant is entitled for ₹6,500 x 3 =

    ₹19,500/- under this head as against ₹2,000/- awarded by

    the Tribunal.

    17. As far as medical expenses are concerned,

    Tribunal has awarded ₹84,901/- which requires no

    interference.

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    18. Thus, the claimant is entitled for the following

    modified compensation:

    Sl. Heads Compensation Compensation
    No. in (₹) in (₹)
    Awarded by Awarded by
    the Tribunal this Court

    1. Towards Medical expenses 84,901/- 84,901/-

    2. Towards loss of income 2,000/- 19,500/-

    during laid-up period

    3. Towards Loss of Amenities 10,000/- 30,000/-

    and future unhappiness

    4. Towards Food Nourishment 10,000/- 10,000/-

    & Attendance charges and
    Conveyance

    5. Loss of future earning Nil 1,40,400/-

    capacity

    6. Pain and sufferings Nil 40,000/-

    Total 1,06,901/- 3,24,801/-

    19. As far as liability is concerned, it is established

    before the Tribunal that the driver of the JCB was not

    having valid and effective driving licence as on the date of

    accident. This is being established by examining the legal

    retainer of respondent No.2 and producing notice issued to

    the owner and driver of the offending vehicle and also to

    RTO. The charge-sheet is also filed against the driver of

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    the offending vehicle including the offence under Section 3

    read with 181 of the Motor Vehicles Act, 1988.

    20. All the above documents clearly and

    categorically establish that driver of the JCB was not

    having valid and effective driving licence as on the date of

    accident.

    21. The claimant is third party to JCB. He would not

    know that driver of the JCB was having licence or not.

    Learned counsel for respondent No.2-Insurer vehemently

    submits his arguments that the Court casually cannot

    direct pay and recover. In this regard, he places reliance

    on the judgment of Balu Krishna Chavan cited supra,

    wherein at para Nos.8 to 10 held as follows:

    “8. Hence, the only aspect for our
    consideration herein is as to whether in the facts
    and circumstances of the present case, an order
    to direct the insurance company to ‘pay and
    recover’ is required to be made. On this aspect,
    the law is well settled that if the liability of the
    insurance company arising in each case,

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    appropriate orders are required to be made by
    this direction to ‘pay and recover’. However, in
    the facts and circumstances court to meet the
    ends of justice.

    9. In the instant case, appellant has relied on
    the judgment in Manuara Khatun v. Rajesh Kumar
    Singh
    , 2017 ACJ 1031 (SC). In the said case also,
    a Bench of this court, having referred to the
    earlier decisions in paras 15 and 16 of that
    judgment, has concluded that normally, there
    would be no order to ‘pay and recover’. However,
    in the said facts, this court, to meet the ends of
    justice, had taken into consideration the fact
    situation, though the claimant therein was a
    ‘gratuitous passenger’ and had kept in view the
    benevolent object of the Act and had directed the
    payment by the insurance company and to
    recover the amount.

    10. Therefore, on the legal aspect, it is clear
    that in all cases such order of ‘pay and recover’
    would not arise when the insurance company is
    not liable but would, in the facts and
    circumstances, be considered by this court to
    meet the ends of justice.”

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    22. In the aforesaid judgment, reliance was placed

    on the earlier judgment of Hon’ble Apex Court which was

    in respect of gratuitous passenger. Even in the said

    judgment cited supra the claimant was gratuitous

    passenger. In the judgment of the Full Bench of this Court

    in Yallavva‘s case cited supra, it is held that in case of

    violation of policy terms and conditions in respect of

    absence of driving licence, the Insurance Company shall

    be directed to pay the compensation initially and recover

    the same from owner. Hence, placing reliance on said

    judgment, this Court holds that the insurance Company is

    liable to pay compensation initially and recover the same

    from the owner.

    23. In view of the aforesaid discussion, this Court

    passes the following:

    ORDER

    a) Appeal filed under Section 173(1) of the Motor

    Vehicles Act, 1988 is allowed in part.

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    b) Judgment and award dated 26.11.2013 in MVC

    No.293/2012 on the file of Additional Senior Civil

    Judge, Haveri is modified holding that claimant is

    entitled for ₹3,24,801/- as against ₹1,06,901/-

    awarded by the Tribunal.

    c) The compensation shall carry interest at 6% per

    annum from the date of petition till realization.

    d) Respondent-insurer is liable to pay compensation

    initially and recover the same from the owner.

    e) The respondent-insurer shall deposit the enhanced

    compensation amount with accrued interest

    before the Tribunal within a period of 8 weeks

    from the date of receipt of certified copy of this

    judgment.

    f) The disbursement and deposit shall be as per the

    order of the Tribunal.

    g) No Order as to costs.

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    h) Draw modified decree accordingly.

    i) Registry to transmit the TCR to the Tribunal

    forthwith.

    Sd/-

    (GEETHA K.B.)
    JUDGE

    SH
    CT:VH
    List No.: 1 Sl No.: 23



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