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2025 Supreme(Online)(KAR) 2804
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 27TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.21514 OF 2012 (MV)
BETWEEN:
THE NEW INDIA ASSURANCE COMPANY LTD., DIVISIONAL OFFICE, CLUB ROAD, BELAGAVI, BY ITS MOTOR THIRD PARTY CLAIMS HUB, 2ND FLOOR, SRINATH COMPLEX, NEW COTTON MARKET, HUBLI-580029, REPRESENTED BY ITS REGIONAL MANAGER.
…APPELLANT (BY SRI RAVI G. SABHAHIT, ADVOCATE.)
AND:
1. SMT. SUMITRA W/O. ADEVEPPA WARALAGATTI, AGED: 32 YEARS, OCC: COOLIE, R/O. KADABI, TQ: SAUNDATTI, DIST: BELAGAVI.
Digitally signed by MALLIKARJUN 2. SHIVALEELA RUDRAYYA KALMATH Location: HIG H D/O. ADIVEPPA WARALAGATTI, COURT OF KARNATAKA AGED:16 YEARS, OCC: STUDENT, 3. RAMESH S/O. ADIVEPPA WARALAGATTI, AGED:14 YEARS, OCC: STUDENT, 4. GEETHA D/O. ADIVEPPA WARALAGATTI, AGED:11 YEARS, OCC: STUDENT, 5. DARSHAN S/O. ADIVEPPA WARALAGATTI, AGED: 07 YEARS, OCC: STUDENT, (THE RESPONDENTS NO.2 TO 5 ARE MINOR REPRESENTED BY THEIR NATURAL MOTHER MINOR GUARDIAN RESPONDENT NO.1
6. SHIVAPPA S/O. LANGAMAPPA WARALAGATTI, AGED: 72 YEARS, OCC: NIL, R/O. KADABI, TAL: SAUNDATTI, DIST: BELAGAVI.
7. LAKKAPPA S/O. KAREPPA KALIWAD, AGED: MAJOR, OCC: AGRICULTURE/BUSINESS, R/O: MADAMAGERI, TQ: SAUNDATTI, DIST: BELAGAVI. …RESPONDENTS (BY SRI N.P. VIVEKMEHTA, ADVOCATE FOR C/R1 AND R6;
R2 TO R5 ARE MINORS REP. BY R1;
SRI SHRIHARSH A.NEELOPANT, ADVOCATE FOR R7.)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, PRAYING TO SET SIDE THE JUDGMENT AND AWARD DATED 07.01.2012, PASSED IN MVC NO.2713/2010 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE & MEMBER AMACT, SAUNDATTI, AND ALSO TO GRANT COSTS AND ETC.,.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) This appeal is filed by the Insurance Company challenging the judgment and award dated 07.01.2012, passed by the Prl. Senior Civil Judge and Additional MACT, Saundatti, in MVC No.2713/2010, on the ground that the deceased Adiveppa S/o Shivappa Waralagatti was sitting on a mudguard of the Tractor and met with an accident. Therefore, under these circumstances, the insurance company is not liable to pay compensation. But the owner alone is liable to pay compensation.
2. The undisputed facts in this case are that, the deceased/Adiveppa was travelling by sitting on mudguard of the Tractor and while travelling, he fell on the ground and the wheel of the Tractor and Trailer ran over the deceased and died at the spot. The issue is squarely covered by the full Bench decision of this Court in the case of Gadhilingappa @ Gadhilinga and another vs. K. Guleppa and others, [ILR 2021 KAR 3377]. Therefore, the insurance company is not liable to pay compensation and hence, the owner alone is liable to pay compensation.
3. Learned counsel for the respondents/claimants submitted that an order of pay and recovery be made and places reliance on the judgment of Hon’ble Apex Court in Civil Appeal No.7179/2022 (@SLP (CIVIL) No.14988/2018) in the case of V. Renganathan V/s The Branch Manager United India dated 11.10.2022.
4. On the other hand, learned counsel for appellant insurance company places reliance on the judgment of this Court in MFA No.102485/2014 dated 15.01.2025 between Dadapeera and Mallesh M
5. This Court in the other case stated supra has not ordered for pay and recovery.
6. But the Hon’ble Supreme Court under the very same facts and circumstances wherein the claimant was travelling by sitting on the mudguard sustained injuries and under such circumstances exonerated the insurance company to pay compensation but an order of pay and recovery is made.
7. Further, this Court in the case of Shivaraj vs.
Rajendra and another, reported in 2018 ACJ 2755 has ordered for pay and recovery in the case the claimant was sitting on the mudguard.
8. Therefore, the issue is covered by the judgment of the Hon’ble Supreme Court in the case of V.Renganathan sated supra. Therefore, the benefit of pay and recovery is extended to the claimants in this case. Hence, the appeal filed by the insurance company is liable to be allowed in part exonerating the insurance company to pay compensation by fastening liability on the owner of the tractor. However, in view of the dictum of Hon’ble Supreme Court in the case of V.Rangnathan (supra) and Shivaraj (supra), the benefit of pay and recovery is extended to the claimants, thereby directing the insurance company to pay the compensation at the first instance and then recover it from the owner of the tractor and trailer bearing No.KA-
24/T-3870, KA-24/T-4637 and KA-24/T-1161.
9. However, the insurance company is at liberty to file execution petition before the jurisdictional executing Court as against the owner of the offending vehicle and may seek attachment of movables or immovable properties or both, till recovery is made and also the recovery process can be as per the decision of the Hon’ble Supreme Court in ORIENTAL INSURANCE CO. LTD., VS. NANJAPPAN AND OTHERS, reported in 2004 AIR SCW 952
10. Therefore, the insurance company is directed to deposit the compensation within eight weeks from the date of receipt of a certified copy of this judgment at the first instance and then recover it from the owner of offending vehicle as discussed above. In the result, I proceed to pass the following:
ORDER
i) The appeal is allowed in part.
ii) The judgment and award dated
07.01.2012, passed by the Prl. Senior Civil Judge and Additional MACT, Saundatti, in MVC No.2713/2010, is modified holding that the owner of the offending vehicle is liable to pay the compensation.
iii) The liability to pay compensation fastened on the appellant insurance company is set aside.
iv) However, th
