HOPON HASDA @ APPANNA vs M/S C I CONCRETE INDIA PRIVATE LIMITED

HC-KAR
NC: 2026:KHC:55781
MFA No. 928 of 2019

CNR: KAHC010029372019




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

TH
DATED THIS THE 6 DAY OF OCTOBER, 2026


BEFORE

THE HON'BLE MS. JUSTICE TARA VITASTA GANJU

MISCELLANEOUS FIRST APPEAL NO. 928 OF 2019 (MV-I)

BETWEEN:

HOPON HASDA @ APPANNA,
S/O LATE CHUNDA,
AGED ABOUT 53 YEARS,
R/AT DIGHI, JAGADALA,
BAMANGOLA, MALDA-732 138
WEST BENGAL.
…APPELLANT
(BY SRI. SHRIPAD.V.SHASTRI., ADVOCATE)

AND:

1. M/S. C I CONCRETE INDIA PRIVATE LIMITED,
NO.214/C, DODDA NEKKUNDI,
INDUSTRIAL AREA, WHITEFIELD,
BANGALORE-48.

2. HDFC ERGO GENERAL INSURANCE CO. LTD.,
I FLOOR, HM GENEVA TOWER,
CUNNINGHAM ROAD,
BENGALURU-560 052.
…RESPONDENTS
(BY SRI. H.S.LINGARAJU., ADVOCATE FOR R2;
V/O/DTD:23.01.2024-NOTICE TO R1 IS HELD SUFFICIENT)

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 24/02/2018, PASSED IN MVC
NO.8122/2016, ON THE FILE OF THE III ADDITIONAL JUDGE &
MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU
(SCCH-18), PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.











Digitally signed
by JAI JYOTHI J
Location: HIGH
COURT OF
KARNATAKA

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HC-KAR
NC: 2026:KHC:55781
MFA No. 928 of 2019

CNR: KAHC010029372019



THIS APPEAL IS COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MS. JUSTICE TARA VITASTA GANJU

ORAL JUDGMENT

1. The challenge in the present appeal is to an order
dated 24.02.2018 passed by the III Addl. Small Causes
Judge & XXIX ACMM, Bengaluru (hereinafter referred to as
the ‘Impugned Award’). By the Impugned Award, the claim
petition filed by the appellant/claimant for compensation
was allowed and the learned Tribunal has awarded
compensation in a sum of Rs.4,03,100/- along with interest
at 9% per annum from the date of petition till the date of
realization. The challenge in the present appeal has been
filed by the appellant/claimant seeking enhancement.

2. The facts are not in dispute. On 20.11.2016, the
appellant/claimant was walking on the side of Divyashree
Techno Park site, on Yamalur Main Road near Landmark
Software Company and at that time a mixer lorry bearing
Registration No.KA-41-4862 driven by its driver at a high
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HC-KAR
NC: 2026:KHC:55781
MFA No. 928 of 2019

CNR: KAHC010029372019


speed in a rash and negligent manner, hit the
appellant/claimant from behind. Due to the impact, the
appellant/claimant sustained grievous injuries which led to
his hospitalization for four days.

3. A claim petition was filed by the appellant/claimant
under Section 166 of the Motor Vehicles Act, 1988
(hereinafter referred to as the ‘MV Act’) seeking
compensation. It was stated therein that prior to the
accident, the appellant/claimant aged about 50 years was
hale and healthy and was working as a mason and earning
a sum of Rs.800/- per day.

4. The service of the petition was effected on the
respondent/owner of the vehicle and the Insurance
Company. Respondent No.1/owner though served, did not
appear and was proceeded with ex-parte. The claim petition
was only contested by the respondent No.2/Insurance
Company who appeared through counsel and filed its
written statement.
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HC-KAR
NC: 2026:KHC:55781
MFA No. 928 of 2019

CNR: KAHC010029372019


5. It was contended by the Insurance Company that the
driver of the lorry did not hold a valid and effective driving
licence at the time of the accident. Further, the lorry also
had no valid permit and fitness certificate and hence there
being breach of permit conditions of the policy, the
Insurance Company had no obligation to pay any
compensation to the appellant/claimant.

6. Based on the pleadings of the parties, the following
issues were framed by the learned Tribunal:
“1. Whether the petitioner proves that he had
sustained grievous injuries in an accident that was
occurred due to rash and negligent driving of the
driver of the concrete mixer lorry bearing Reg. No.KA-
41- 4862 on 20.11.2016 at about 6.30 a.m. near t
Land Mark Software Company, Divya Shree, Techno
Park, Yamalur Main Road, Bengaluru?
2. Whether the petitioner is entitled for compensation
as prayed for? If so, at what rate? From whom?
3. What order or award?”

7. The appellant/claimant examined himself as PW1 and
examined his Doctor as PW2. Documents were marked as
Exhibits P1 to P13, which included the FIR (Ex.P1), Mahazar
(Ex.P2) Sketch (Ex.P3), IMV report (Ex.P4), wound
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NC: 2026:KHC:55781
MFA No. 928 of 2019

CNR: KAHC010029372019


certificate (Ex.P5), charge sheet (Ex.P6), discharge
summary (Ex.P7) medical bills (Ex.P8) prescriptions
(Ex.P9), inpatient record (Ex.P10), outpatient record
(Ex.P11 & 12), X-Ray (Ex.P13) and X-Ray report
(Ex.P13(a)) filed by treating Doctor. The
respondent/Insurance Company examined one its officers
as RW1 and filed the policy copy (Exhibit R1), notice (Exhibit
R2) and notice (Exhibit R3).

8. Based on the evidence produced, the learned Tribunal
found that the negligence was proved and awarded
amounts for pain and suffering, attendant charges, loss of
amenities and future medication. In addition, amounts
towards medical expenses and loss of future income was
awarded by taking the notional income of the
appellant/claimant at Rs.7,500/- and disability at 13% as
follows:
HEADS COMPENSATION
Loss of future 7500 x 12 x 11 x 13/100 =
income 1,28,700/-

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HC-KAR
NC: 2026:KHC:55781
MFA No. 928 of 2019

CNR: KAHC010029372019


9. Accordingly, the following compensation was awarded
by the learned Trial Court:
SL.
No.
Compensation heads Amount
1. Pain and suffering Rs. 40,000/-
2. Loss of income during
laid period and rest
period
Rs. 22,500/-
3. Medical expenses Rs.1,71,900/-
4. Loss of future income Rs.1,28,700/-
5. Loss of amenities Rs. 10,000/-
6. Attendant, conveyance Rs. 10,000/-
charges
7. Future medication Rs. 20,000/-
Total Rs.4,03,100/-

9.1 Thus, Rs.4,03,100/- was awarded along with interest
at 9% from the date of the petition till the date of
realization. However, although the calculation comes to
Rs.4,03,100/-, the Impugned Award wrongly refers to in the
order part of the award as Rs.4,13,100/-. In addition, and
in view of the fact that there was no valid permit, the
learned Tribunal fastened the liability on respondent
No.1/owner of the offending vehicle.
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NC: 2026:KHC:55781
MFA No. 928 of 2019

CNR: KAHC010029372019


10. As stated above, the challenge in the present appeal
is by the appellant/claimant. The respondent No.1/owner
although served, has not appeared before this Court.

11. Learned counsel for the appellant raises two grounds
for challenge. Firstly, he submits that the notional income
for the year 2016 was Rs.9,500/- and that the award under
non-pecuniary heads is on the lower side. Secondly, he
submits that in view of the settled position of law in
Shamanna and another Vs. The Divisional Manager,
1
Oriental Insurance Co.Ltd. and others , even if there
was no valid permit, the Insurance Company should not be
exonerated of its liability and the order of pay and recovery
ought to have been passed.

12. Learned counsel for the respondent No.2/Insurance
Company fairly submits that the settled legal possession is
as stated by the appellant/claimant and that the notional
income for the year 2016 was Rs.9,500/- per month.

1
(2018) 9 SCC 650
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NC: 2026:KHC:55781
MFA No. 928 of 2019

CNR: KAHC010029372019


However he submits that the other amounts awarded are in
accordance with settled principles.

13. This Court has examined the record before it. As a
result of the accident, the appellant/claimant was
hospitalized for a period of 4 days. The appellant/claimant
was aged about 52 years. The disability as awarded by the
Tribunal was 13% of the whole body. However, having
regard the injuries sustained, 15% is taken as the whole
body disability to calculate compensation towards ‘loss of
future income’. As stated above, the notional income was
wrongly taken to award compensation towards ‘loss of
future income’. Accordingly, taking Rs.9500/- as the
notional income, the ‘loss of future income’ is recalculated
as follows:
HEADS COMPENSATION
Loss of future income 9500 x 12 x 11 x 15/100 =
Rs.1,88,100/-

14. In addition, the ‘loss of income during laid-up period’
would also be enhanced to Rs.9,500 x 3 = Rs.28,500/-. The
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HC-KAR
NC: 2026:KHC:55781
MFA No. 928 of 2019

CNR: KAHC010029372019


compensation granted by the learned Tribunal towards
medical expenses, attendant charges and future
medication, pain and suffering are not being interfered with.
However, the compensation towards ‘loss of amenities’ is
enhanced to Rs.30,000/-. Thus the appellant/claimant is
entitled to the following compensation:
Sl.No. Compensation heads Amount
1. Pain and suffering Rs. 40,000/-
2. Loss of income during
laid period and rest
period
Rs. 28,500/-
3. Medical expenses Rs.1,71,900/-
4. Loss of future income Rs.1,88,100/-
5. Loss of amenities Rs. 30,000/-
6. Attendant, conveyance Rs. 10,000/-
charges
7. Future medication Rs. 20,000/-
Total Rs.4,88,500/-
COMPENSATION AWARDED BY Rs.4,03,100-00
THE TRIBUNAL
ENHANCED COMPENSATION Rs.85,400-00


15. As regards the second contention of the counsel for the
appellant/claimant that an order for pay and recovery ought
to have been passed, in view of the settled position of law
in the Shamanna case , the contention of the counsel for
the appellant/claimant is accepted.
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HC-KAR
NC: 2026:KHC:55781
MFA No. 928 of 2019

CNR: KAHC010029372019


15.1 The Supreme Court in Shamanna case reiterated that
the Insurance Company may be directed to pay the
compensation to the third-party claimant and recover the
same from the owner of the offending vehicle. The relevant
extract is set out below:
“6. As per the decision in Swaran Singh case [National
Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 :
2004 SCC (Cri) 733] , onus is always upon the
insurance company to prove that the driver had no
valid driving licence and that there was breach of
policy conditions. Where the driver did not possess
the valid driving licence and there are breach of
policy conditions, “pay and recover” can be ordered
in case of third-party risks. The Tribunal is required
to consider “as to whether the owner has taken
reasonable care to find out as to whether the driving
licence produced by the driver does not fulfil the
requirements of law or not will have to be
determined in each case”.
7. The Supreme Court considered the decision of Swaran
Singh case [National Insurance Co. Ltd. v. Swaran Singh,
(2004) 3 SCC 297 : 2004 SCC (Cri) 733] in subsequent
decision in National Insurance Co. Ltd. v. Laxmi Narain
Dhut [National Insurance Co. Ltd. v. Laxmi Narain Dhut,
(2007) 3 SCC 700 : (2007) 2 SCC (Cri) 142] , wherein this
Court held that: (SCC p. 705, para 5)
“5. The decision in Swaran Singh case [National
Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC
297 : 2004 SCC (Cri) 733] has no application to cases
other than third-party risks and in case of third-party
risks the insurer has to indemnify the amount and if
so advised, to recover the same from the insured.”


xxx xxx xxx
11. In the present case, to deny the benefit of “pay
and recover”, what seems to have substantially
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MFA No. 928 of 2019

CNR: KAHC010029372019


weighed with the High Court is the reference to
larger Bench made by the two-Judge Bench
in National Insurance Co. Ltd. v. Parvathneni
[National Insurance Co. Ltd. v. Parvathneni, (2009)
8 SCC 785 : (2009) 3 SCC (Civ) 568 : (2009) 3 SCC
(Cri) 943] which doubted the correctness of the decisions
which in exercise of jurisdiction under Article 142 of the
Constitution of India directing insurance company to pay
the compensation amount even though insurance
company has no liability to pay. In Parvathneni
case [National Insurance Co. Ltd. v. Parvathneni, (2009)
8 SCC 785 : (2009) 3 SCC (Civ) 568 : (2009) 3 SCC (Cri)
943] , the Supreme Court pointed out that Article 142 of
the Constitution of India does not cover such type of cases
and that: (SCC p. 786, para 5)
“5. If the insurance company has no liability to pay at
all, then, it cannot be compelled by order of the court
in exercise of its jurisdiction under Article 142 of the
Constitution of India to pay the compensation amount
and later on recover it from the owner of the vehicle.”
12. The above reference in Parvathneni case [National
Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785
: (2009) 3 SCC (Civ) 568 : (2009) 3 SCC (Cri) 943]
has been disposed of on 17-9-2013 [National
Insurance Co. Ltd. v. Parvathneni, (2018) 9 SCC
657] by the three-Judge Bench keeping the
questions of law open to be decided in an
appropriate case.
13. Since the reference to the larger Bench in Parvathneni
case [National Insurance Co. Ltd. v. Parvathneni, (2009)
8 SCC 785 : (2009) 3 SCC (Civ) 568 : (2009) 3 SCC (Cri)
943] has been disposed of by keeping the questions of law
open to be decided in an appropriate case, presently the
decision in Swaran Singh case [National Insurance
Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004
SCC (Cri) 733] followed in Laxmi Narain Dhut [National
Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC
700 : (2007) 2 SCC (Cri) 142] and other cases hold the
field. The award passed by the Tribunal directing the
insurance company to pay the compensation
amount awarded to the claimants and thereafter,
recover the same from the owner of the vehicle in
question, is in accordance with the judgment passed
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HC-KAR
NC: 2026:KHC:55781
MFA No. 928 of 2019

CNR: KAHC010029372019


by this Court in Swaran Singh [National Insurance Co.
Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri)
733] and Laxmi Narain Dhut [National Insurance Co.
Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700 : (2007) 2
SCC (Cri) 142] cases. While so, in our view, the High Court
ought not to have interfered with the award passed by the
Tribunal directing the first respondent to pay and recover
from the owner of the vehicle. The impugned judgment
[Shamanna v. Laxman, 2016 SCC OnLine Kar 6928] of the
High Court exonerating the insurance company from its
liability and directing the claimants to recover the
compensation from the owner of the vehicle is set aside
and the award passed by the Tribunal is restored.”
[Emphasis Supplied]
16. Hence, the appellant/claimant is entitled to a total
compensation of Rs.4,88,500/- along with interest at 9%
per annum as awarded by the learned Tribunal from the
date of petition till the date of deposit.
17. Accordingly, this Court proceeds to pass the following:

ORDER


(i) The appeal is allowed in part;
(ii) The Judgment and Award dated 24.02.2018, in
MVC.No.8122/2016, passed by the III Addl. Small
Causes Judge and XXIX ACMM, Bengaluru is
modified, awarding total compensation of
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NC: 2026:KHC:55781
MFA No. 928 of 2019

CNR: KAHC010029372019


Rs.4,88,500/- along with interest at the rate of 9%
per annum as awarded by the learned Tribunal from
the date of petition till the date of deposit.
(iii) The respondent No.2/Insurance company is
directed to deposit the enhanced compensation with
interest applicable therein, as awarded by the
learned Tribunal, within a period of eight weeks from
the date of receipt of a copy of this Judgement and
shall be entitled to recover the said amount from the
insured owner of the vehicle, in accordance with law.
(iv) The remaining portion of the Impugned Award
of the learned Tribunal remains undisturbed;
(v) On such deposit of compensation, the same shall
be released in favour of the appellant/claimant, on
filing of an appropriate application by the
appellant/claimant for withdrawal of the enhanced
amount;
(vi) The amounts deposited by the respondent
No.2/Insurance Company, if any, shall be
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MFA No. 928 of 2019

CNR: KAHC010029372019


transferred to the concerned Tribunal for
disbursement.
(vii) The Registry is directed to draw the modified
Award accordingly;
(viii) The Registry is directed transmit a copy of
this judgment along with its records to the
concerned Tribunal forthwith;
(ix) No order as to costs.

Digitally signed by TARA
VITASTA GANJU
Location: HIGH COURT OF
KARNATAKA

Sd/-
(TARA VITASTA GANJU)
JUDGE


KS
List No.: 1 Sl No.: 52

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