Karnataka High Court
The Manager vs Channappa S/O. Parappa Horapeti on 10 July, 2026
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MFA No. 100214 of 2019
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HC-KAR
IN THE HIGH COURT OF KARNATAKA AT DHARWAD
DATED THIS THE 10TH DAY OF JULY, 2026
BEFORE
THE HON'BLE MRS JUSTICE GEETHA K.B.
MISCELLANEOUS FIRST APPEAL NO.100214 OF 2019 (MV-D)
C/W
MFA CROSS OBJ NO.100086 OF 2022 (MV-D)
IN MFA NO.100214/2019:
BETWEEN:
THE MANAGER
IFFCO-TOKIO GEENRAL INSURANCE CO. LTD.,
III FLOOR, SUDEV PLAZA,
OPPOSITE SRI. LAXMI TEMPLE,
DAJIBAN PETH, HUBBALLI-580029,
NOW REPRESENTED BY ITS
AUTHORISED SIGNATORY.
...APPELLANT
(BY SRI.SUBHASH J.BADDI, ADVOCATE)
Digitally
signed by AND:
SAROJA
HANGARAKI
Location: 1. CHANNAPPA S/O. PARAPPA HORAPETI
HIGH COURT
OF AGE: 53 YEARS, OCC: AGRICULTURE.
KARNATAKA
DHARWAD
BENCH 2. SHYAVAMMA W/O. CHANNAPPA HORPETI
AGE: 48 YEARS, OCC: AGRICULTURE,
(BOTH ARE R/O. HULAGERI,
TQ: KUSHTAGI-583277).
3. DEVENDRAPPA
S/O. HANAMANTHAPPA MADIVALI,
AGE: 28 YEARS, OCC: OWNER CUM DRIVER OF
THE LORRY ITS NO. KA-19-B-7421,
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R/O. NARAYANAPUR,
TQ AND DIST: GADAG-582112.
...RESPONDENTS
(BY SRI.P.G.MOGALI, ADVOCATE FOR R1 AND R2;
NOTICE TO R3 IS SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD
DATED 12.06.2018 PASSED IN MVC NO.308/2015 ON THE FILE
OF THE SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS
TRIBUNAL, KUSHTAGI, AWARDING COMPENSATION OF
₹11,87,000/- WITH INTEREST AT 8% P.A. FROM THE DATE OF
PETITION TILL ITS REALISATION.
IN MFA CROB. NO.100086/2020:
BETWEEN:
1. CHANNAPPA S/O. PARAPPA HORAPETI
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O. HULAGERI, TQ: KUSHTAGI,
DIST: KOPPAL.
2. SMT. SHYAVAMMA W/O. CHANNAPPA HORAPETI
AGE: 50 YEARS, OCC: HOUSEHOLD
AND AGRICULTURE,
R/O. HULAGERI, TQ: KUSHTAGI,
DIST: KOPPAL.
...CROSS OBJECTORS
(BY SRI.P.G.MOGALI, ADVOCATE)
AND:
1. DEVENDRAPPA
S/O. HANUMANTHAPPA MADIVALI,
AGE: 30 YEARS, OCC: OWNER CUM DRIVER OF
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LORRY BEARING REGN.NO.KA-19/B-7421,
R/O. NARAYANAPUR, TQ. AND DIST: GADAG.
2. THE MANAGER
IFFCO-TOKIO,
GENERAL INSURANCE COMPANY LTD.,
3RD FLOOR, SUDEV PLAZA,
OPPOSITE TO SRI LAXMI TEMPLE,
DAJIBANPET, HUBBALLI 580029,
TQ: HUBBALLI, DIST: DHARWAD.
...RESPONDENTS
(BY SRI.SURESH J.BADDI, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH)
THIS MFA.CROB IN MFA NO.100214/2019 IS FILED
UNDER ORDER XLI RULE 22 OF CPC R/W SECTION 173(1) OF
M.V. ACT, AGAINST THE JUDGMENT AND AWARD DATED
12.06.2018 PASSED IN MVC NO.308/2015 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS
TRIBUNAL, KUSHTAGI, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS APPEAL AND CORSS OBJECTION HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT ON 18.06.2026 AND
COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MRS JUSTICE GEETHA K.B.
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CAV JUDGMENT
MFA No.100214/2019 is filed under Section 173(1) of
the Motor Vehicles Act, 1988 by the Insurance Company
challenging the liability and quantum of compensation
awarded under judgment and award dated 12.06.2018 in
MVC No.308/2015 on the file of Senior Civil Judge &
M.A.C.T., Kushtagi (for short ‘Tribunal’). MFA CROB.
No.100086/2022 is filed under Order XLI Rule 22 of CPC
read with Section 173(1) of Motor Vehicles Act, 1988 (for
short, ‘M.V. Act‘) by the claimants praying for
enhancement of compensation.
2. Parties would be referred to with their ranks as
they were before the Tribunal for the sake of convenience
and clarity.
3. Claimants have filed the claim petition under
section 166 M.V. Act praying for compensation of ₹
20,00,000/- on account of death of their son Basavaraj
and in a road traffic accident occurred on 15.09.2014.
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4. The case of claimants before the Tribunal in
nutshell is that claimants are father and mother of
deceased Basavaraj who was working in the offending
lorry bearing No.KA-19/B-7521 as cleaner and was getting
₹500/- per day as salary from respondent No.1 who is the
owner and in possession of offending vehicle. On
15.09.2014 at about 10.00 p.m. deceased was on duty in
the said offending vehicle proceeding from Hosakera to
Ilkal; at that time within Hosakera limits near S.B.C Canal
24 K.M., on side of Canal road, respondent No.1 drove the
offending vehicle in a rash and negligent manner and
because of that offending vehicle became turned turtle, fall
into the ditch in S.B.C. canal 24 K.M.; and due to that
Basavaraj sustained grievous injuries and died at the spot.
5. The claimants contended that the accident has
taken place due to rash and negligent driving of
respondent No.1. Deceased was working as cleaner under
respondent No.1. The vehicle in question is insured with
respondent No.2. Moreover, policy was in force as on the
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date of accident. They were depending upon the income of
deceased. Hence, claimed compensation under different
heads.
6. After service of summons, respondent No.1-
owner filed his objection statements, wherein he took
contention that petition is false, frivolous, vexatious and
not tenable in the eye of law; the petition is bad for mis-
joinder of party. Claimant No.1 is father of deceased and
not Class-I legal heir and thus not entitled for
compensation. Further, respondent No.1 denied the
occupation, income of deceased and the manner in which
accident occurred, etc. Further he contended that
compensation prayed is highly inflated, unreasonable and
without basis. But, admitted that he is owner-cum-driver
of lorry No.KA-19/B-7521 and it is validly insured with
respondent No.2. Hence, prayed for dismissal of claim
petition.
7. Respondent No.2-Insurance Company filed its
objections statement, wherein it denied all the averments
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made in claim petition. The vehicle in question is goods
carriage and deceased was travelling in the vehicle with
other persons and thus he is unauthorised passenger and
there is clear violation of terms of policy and thus it is not
liable to pay compensation. Hence, prayed for dismissal of
the claim petition.
8. After framing issues, recording evidence of both
sides and hearing arguments of both sides, Tribunal held
that the employer-employee relationship between
respondent No.1 and deceased is established. The
claimants can claim compensation either under M.V. Act or
under Employee’s Compensation Act, 1923. Hence, claim
petition is maintainable in law. Further, it is held that
claimants are entitled for total compensation of
₹11,87,000/- with interest at 8% from date of petition till
realization.
9. Aggrieved by the same, appellant/insurer has
filed the present appeal.
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10. Heard arguments of both sides.
Learned counsel for appellant, Sri Subhash J Baddi
would submit that deceased was not travelling in the lorry
as cleaner but he was travelling as unauthorised
passenger. The Tribunal has not verified these facts in a
proper way. Further, the notional income of deceased
taken by Tribunal is on higher side. 1/3rd was deducted
towards personal income but deceased was bachelor and
thus 50% ought to have been deducted. Interest at 8%
awarded by the Tribunal is to be modified. In this regard,
learned counsel for appellant/insurer places reliance on
the judgments of Co-ordinate Bench of this Court in Shri
Ashok K.R. vs. Ganesh K.R., 2011 LawSuit(Kar)
1076, Shriram General Insurance Company Limited
vs. Muthuraj and Another, MFA No. 8063 of 2011.
11. Thus, respondent No.2-insurer prayed for
allowing his appeal.
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12. Learned counsel for respondents-claimants,
Sri P.G.Mogali would submit that since form beginning in
the complaint and also in oral evidence, it is stated that
the deceased was working as cleaner in the offending
lorry. There is little delay in lodging the complaint because
deceased was missing and his dead body was traced two
days afterwards. There cannot be any document to show
the appointment letter for the post of cleaner. There is an
oral evidence and police paper. Owner has not challenged
the charge-sheet and FIR. There is option for claimant to
choose either M.A.C.T. or Workmen’s Compensation
Tribunal. Thus, claimant has opted M.A.C.T. and thus
prayed for dismissal of appeal.
13. Learned counsel for respondents would further
submit that deceased was earning ₹500/- per day as
wages and thus the income of deceased taken by the
Tribunal is on lower side. Future prospectus at 10% was
added by the Tribunal, which is on lower side and contrary
to the ratio laid down by the Hon’ble Apex Court in catena
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of decisions. The claimants have lost their only son in his
young age. The multiplier ought to have been adopted by
the Tribunal is 18 at the time of assessing dependency.
Hence, prayed for allowing the MFA
CROB.No.100086/2022.
14. Learned counsel for respondent/claimant places
reliance on the judgments of Co-ordinate Bench of this
Court in National Insurance Company Limited, by its
Branch Manager, Bellary vs. Ningamma and Others,
cited as 2021(2)KCCR 1478, Oriental Insurance
Company Limited vs. Ullavappa and Another,
Hanumanthappa vs. Shivakumar and Others,
Oriental Insurance Company Limited vs. Dyavamma
and Others cited as Civil Appeal No. 937/2013,
North West Karnataka Road Transport Corporation
vs. Kulsumbi cited as MFA No. 8377/2004 decided
on 7.09.2010, Branch Manager, National Insurance
Company Limited vs. Vijay Praveen Cutinha and
Another cited as 2024 (3) kar. L. R 333.
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15. Having heard arguments of both sides, verifying
appeal papers and Trial Court records, the points that
arise for consideration are:
“1. Whether the appellant-insurer would
prove that deceased was not an employee-
cleaner under respondent No.1?
2. Whether the claimants are entitled for
enhancement of compensation?
3. Whether saddling liability on insurance
company is proper?”
16. Finding of this Court on point No.1 is answered
in NEGATIVE and point Nos.2 and 3 are answered in
AFFIRMATIVE answered in for the following:
REASONS
17. The established facts before the Tribunal is that
on 15.09.2014 at about 10.00 p.m., respondent No.1 was
the owner-cum-driver of the offending lorry bearing
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No.KA-19/B-7521; he being owner-cum-driver was
proceeding from Hosakera to Ilkal near SBC canal 24 K.M.;
at that time the offending vehicle turtle on the canal. The
deceased-Basavaraj who was traveling in the offending
vehicle also fell into the canal. His dead body was found
two days after the incident. The incident has taken place
on 15.09.2014 at 10.00 p.m.; whereas the complaint is
lodged on 16.09.2014 at 3.00 p.m., by one Dharmanna
S/o. Mallappa Pujari said to be one of the inmates of
offending lorry.
18. It is stated in the complaint that on 15.09.2014
at 7.00 p.m., respondent No.1 being the driver of lorry
bearing No. KA-19/B-7521 has brought the vehicle to
stone quarry of Gannisab, Ilkal. The deceased Basavaraj
was cleaner in the lorry. He also came for loading. After
loading the vehicle at 9.00 p.m., their vehicle left; at that
time he also steps into the lorry and sat in the cabin along
with Basavaraj. At about 10.00 p.m., when lorry came
near SBC canal 24 K.M., the driver i.e., respondent No.1
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lost control over the lorry and drove it rashly and
negligently on the side of canal in a mud road and thus
lorry turtle on SBC canal in a mud road; he and driver of
the lorry by swimming came out from the canal; but
Basavaraj has not come back and they searched for him;
but they did not found him; he sustained injuries near his
elbow of left hand and he informed these facts in his
house and then lodged the complaint belatedly. On
17.09.2014 after tracing the dead body of Basavaraj in
canal, he has given further statement.
19. The claimants have examined P.W.2 who is the
uncle of deceased. P.W.2 in his affidavit evidence stated
that he is the eyewitness to the incident. According to him,
he was going on the same road on that day in his vehicle
behind the offending lorry. The cross-examination of P.W.2
reveals that he was following the lorry, after lorry turtle,
he came to the spot and it was 10.00 p.m., there was
darkness. Lorry was not found at the spot. Thereafter, he
examined the canal and noticed that the lorry had already
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fallen into the canal. There was only cart road at that
place. In this regard, he denied the suggestion that he has
not seen the incident.
20. As per the complaint and charge-sheet
averments, the deceased was cleaner in the lorry. P.W.1 &
P.W.2 have stated that deceased was cleaner in the lorry.
In this regard, respondent No.1 in his objection statement
has specifically denied that deceased was working as
cleaner under him in that lorry. But he has not stepped
into the witness box to assert his contention.
21. The complaint averments, evidence of P.W.2
and admission of respondent No.2 in the objection
statement establish that deceased was traveling in the
offending lorry. From the P.M. report, inquest report,
complaint and also other documents, it is also clear that
he died due to the accident that has been caused by the
offending lorry.
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22. Admittedly, there was valid insurance policy as
on the date of accident. Furthermore, it is also admitted
that respondent No.1 was having valid and effective
license to drive the lorry.
23. Learned counsel for claimant relies upon the
judgment of Co-ordinate Bench of this Court in Oriental
Insurance Company Ltd., V. Ulavappa and Another1.
Para Nos.3 and 7 of the said judgment read as follows:
“3. The respondent-claimant filed the claim
petition on 26.02.2007 seeking huge
compensation amount alleging that he
sustained grievous injuries because of the
vehicular accident that happened in the
course of employment. The appellant-
Insurance company had resisted the claim by
filing the Written Statement specifically
taking up a contention as to the absence of
’employer-employee relationship’ and also it
had disputed the quantum of wages. The
respondent-owner of the vehicle neither filed
the Written Statement nor participated in the
proceedings.
1
2018(4) KCCR 3596
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7. I have carefully considered the deposition
of PW-1 who is the Claimant. Apparently he
is a rank illiterate. His signature made in
Kannada language itself is the testimony of
this. He has specifically admitted that he has
never seen the owner of the vehicle. But that
alone is not sufficient to disprove the
employer-employee relationship inasmuch as
ordinarily the cleaners are engaged by the
drivers for and on behalf of the vehicle
owne₹ It is also a common knowledge which
this Court presumes acting under Section
114 of the Evidence Act, 1872 that no
appointment letters would be ordinarily
issued to the cleaners except where the
owner has a fleet of vehicles and the
business is normed. That is not the case
here. Therefore, absence of document may
not necessarily disprove the presence of
employer-employee relationship.”
24. Even in the present case, the claimants cannot
obtain appointment letter to show that deceased was
working as cleaner in the lorry. They have to depend upon
the oral evidence.
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25. The respondent No.1 in the objection statement
denied the petition averments in toto except admitting
that he was the owner of the offending vehicle. After filing
the objection statement, he has not participated in the
trial.
26. Learned counsel for claimants relied upon the
judgment in National Insurance Co. Ltd., by its Branch
manager, Bellary V. Ningamma and Others2, wherein
at para No.17 it is held as follows:
“17. If the law laid down by the Apex Court qua
the facts of the case on the hand is noticed, it
would become unmistakably clear that the
circumstances of the insurance company not
challenging the charge sheet and later
contending that there was no involvement of the
vehicle and subsequent acquittal of the driver of
the offending bus by the criminal Court, all of
which will cause no impediment to the claim of
the claimants. Hence, the argument of the
learned Counsel for the insurance company that
the death of the deceased had occurred due to2
2021 (2) KCCR 1478
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lightening and not due to the road traffic
accident, is rejected”.
27. Even in the present case also, the owner-cum-
driver and insurer have not challenged the charge-sheet.
28. There is no inordinate delay in lodging the
complaint. Within 24 hours of the incident, it was lodged.
When people were searching the deceased, there is every
possibility that they could not give importance of lodging
the complaint immediately. Hence, delay in lodging the
complaint itself is not fatal to the case of claimants.
29. Considering some of these aspects, the Tribunal
rightly held that deceased was traveling in lorry as
cleaner.
30. With this background, Section 147(5) of M.V.
Act and Rule 100 of Karnataka M.V. Rules are to be
examined. They read as under:
“147. Requirements of policies and limits of
liability.–(1) (extract the sub-section 1
completely) ……………….
(2)……………….
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(3)……………….
(4)……………….
(5) Where a cover note issued by the
insurer under the provisions of this Chapter or the
rules made there under is not followed by a policy of
insurance within the specified time, the insurer shall,
within seven days of the expiry of the period of the
validity of the cover note, notify the fact to the
registering authority or to such other authority as the
State Government may prescribe.”
“Rule 100. Carriage of persons in goods
vehicle.- (1) Subject to the provisions of this rule,
no person shall be carried in a goods vehicle:
Provided that the owner or the hirer or a bona
fide employee of the owner or the hirer of the
vehicle carried free of charge or a police officer in
uniform travelling on duty may be carried in a goods
vehicle, the total number of persons so carried, –
(i) in light transport goods vehicle having
registered laden weight less than 990 kgs.
not more than one;
(ii) in any other light transport goods vehicle not
more than three; and
(iii) in any goods vehicle not more than seven:
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Provided that the provisions of sub-clauses (ii)
and (iii) of the above proviso shall not be applicable
to the vehicles plying on inter-State routes or the
vehicles carrying goods from one city to another
city.”
31. A plain reading of Rule 100(1) of M.V. Rules
makes it very clear that the bonafide employee of the
owner of the vehicle may be carried in a goods vehicle
with free of cost. Admittedly, this is a goods vehicle. It is
established that the deceased is cleaner/employee under
owner.
32. Hence, there is statutory coverage as per
Section 147(1) and (5) of M.V. Act R/w Rule 100 of M.V.
Rules. An insurer issuing a policy of insurance under
Section 147 of M.V. Act shall be liable to indemnify the
person or classes of persons specified in the policy in
respect of any liability which the policy purports to cover in
case of that person or those classes of persons. Hence, the
risk of cleaner is covered under the policy.
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33. At this stage, learned counsel for
appellant/insurer, relying on the judgment of Muthuraj of
S.K. case, cited supra, would submit that the insurer is
liable to pay only under Workmen’s Compensation Act and
not under Motor Vehicles Act. He also places reliance on
the aforesaid judgment, Shri Ashok‘s case cited supra,
at para No. 12, held as follows:
“[12] In our view, the ratio of the said judgment is
squarely applicable to the facts at hand. We are of
the opinion that an account of amputation of his
right leg below knee, he is rendered unfit for the
work of a driver, which he was performing at the
time of the accident resulting in the said
disablement. Therefore, he has lost 100% of his
earring capacity as a lorry driver, more so, when
he is disqualified from even getting a driving
licence under the Motor Vehicles Act.
Though under Section 166 of the Motor
Vehicles Act. the compensation can be
determined based on the disability, however, in
case of workman, when the statute provide a
specific procedure as regard to the
determination of the compensation in
consonance with the injury specified therein,
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any determination contrary to that, could be
Section 4 read with Schedule-I of the
Workmen’s Compensation Act.
However, in case the Tribunal finds that the
disability suffered by the employee in the
course of his employment, is much more than
the scheduled disability, it is open to the
Tribunal to assess the same, when it comes to
the question of indemnifying the liability of the
insured, the liability of the insurer limits to the
statutory liability, as reading of Section 147 of
the Motor Vehicles Act with Section 4 and
Schedule-I of the Workmen’s Compensation Act
restrict the determination of the compensation
payable by the insurer only to the extent as
provided under the provisions of Section 4. The
liability of the insurer is a statutory liability, as
such, if the statute requires the determination
of the compensation in a particular maimer, it
cannot be said that the insurer could be made
liable to pay beyond the scope of the provisions
of Section 4. It is in this regard, I find that the
liability of the insurer has to be limited to as
provided under Section 4 of the W.C. Act, but
any excess determination made that has to be
paid by the employer. In this case, if it is
treated that the disability suffered by the
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claimant is more than the scheduled disability,
it is open to the claimant to seek compensation
as against the owner in accordance with law.
In the light of the above observations, M.F.A.
Cr.Ob. No. 106/2008 filed by the insurer is
partly allowed. M.F.A. No.12127/2007 filed by
the claimant is dismissed. Claimant is entitled
to 50% of the compensation payable for the
permanent disability under Section 4, multiplied
by 16 x 44, by taking the income of the
claimant at ₹ 4,000/- per month, which would
come to ₹ 1,68,960/- with interest @ 12% per
annum, in accordance with law.”
34. On careful perusal of the above said judgments
of co-ordinate benches of this court, it is noticed that there
was no policy coverage as on the date in those cases. In
this regard, learned counsel for respondents/claimants
relied on the judgment of Oriental Insurance Company
Limited vs. Dyavamma and Others case cited supra,
wherein, by relying upon Section 167 of the M.V. Act, it is
held as follows:
“6. The challenge raised by the Appellant-Insurance
Company is based on Section 167 of the Motor
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Vehicles Act, 1988, which is being extracted
hereinunder:
167. Option regarding claims for
compensation in certaincases.–
Notwithstanding anything contained in the
Workmen’s Compensation Act, 1923 (8 of
1923) where the death of, or bodily injury to,
any person gives rise to a claim for
compensation under this Act and also under the
Workmen’s Compensation Act, 1923, the
person entitled to compensation may without
prejudice to the provisions of Chapter X claim
such compensation under either of those Acts
but not under both.
It is the vehement contention of the Learned
Counsel for the Appellant, that the Respondents
had been awarded compensation under the
Workmen’s Compensation Act, 1923, and as such,
they were precluded from raising a claim for
compensation under the Motor Vehicles Act, 1988.
Relying on Section 167, extracted above, it was
pointed out, that an option was available to the
claimants to seek compensation either under the
Workmen’s Compensation Act, 1923, or the Motor
Vehicles Act, 1988. The claimants, according to
Learned Counsel, had exercised the said option to
seek compensation under the Workmen’s
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Compensation Act, 1923. In this behalf it was
pointed out, that the claimants having accepted
compensation under the Workmen’s Compensation
Act, 1923, were precluded by Section 167 of the
Motor Vehicles Act, 1988, to seek compensation (on
account of the same accident), under the Motor
Vehicles Act, 1988. In order to buttress the
aforesaid submission, Learned Counsel for the
Appellant-Insurance Company has placed reliance
on a decision rendered by this Court in National
Insurance Co. Ltd. v. Mastan and Anr.
MANU/SC/2367/2005: (2006) 2 SCC 641. Pointed
reliance was placed on the following observations
recorded therein:
33. On the establishment of a Claims Tribunal in
terms of Section 165 of the Motor Vehicles Act,
1988, the victim of a motor accident has a right to
apply for compensation in terms of Section 166 of
that Act before that Tribunal. On the establishment
of the Claims Tribunal, the jurisdiction of the Civil
Court to entertain a claim for compensation arising
out of a motor accident, stands ousted by Section
175 of that Act. Until the establishment of the
Tribunal, the claim had to be enforced through the
Civil Court as a claim in tort. The exclusiveness of
the jurisdiction of the Motor Accidents Claims
Tribunal is taken away by Section 167 of the Motor
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Vehicles Act in one instance, when the claim could
also fall under the Workmen’s Compensation Act,
1923. That Section provides that death or bodily
injury arising out of a motor accident which may
also give rise to a claim for compensation under the
Workmen’s Compensation Act, can be enforced
through the authorities under that Act, the option in
that behalf being with the victim or his
representative. But Section 167 makes it clear that
a claim could not be maintained under both the
Acts. In other words, a claimant who becomes
entitled to claim compensation both under the
Motor Vehicles Act 1988 and under the Workmen’s
Compensation Act because of a motor vehicle
accident has the choice of proceeding under either
of the Acts before the concerned forum. By
confining the claim- to the authority or Tribunal
under either of the Acts, the legislature has
incorporated the concept of election of remedies,
insofar as the claimant is concerned. In other
words, he has to elect whether to make his claim
under the Motor Vehicles Act 1988 or under the
Workmen’s Compensation Act 1923. The emphasis
in die Section that a claim cannot be made under
both the enactments, is a further reiteration of the
doctrine of election incorporated in the scheme for
claiming compensation. The principle “where, either
of two alternative tribunals are open to a litigant,
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each having jurisdiction over the matters in
dispute, and he resorts for his remedy to one of
such tribunals in preference to the other, he is
precluded, as against his opponent, from any
subsequent recourse to the latter” [see R.V. Evans
(1854) 3 E & B 363] is fully incorporated in the
scheme of Section 167 of the Motor Vehicles Act,
precluding the claimant who has invoked the
Workmen’s Compensation Act from having resort to
the provisions of the Motor Vehicles Act, except to
the limited extent permitted therein. The claimant
having resorted to the Workmen’s Compensation
Act, is controlled by the provisions of that Act
subject only to the exception recognized in Section
167 of the Motor Vehicles Act.
34. On the language of Section 167 of the Motor
Vehicles Act, and going by the principle of election
of remedies, a claimant opting to proceed under the
Workmen’s Compensation Act cannot take recourse
to or draw inspiration from any of the provisions of
the Motor Vehicles Act 1988 other than what is
specifically saved by Section 167 of the Act. Section
167 of the Act gives a claimant even under the
Workmen’s Compensation Act, the right to invoke
the provisions of Chapter X of the Motor Vehicles
Act 1988. Chapter X of the Motor Vehicles Act 1988
deals with what is known as ‘no fault” liability in
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case of an accident. Section 140 of the Motor
Vehicles Act, 1988 imposes a liability on the owner
of the vehicle to pay the compensation fixed
therein, even if no fault is established against the
driver or owner of the of the vehicle. Sections 141
and 142 deal with particular claims on the basis of
no fault liability and Section 143 re-emphasizes
what is emphasized by Section 167 of the Act that
the provisions of Chapter X of the Motor Vehicles
Act, 1988, would apply even if the claim is made
under the Workmen’s Compensation Act. Section
144 of the Act gives the provisions of Chapter X of
the Motor Vehicles Act 1988 overriding effect.”
35. In the instant case also, the claimants have
opted the Motor Vehicles Act legislation instead of
Workmen’s Compensation.
36. Furthermore, as per the policy, the extra
premium of ₹100 to cover PA owner-driver and ₹50 legal
liability to driver as per IMT-28 is paid.
IMT-28 reads as follows:
“IMT. 28. LEGAL LIABILITY TO PAID DRIVER
AND/OR CONDUCTOR AND/OR CLEANER
EMPLOYED IN CONNECTION WITH THE
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OPERATION OF INSURED VEHICLE (For all
Classes of vehicles.)In consideration of an additional premium of Rs.
25/- notwithstanding anything to the contrary
contained in the policy it is hereby understood and
agreed that the insurer shall indemnify the insured
against the insured’s legal liability under the
Workmen’s Compensation Act, 1923, the Fatal
Accidents Act, 1855 or at Common Law and
subsequent amendments of these Acts prior to the
date of this Endorsement in respect of personal
injury to any paid driver and/or conductor and/or
cleaner whilst engaged in the service of the
insured in such occupation in connection with the
vehicle insured herein and will in addition be
responsible for all costs and expenses incurred
with its written consent.
Provided always that
(1) this Endorsement does not indemnify the
insured in respect of any liability in cases where
the insured holds or subsequently effects with any
insurer or group of insurers a Policy of Insurance
in respect of liability as herein defined for insured’s
general employees;
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(2) the insured shall take reasonable precautions
to prevent accidents and shall comply with all
statutory obligations;
*(3) the insured shall keep record of the name of
each paid driver conductor cleaner or persons
employed in loading and/or unloading and the
amount of wages and salaries and other earnings
paid to such employees and shall at all times allow
the insurer to inspect such records on demand.
(4) in the event of the Policy being cancelled at the
request of the insured no refund of the premium
paid in respect of this Endorsement will be
allowed.
Subject otherwise to the terms conditions
limitations and exceptions of the Policy except so
far as necessary to meet the requirements of the
Motor Vehicles Act, 1988.
*In case of Private cars/motorised two wheelers
(not used for hire or reward) delete this para.”
37. Thus, according to it, an additional premium of
₹25 is to be paid in respect of insurer’s legal liability under
Workmen’s Compensation Act for each employee. In the
instant case, as stated above, ₹50 is paid, i.e., towards
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paid driver and also towards cleaner. Hence, liability of the
claimant is covered under the covered by paying additional
premium. Hence, the insurer cannot take the plea that
deceased is not an employee-cleaner under respondent
No.1, and he is not covered under the policy. The insurer
is debarred from taking such plea when they have
themselves specified in the policy that as per subject to
IMT endorsement number 28, ₹50 premium is paid, and
thus, the legal liability of cleaner is covered in this case.
Hence, the above citations relied by learned counsel for
insurer are not applicable to the facts of the present case.
38. As far as quantum is concerned, the Tribunal
has awarded compensation of ₹11,22,000/- under head
‘loss of dependency’ by deducting 1/3rd of the income of
deceased towards his personal expenses. But, the
deceased left behind his parents as dependants and he
died bachelor. Hence, 50% of the income of deceased is to
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be deducted towards his personal expenses as per Sarla
Verma & Ors. V. Delhi Transport Corp.& Anr.3 case.
39. The deceased was aged about 28 years at the
time of accident and thus, multiplier-17 adopted by
Tribunal is proper but, the future prospectus at 10% taken
is on lower side. As per National Insurance Co. Ltd. Vs.
Pranay Sethi4, the future prospects should be taken at
40% considering the age of deceased. The income taken
by the Tribunal is proper. Thus, claimants are entitled for
compensation of ₹7500 + 40% X 12 X 17 X 50% =
₹10,71,000/- under head ‘loss of dependency’.
40. The Tribunal has not awarded compensation
under the head ‘filial consortium’. In view of the decision
of the Hon’ble Apex Court in the case of Pranay Sethi’s
case cited supra and Magma General Insurance Co.
Ltd. V. Nanu Ram & Others5, the claimants are entitled
for ₹40,000/- each under head ‘loss of filial consortium’,
3
AIR 2009 SC 3104
4 (2017)16 SCC 680
5 2018 ACJ 2782
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along with 10% + 10% escalation charges. Accordingly,
₹96,000/- (₹40,000 + 10% + 10%) is awarded under the
head ‘filial consortium’.
41. The Tribunal has awarded compensation of
₹20,000/- under head ‘loss of affection’, which is already
included under the head ‘loss of consortium’. The
compensation awarded under head ‘loss of estate’ at
₹20,000/-, under head ‘funeral expenses’ at ₹20,000/-
and under head ‘transportation’ at ₹5000/- needs to be
modified.
42. Hence, the claimant is entitled for the following
modified compensation:
Sl.No. Heads Compensation Compensation
awarded by awarded by
the Tribunal this Court1 Loss of dependency ₹11,22,000/- ₹10,71,000/-
2 Loss of Filial Consortium – ₹96,000/-
3 Loss of estate ₹20,000/- ₹18,000/-
4 Transportation and ₹20,000/- ₹18000/-
Funeral expenses
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5 Towards loss of love ₹20,000/- –
and affection is already
included under the
head' loss of
consortium'
6 Transportation ₹5,000/- -
Total ₹11,22,000/- ₹12,03,000
43. Therefore, the claimants are entitled for total
compensation of ₹12,03,000/- as against ₹11,22,000/-
awarded by the Tribunal.
44. In the result, I proceed to pass the following;
ORDER
a) MFA No.100214/2019 filed under Section 173(1)
of the Motor Vehicles Act, 1988 by the Insurance
Company is allowed in part.
b) MFA CROB. No.100086/2022 filed under Order XLI
Rule 22 of CPC read with Section 173(1) of Motor
Vehicles Act, 1988 is allowed in part.
c) Judgment and award dated 12.06.2018 in MVC
No.308/2015 on the file of Senior Civil Judge &
M.A.C.T., Kushtagi is modified holding that
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claimant is entitled for total of ₹12,03,000/- as
against ₹11,22,000/- awarded by the Tribunal.
d) The compensation shall carry interest at 6% per
annum from the date of petition till realization.
e) The Insurance Company shall deposit the
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 apportionment, disbursement and deposit
shall be as per the order of the Tribunal.
g) No order as to costs.
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.: 2 Sl No.: 20
