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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MFA No. 102785 of 2015
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ORAL JUDGMENT
This is the appeal filed under Section 173(1) of the
Motor Vehicles Act, 1988 by the dissatisfied appellant-
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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MFA No. 102785 of 2015
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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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MFA No. 102785 of 2015
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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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MFA No. 102785 of 2015
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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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MFA No. 102785 of 2015
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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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MFA No. 102785 of 2015
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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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MFA No. 102785 of 2015
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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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MFA No. 102785 of 2015
CNR: KAHC020096632015
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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MFA No. 102785 of 2015
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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
