Bangalore District Court
Amaravathi vs Suresh Babu on 29 June, 2024
KABC020177852019
BEFORE THE COURT OF SMALL CAUSES AND
MOTOR ACCIDENT CLAIMS TRIBUNAL, AT
BENGALURU
(SCCH-16)
Present: Sri. Ganapati Bhat,
B.Sc., LL.B. (Spl.). L.L.M.
X Addl. Judge, Court of Small Causes
& Member, MACT, Bengaluru.
MVC No.4045/2019
Dated: 29th June 2024
Petitioners 1. Smt. Amaravathi,
W/o Late Raghu,
Aged about 48 years,
2. Sri Lokesh,
S/o Late Raghu,
Aged about 22 years,
3. Sri Karthik,
S/o Late Raghu,
Aged about 19 years,
4. Sri Chikkanarasimhaiah,
S/o Jalarappa,
Aged about 87 years,
All are residing at
Bodaganahalli, Thippenahalli,
Chikkaballapur, Karnataka.
5. Smt. Narayanamma,
W/o Chikkarasimhaiah,
Aged about 77 years,
2 (SCCH-16) MVC 4045/2019
Both are residing at
Thippenahalli Village,
Bodaganahalli,
Chikkaballapur Taluk & District.
(Smt. N.S. Rohini, Advocate)
Vs.
Respondents 1. Sri Suresh Babu,
S/o Nagarajappa,
Ward No.6, Municipal Layout,
Near APMC Market,
Chikkaballapura Town,
Chikkaballapura - 562 101.
(RC owner of the offending
vehicle Ashok Leyland
No.KA-40-A-349)
(Sri Shashivardhan M.N.,
Advocate)
2. The Manager,
Bajaj Allianz General Insurance
Co. Ltd., No.31, JBR Towers,
I Cross, New Mission Road,
Adjacent to Jain College,
Bengaluru - 560 027.
(Insurer of the offending vehicle
No.KA-40-A-349, vide Policy
No.OG-19-4044-1803-00000002
valid from 22-06-2018 to
21-06-2019)
(Sri V.R. Muralidhara, Advocate)
JUDGMENT
The petitioners have filed this petition under Section 166 of M.V. Act 1989, seeking compensation of 3 (SCCH-16) MVC 4045/2019 Rs.35,00,000/- from the respondents for the accidental death of Raghu, who died due to the accident caused by the driver of the lorry bearing No.KA-40-A-4349.
2. The facts in brief stated in the petition are as under;
On 03-05-2019, at about 9.45 a.m., the deceased Raghu was proceeding the Ashok Leyland lorry bearing No.KA-40-A-4349 along with flowers. When the lorry reached near Chikkayellaiahnahapalya village at Dabaspete, the right back wheel of the said vehicle got bursted and the driver of the lorry lost control over it. The vehicle got skid towards left side. As a result of the accident, the deceased sustained grievous injuries and he was shifted to the Doddaballapura Government Hospital. The deceased succumbed to the accidental injuries in the hospital. After postmortem, the dead body of the deceased was handed over to the petitioners. The petitioners have spent Rs.1,00,000/- towards transportation of the dead body and funeral ceremony. Prior to the accident, the deceased was hale and healthy. He was doing flower business. He was aged about 45 4 (SCCH-16) MVC 4045/2019 years and earning Rs.15,000/- per month. The petitioner No.1 has lost her husband, petitioners No.2 and 3 have lost their father and petitioners No.4 and 5 have lost their son. The Doddabelavangala Police have registered the criminal case against the driver of the lorry bearing No.KA-04-A-4349 for the offences punishable under Section 279, 337 and 304(A) of IPC. The respondent No.1 is the RC owner and respondent No.2 is the insurer of the offending vehicle. Hence, they are jointly and severally liable to pay the compensation to the petitioners. The petitioners have sought for compensation of Rs.35,00,000/- with interest. They have prayed to allow the petition.
3. In response to the notice, the respondent No.2 has appeared through its counsel and filed the written statement. In response to the notice, the respondent No.1 has appeared through his counsel but he did not choose to file the written statement.
4. The facts in brief stated in the written statement of the respondent No.2 are as follows; 5 (SCCH-16) MVC 4045/2019 The respondent No.2 has denied the allegations in the petition. It has admitted the issuance of goods carrying commercial vehicle package policy to the lorry bearing No.KA-07-A-4349. It has stated that the risk of the passengers is not covered under the said policy. It has stated that the deceased Raghu was traveling in the said insured vehicle as unauthorized/gratuitous passenger whose risk is not covered under the said policy. It has further stated that the respondent No.1 has violated Section 134(c) and 158(6) of IMV Act. It has further stated that the insured vehicle is not involved in the said accident. It has denied the occurrence and mode of accident. It has stated that the deceased was traveling in the insured vehicle as unauthorized passenger. It has stated that the driver of the insured vehicle had no valid driving licence at the time of accident. It has further stated that the respondent No.1 has entrusted his vehicle to the person who had no valid driving licence, hence he has violated the terms and conditions of the policy. It has stated that at the time of accident, the driver of the insured vehicle was not driving it in rash and negligent 6 (SCCH-16) MVC 4045/2019 manner. It has denied the injuries to the deceased. It has denied the alleged alleged funeral expenses and transportation expenses. It has denied the age, avocation and income of the deceased. It has stated that the police have lodged the false criminal case against the driver of the insured vehicle. It has stated that the petitioners have not produced their PAN cards and other identity cards. It has further stated that the compensation claimed is excessive and exorbitant. It has stated that the interest on the compensation cannot be awarded more than 6% per annum. It has prayed to dismiss the petition.
5. Based on the pleadings the following issues came to be framed:
1. Whether the petitioners prove that Raghu succumbed to the injuries sustained in vehicular accident alleged to have been occurred on 03-05-2019, due to the rash and negligent driving of the driver of the Ashok Leyland Lorry bearing registration No.KA-40-A-4349?
2. Whether the petitioners are entitled to compensation? If so, what is the quantum and from whom?
7 (SCCH-16) MVC 4045/2019
3. What order or Award?
6. In order to prove their case, the petitioner No.1 herself got examined as PW1 and got marked documents as Ex.P1 to Ex.P10. The official respondent No.2 got examined as RW1 and got marked documents as Ex.R1 and Ex.R2. The respondent No.1 has neither adduced any oral evidence nor produced any document.
7. Heard arguments of learned counsel for the petitioners and learned counsel for the respondent No.2. Perused the pleadings and evidences and materials available on record, my findings on the issues are as under:
Issue No.1 : In the Affirmative Issue No.2 : Partly in the Affirmative Issue No.3 : As per final order for the following REASONS ISSUE No.1:
8. The petitioners have contended that on 03-05- 2019, at about 9.45 a.m., NH-207 road, the driver of the Ashok Leyland lorry bearing No.KA-40-A-4349 lost 8 (SCCH-16) MVC 4045/2019 control over his vehicle and the vehicle was skidded towards its left side at Dobaspete-Doddaballapur road. It is the further contention of the petitioners that due to the accident, the deceased being the passenger in the said lorry fell down and sustained grievous injuries to his head and other parts of the body. It is the further contention of the petitioners that immediately after the accident, the deceased was shifted to Government Hospital, Doddaballapura. It is the further contention of the petitioners that the deceased was succumbed to the injuries in the hospital. It is the further contention of the petitioners that the accident was due to rash and negligent driving of the driver of the offending vehicle. They have further contended that the Doddabelavangala Police have registered the criminal case against the driver of the said lorry for the offences punishable under Section 279, 337 and 304(A) of IPC.
9. In Kusum and Others vs Satbir and Others reported in (2011) SCC 646, the Hon'ble Supreme Court has held that in a case relating to the Motor 9 (SCCH-16) MVC 4045/2019 Accident Claims, the claimants are not required to prove the case as needs required to be done in a criminal trial.
10. In Parameshwari vs. Amir Chand and others reported in (2011) SCC 635, the Hon'ble Supreme Court has held that a road accident claims the strict principle of proof in a criminal case are not required.
11. In Bimla Devi and others vs. Himachal Road Transport Corporation and others reported in (2009) 13 SCC 513, the Hon'ble Supreme Court has held that the claimants were merely to establish their case on touch stone of preponderance of probability and that standard of proof on beyond reasonable doubt could not have been applied.
12. In Dulcina Fernandes and others vs. Joaquim Xavier Cruz and another ruling reported in (2013) 10 SCC 6, the Hon'ble Supreme court has held as follows:
"7.It would hardly need a mention that the plea of negligence on the part of the first respondent who was driving the pickup van as set up by the claimants was required to be decided by the learned 10 (SCCH-16) MVC 4045/2019 Tribunal on the touchstone of preponderance of probabilities and certainly not on the basis of proof beyond reasonable doubt."
13. In Anita Sharma and others vs. The New India Assurance Co. Ltd., and another, ruling reported in (2021) 1 SCC 171, the Hon'ble Supreme Court has held as follows:
"Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eyewitnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant's version is more likely than not true."
14. In Gurdeep Singh Vs Bhim Singh ruling reported in (2013) 11 SCC 507, the Hon'ble Supreme Court has held that in the motor accident claims, it is very difficult to get eyewitness. It has further held that even if, the eyewitnesses are available, 11 (SCCH-16) MVC 4045/2019 they are not ready to come and depose in court of law for many reasons and thus, courts have to go by the oath of the claimant only.
15. Therefore, from the above rulings of the Hon'ble Supreme Court, it is clear that the strict proof of the case by the petitioner is not required and in all the MVC cases, the standard of proof required from the petitioner is preponderance of probability. The concept of proof of the case beyond reasonable doubt is not applicable in deciding the MVC cases by the Tribunal.
16. In order to prove their case, the petitioners have produced as many as 10 documents and they are marked as Ex.P1 to Ex.P10. Out of the said documents, Ex.P1 is the FIR, Ex.P2 is the complaint, Ex.P3 is the postmortem report, Ex.P4 is the spot mahazar, Ex.P5 is the inquest, Ex.P6 is the sketch, Ex.P7 is the IMV report, Ex.P8 is the charge sheet, Ex.P9 is the aadhar cards and Ex.P10 is the ration card. In Ex.P1 and Ex.P2, it is stated that when deceased was proceeding in the lorry bearing No.KA-40-A-4349, the driver of the lorry drove it in rash and negligent manner, hence, he lost control over his 12 (SCCH-16) MVC 4045/2019 lorry and the vehicle was skid on the left side of the road. It is further stated that due to the accident, the deceased by name Raghu has sustained grievous injuries and succumbed to the injuries in the hospital. The accident took place on 03-05-2019 at about 9.45 a.m., and the complaint was lodged at 3.00 p.m., on the same day. Hence, there is no unreasonable delay in lodging the complaint. In Ex.P3 and Ex.P5, injuries to the deceased are shown. As per Ex.P3, the doctor who has conducted the postmortem has opined that the death is due to respiratory failure followed by cardiac arrest due to the head injury sustained by the deceased. In Ex.P4, the accident spot is stated. In Ex.P6, the accident spot is shown. As per Ex.P6, the accident spot is almost in the middle of the road. In Ex.P7, the damages to the vehicle are shown. The police have filed the charge sheet after investigation in the criminal case. The said document is marked as Ex.P8. In Ex.P8, it is stated that the driver of the Ashok Leyland vehicle bearing No.KA-40-A-4349 drove his vehicle in rash and negligent manner and lost control over the vehicle and the vehicle was skidded on 13 (SCCH-16) MVC 4045/2019 the left side of the road. It is further stated that the deceased was the passenger in the said vehicle. It is further stated that due to the accident, the deceased has sustained injuries and succumbed to the injuries. It is further stated that the accident was due to rash and negligent driving of the driver of the lorry bearing No.KA-40-A-4349. It is further stated that the driver of the lorry was not having valid driving licence as on the date of accident. The police have alleged the offences punishable under Section 279, 337, 338, 304(A) of IPC and Section 177 and 181 of IMV Act against the driver of the offending vehicle. They have alleged the offences punishable under Section 180 of IMV Act against the respondent No.1 for entrusting his vehicle to the person who had no valid driving licence. In all the documents, it is stated that the accident was due to rash and negligent driving of the driver of the lorry bearing No.KA-40-A-4349.
17. The petitioner No.1 has entered into the witness box and got examined as PW1. She has re- iterated the contents of the petition in her examination- 14 (SCCH-16) MVC 4045/2019 in-chief. In the cross-examination, she has denied the suggestion that her husband was travelling in the offending vehicle as unauthorized passenger. She has further denied the suggestion that the accident was not due to the negligence of the driver of the lorry. The Legal Officer of the respondent No.2 has entered into the witness box and got examined as RW1. He has re- iterated the contents of the written statement in his examination-in-chief. In the cross-examination, he has admitted that the respondent No.2 has not independently investigated the matter. He has admitted that the insurance policy of the said lorry was in force as on the date of accident. He has admitted that the seating capacity of the said vehicle is 1+1. The respondent No.2 has not produced any independent evidence to show that the charge sheet filed by the police are incorrect. It has not adduced any independent witness to show that the accident was not due to rash and negligent driving of the driver of the lorry bearing No.KA-40-A-4349. The petitioners have produced both oral and documentary evidence to show that the 15 (SCCH-16) MVC 4045/2019 accident was due to rash and negligent driving of the driver of the offending vehicle.
18. The learned counsel for the respondent No.2 has argued that the deceased was traveling in the lorry without any authority. The petitioners have stated that the deceased was authorized passenger as he was transporting his flowers in the said lorry. In all the police documents and other documents, it is stated that the deceased was traveling in the lorry as he was transporting his flowers from Chickballapura market to Tumkur market. Therefore, from the documentary and oral evidence, petitioners have proved that the accident was due to rash and negligent driving of the driver of the lorry bearing No.KA-40-A-4349. The petitioners have further proved that deceased has succumbed to the injuries due to the accident. Hence, I answer issue No.1 in the affirmative.
ISSUE No.2:
19. As discussed above, the petitioners have shown that the vehicle of the respondent No.1 bearing No.KA-40-A-4349 has caused the accident and the 16 (SCCH-16) MVC 4045/2019 accident is due to rash and negligent driving of the offending vehicle by its driver. The respondent No.2 is the insurance company of the vehicle of the respondent No.1. The petitioners have produced their Aadhar cards and Aadhar card of the deceased to show their relationship with the deceased. From these documents, it is clear that the petitioner No.1 is the wife and the petitioners No.2 and 3 are the sons and petitioners No.4 and 5 are father and mother of the deceased. Hence, the petitioners are legal representatives of the deceased. Since the petitioners are the legal representatives of the deceased, they are entitled to the compensation.
In the case of National Insurance Co. vs. Birender ruling reported in (2020) 11 SCC 356, the Hon'ble Supreme Court has held as follows:
"12. The legal representatives of the deceased could move application for compensation by virtue of clause (c) of Section 166(1). The major married son who is also earning and not fully dependant on the deceased, would be still covered by the expression "legal representative" of the deceased. This Court in Manjuri Bera (supra) had expounded that liability to pay
17 (SCCH-16) MVC 4045/2019 compensation under the Act does not cease because of absence of dependency of the concerned legal representative.
Notably, the expression "legal representative" has not been defined in the Act. In Manjuri Bera (supra), the Court observed thus:
"9. In terms of clause (c) of subsection (1) of Section 166 of the Act in case of death, all or any of the legal representatives of the deceased become entitled to compensation and any such legal representative can file a claim petition. The proviso to said subsection makes the position clear that where all the legal representatives had not joined, then application can be made on behalf of the legal representatives of the deceased by impleading those legal representatives as respondents.
Therefore, the High Court was justified in its view that the appellant could maintain a claim petition in terms of Section 166 of the Act.
10. .....The Tribunal has a duty to make an award, determine the amount of compensation which is just and proper and specify the person or persons to whom such compensation would be paid. The latter part relates to the entitlement of compensation by a person who claims for the same.
11. According to Section 2(11) CPC, "legal representative" means a person who in law represents the Tractor and Trally bearing No.AP-03- AN-8690 & AP-03-AN-8712 estate of a deceased person, and includes any person who intermeddles with the
18 (SCCH-16) MVC 4045/2019 estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.
Almost in similar terms is the definition of legal representative under the Arbitration and Conciliation Act, 1996 i.e. under Section 2(1)(g)
12. As observed by this Court in Custodian of Branches of BANCO National Ultramarino vs. Nalini Bai Naique [1989 Supp (2) SCC 275 the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead it stipulates that a person who may or may not be legal heir competent to inherit the property of the deceased can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression "legal representative". As observed in Gujarat SRTC vs. Ramanbhai Prabhatbhai [(1987) 3 SCC 234 a legal representative is one who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child.
13. In Manjuri Bera (supra), in paragraph 15 of the said decision, while adverting to the provisions of Section 140 of the Act, the Court observed that even if there is no loss of dependency, the claimant, if he was a legal representative, will be 19 (SCCH-16) MVC 4045/2019 entitled to compensation. In the concurring judgment of Justice S.H. Kapadia, as His Lordship then was, it is observed that there is distinction between "right to apply for compensation" and "entitlement to compensation". The compensation constitutes part of the estate of the deceased. As a result, the legal representative of the deceased would inherit the estate. Indeed, in that case, the Court was dealing with the case of a married daughter of the deceased and the efficacy of Section 140 of the Act. Nevertheless, the principle underlying the exposition in this decision would clearly come to the aid of the respondent Nos. 1 and 2 (claimants) even though they are major sons of the deceased and also earning.
14. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependent on the deceased and not to limit the claim towards conventional heads only." According to the ratio laid down in this ruling, the legal representatives though not fully dependent on the deceased are entitled to claim compensation under all the heads i.e., under both conventional and non- 20 (SCCH-16) MVC 4045/2019 conventional heads. The total compensation is to be calculated in the following manner:
The compensation towards loss of dependency : The petitioner No.1 is the wife and the petitioners No.2 and 3 are the sons and petitioners No.4 and 5 of the deceased Raghu. The petitioners have stated that they were depending upon the deceased.
They have shown that they are legal representatives of the deceased, hence, they are entitled to compensation under the head of loss of dependency. In order to calculate the loss of dependency, the first step is to determine the age and income of the deceased.
The determination of age and income of the deceased : The petitioners have stated that the age of the deceased as on the date of accident is 45 years. To substantiate this point, the petitioners have produced the copy of the Aadhar Card of the deceased, wherein the date of birth of the deceased is mentioned as 12-04- 1971. Admittedly, the accident took place on 03-05- 2019. Therefore, as on the date of accident the age of the deceased was about 48 years.
21 (SCCH-16) MVC 4045/2019 The petitioners have stated that the deceased was doing flower business and he was having monthly income of Rs.15,000/-. The petitioners have not produced any documents to show the income of the deceased. Therefore, the notional income is to be considered as income of the deceased as per the guidelines of the Karnataka State Legal Services Authority.
In G.T. Basavaraj vs. Niranjan and another in MFA No.7781/2016 judgment dated 11-08-2022, in Ramanna and another vs. Y.B. Mahesh and another in MFA No.140/2017 judgment dated 16- 01-2020, in New India Assurance Co. Ltd., vs. Anusaya and others in MFA No.101195/2014 judgment dated 05-01-2023, the Hon'ble High Court of Karnataka has held that when the income is not proved, then the notional income of the deceased as per the guidelines issued by Karnataka State Legal Services Authority is to be adopted as the income of the deceased. The accident took place in the year 2019. Therefore, the notional income is to be treated as 22 (SCCH-16) MVC 4045/2019 Rs.14,000/- per month. Therefore, his annual income would be Rs.1,68,000/-.
As per the ratio laid down in the ruling of National Insurance Co. Ltd. vs. Pranay Sethi and others, reported in (2017) 16 SCC 680, the deceased is also entitled to future prospects though he is not a permanent employee. Since the deceased is aged about 48 years and not a permanent employee, the future prospects would be 25% of her income. Therefore, 25% of Rs.1,68,000/- comes to Rs.42,000/-. Therefore, the future prospects of the deceased comes about Rs.42,000/-. If this income is added to the notional income, then it comes about Rs.2,10,000/-. This income is within the limits of the exemption limit under the Income Tax Act.
The deduction of personal expenses and calculating the multiplicand : The family of the deceased consist of 5 persons i.e., petitioners No.1 to 5. Therefore, the number of the dependents is 5. Therefore, deduction towards the personal expenses 23 (SCCH-16) MVC 4045/2019 comes about 1/4th of the total income i.e., Rs.52,500/-. Therefore, the multiplicand is as follows:
Rs.2,10,000/- - Rs.52,500/- = Rs.1,57,500/- is the contribution towards the family/multiplicand.
Ascertaining the multiplier : The appropriate multiplier should be applied as per the decision of the Hon'ble Supreme Court in Sarla Verma and others vs. Delhi Transport Corporation and another reported in 2009 ACJ 1298. The age of the deceased is found as 48 years. Therefore, the appropriate multiplier is 13.
Therefore, the compensation under the head of loss of dependency is calculated as follows :
The age of the deceased is 48 years, number of dependents are 5, the notional income + future prospects is Rs.2,10,000/- per annum. Multiplicand is Rs.1,57,500/-, multiplier is 13. Therefore, the compensation to the petitioners under the head of loss of dependency is Rs.20,47,500/-. Hence, an amount of Rs.20,47,500/- is awarded to the petitioners towards loss of dependency.
24 (SCCH-16) MVC 4045/2019 Compensation under conventional heads : As per the judgment of the National Insurance Co. Ltd. vs. Pranay Sethi and others reported in (2017) 16 SCC 680, following conventional heads they are permissible.
1) Loss of estate Rs.15,000/-
2) Loss of consortium Rs.40,000/-
3) Funeral expenses Rs.15,000/-
Six years have been lapsed from the date of the judgment. Therefore, 20% is to be increased on this amount. Therefore, the loss of consortium comes about Rs.48,000/-, funeral expenses comes about Rs.18,000/- and loss of estate comes about Rs.18,000/-.
In Magma General Insurance Co.
Ltd vs Nanu Ram Alias Chuhru Ram and others ruling reported in (2018) 18 SCC 130, the Hon'ble Supreme Court has held as follows:
"21. A Constitution Bench of this court in Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680: (2018) 3 SCC (Civ) 248: (2018) 2 SCC (Cri) 205] dealt with the various heads under which compensation is to be awarded in a death case. One of 25 (SCCH-16) MVC 4045/2019 these heads is loss of consortium. In legal parlance, "consortium" is a compendious term which encompasses "spousal consortium", "parental consortium", and "filial consortium". The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse:
[Rajesh v. Rajbir Singh, (2013) 9 SCC 54 (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] 21.1. Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of "company, society, cooperation, affection, and aid of the other in every conjugal relation":
(Black's Law Dictionary (5th Edn., 1979).
21.2. Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training".
21.3. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.
22. Consortium is a special prism reflecting changing norms about the status and worth of actual relationships.
Modern jurisdictions world-over have recognised that the value of a child's consortium far exceeds the economic value of the compensation awarded in 26 (SCCH-16) MVC 4045/2019 the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.
As per the ratio laid down in this case, the consortium is to be given under 3 heads i.e., spousal consortium, parental consortium and filial consortium. Therefore, the petitioners No.1 to 5 are entitled to Rs.48,000/- each towards spousal, parental and filial consortium.
20. The details of compensation proposed to be awarded are as under:
Sl. Head of
Amount/Rs
No. Compensation
1. Loss of dependency Rs. 20,47,500-00
2. Loss of spousal, Rs. 2,40,000-00
parental and filial
consortium
3. Loss of estate Rs. 18,000-00
4. Funeral expenses Rs. 18,000-00
Total Rs. 23,23,500-00
21. In all, petitioners are entitled for compensation of Rs.23,23,500/- with interest at the rate of 6% per annum from the date of petition till its realization. 27 (SCCH-16) MVC 4045/2019 Liability: pay and recovery
22. The respondent No.1 is the owner and respondent No.2 is the insurer of the offending vehicle. The respondent No.2 has admitted the insurance policy to the offending vehicle as on the date of accident. The respondent No.2 has stated that the driver of the offending vehicle had no valid driving licence as on the date of accident. In the charge sheet, it is stated that the driver of the bus bearing No.KA-40-A-4349 has no valid driving licence as on the date of the accident. A defence of the respondent No.2 is that since the driver of the offending vehicle has no valid driving licence, hence the insurance company is not liable to pay any compensation.
23. In New India Assurance Company Limited, Bijapur, vs. Yallavva w/o. Yamanappa Dharanakeri and another ruling reported in ILR 2020 KAR 2239, the full bench of Hon'ble High Court of Karnataka referring to the catena of decisions rendered by the Hon'ble Apex Court has held that breach of policy conditions would not exonerate the Insurance Company 28 (SCCH-16) MVC 4045/2019 to pay the compensation. It has held that even if fundamental breach of policy conditions is established, the Insurance Company is still liable to satisfy the award by paying the compensation to the third party and thereafter, it can recover it from the owner of the vehicle involved in the accident. It has held that the pay and recovery cannot be ordered against the insurance company only when the claim petition filed is a fraudulent and collusive petition.
24. In United India Insurance Co. vs. V. Janardhan ruling reported in 2021 SCC Online KAR 12643, the Hon'ble High Court of Karnataka has held as follows:
"It would be irrelevant as to whether the owner of the vehicle appear or did not appear or did not contest or contested the proceedings for applying the pay and recovery principle. So long as it is established that there was an insurance policy issued in respect of motor vehicle which was involved in the accident, the insurer would be liable to pay the victim, even if the insurer is able to establish its defence that there has been a breach of policy condition and it can avoid liability".
29 (SCCH-16) MVC 4045/2019
25. In Shivanna vs. Muniyappa ruling reported in 2022 SCC Online KAR 16660, the Hon'ble High Court of Karnataka has held that the insurer would have to satisfy the compensation i.e., liable to be paid to the claimants and thereafter to proceed to recover the same from the owner of the offending vehicle.
26. In Balu Krishna Chavan vs. Reliance General Insurance Co. Ltd., 2022 Live Law (SC) 932, judgment dated 03-11-2022, the Hon'ble Supreme Court has held that when the insurance policy is in force then even if the insurer is able to show the breach of policy condition and it can avoid the liability then also it is liable to pay the victim and recover from the owner of the offending vehicle.
27. In Pappu and others vs. Vinod Kumar Lamba and another ruling reported in (2018) 3 SCC 208, the Hon'ble Supreme Court has held as follows:
"110. The summary of our findings to the various issues as raised in these petitions areas follows:
(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third 30 (SCCH-16) MVC 4045/2019 party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.
(ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163Aor Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said Act.
(iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to reproved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured,the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 31 (SCCH-16) MVC 4045/2019 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them.
(v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case.
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act.
(vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), doesn't fulfill the requirements of law or not will have to be determined in each case.
(viii) - (ix) xxxxx
(x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the 32 (SCCH-16) MVC 4045/2019 insured for the compensation and other amounts which it has been compelled to payto the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section(3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal.
(xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims."
28. In Shamanna and another vs. Divisional Manager, Oriental Insurance Co. Ltd., and others 33 (SCCH-16) MVC 4045/2019 ruling reported in (2018) 9 SCC 650, the Hon'ble Supreme Court of India has held as follows:
"12. Since the reference to the larger bench in Parvathneni case 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 followed in Laxmi Narain Dhut 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 by this Court in Swaran Singh and Laxmi Narain Dhut 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 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".
29. In the case of Rishi Pal Singh vs New India Assurance Company, Civil Appeal No. 4919/2022,the Hon'ble Supreme Court of India has held that it is not expected from the owner of the vehicle to verify the genuineness of the driving licence issued to his driver.
34 (SCCH-16) MVC 4045/2019
30. In the case of Najegowda Vs C. Cheluvaraj ruling reported in 2023 ACJ1245 has held that when the driver of the offending vehicle does not possess valid driving licence at the time accident, then insurance company is liable to pay compensation at the first instance and then it can recover that amount from the owner.
31. In Kurvan Ansari @ Kurvan Ali vs. Shyam Kishore Murmu, ruling reported in (2022) 1 SCC 317, the Hon'ble Supreme Court of India has held as follows:
"The entire compensation shall be paid to the appellants by respondent No.2
- Insurance Company, and we keep it open to the Insurance Company to recover the same from respondent No.1 - owner of the motorcycle by initiating appropriate proceedings as the motorcycle was driven by the driver who was not possessing valid driving licence on the date of the accident".
32. In IFFCO Tokio General Insurance Co. Ltd., vs. Geeta Devi and others ruling reported 2023 SCC OnLine SC 1398 the Hon'ble Supreme Court has held as follows:
35 (SCCH-16) MVC 4045/2019 "even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident".
The ratio laid down in the above rulings are applicable to the case on hand.
33. The respondent No.1 has not produced any documents to show that there is valid and effective driving licence to the driver of his vehicle as on the date of accident. Further, the charge sheet which is marked as Ex.P8 would show that there was no valid licence to the driver of the offending vehicle as on the date of accident. Therefore, from the materials available on record, it is clear that the driver of the offending vehicle had no valid driving licence as on the date of accident. Therefore, the respondent No.1 has violated the terms and conditions of the insurance policy. The insurance policy is valid as on the date of accident. This fact is 36 (SCCH-16) MVC 4045/2019 admitted by the respondent No.2. Therefore, the respondent No.2 i.e., insurance company is primarily liable to pay the compensation along with respondent No.1. Since there is violation of the terms and conditions of the policy, the respondent No.2 is entitled to recover the compensation amount from the respondent No.1 after pay the amount to the petitioner. Hence, the respondent No.1 and 2 both are jointly and severally liable to pay the compensation amount to the petitioner. But, the respondent No.2 is entitled to recover the compensation amount to be paid to the petitioner after paying it to him from the respondent No.1 on pay and recovery basis.
Apportionment :
34. The petitioners No.1 to 5 are the legal representatives and they are entitled for the compensation. The petitioner No.1 is the wife and she has incurred the major expenses like funeral and transportation expenses. Therefore, she is entitled to 40% of the total compensation. The petitioners No.2 and 3 being the sons of the deceased, they are entitled to
37 (SCCH-16) MVC 4045/2019 15% each of the total compensation. The petitioners No.4 and 5 being the father and mother of the deceased, they are entitled to 15% each of the total compensation.
35. As discussed above, the petitioners have shown that the bus bearing No.KA-40-A-4349 has caused the accident to the husband of the petitioner No.1 and the accident was due to negligent driving of the offending vehicle by the driver of the said vehicle. They have further shown that they are entitled to total compensation of Rs.23,23,500/-. They have further shown that the insurance to the said vehicle was in force as on the date of accident. Therefore, the respondent No.1 and 2 are jointly and severally liable to pay the compensation. Hence, I answer issue No.2 partly in the affirmative.
ISSUE No.3:
36. In view of the findings, the petition deserves to be allowed in part. Hence, the following order is passed:
ORDER The petition is partly allowed with costs.
38 (SCCH-16) MVC 4045/2019
The petitioners are entitled to
compensation of Rs.23,23,500/- (Rupees twenty three lakhs, twenty three thousand and five hundred only) with interest at the rate of 6% p.a., from the date of petition till realisation.
The respondent No.2 is directed to pay the compensation amount on pay and recovery basis to the petitioner within two months from the date of this order in the first instance and then recover the same from respondent No.1 through due course of action.
Compensation amount is
apportioned as follows:-
Petitioner No.1 - Wife 40%
Petitioner No.2 - Son 15%
Petitioner No.3 - Son 15%
Petitioner No.4 - Father 15%
Petitioner No.5 - Mother 15%
Out of the compensation amount
awarded to petitioners No.1 to 5, 30% of the compensation amount with proportionate interest shall be deposited in their names as FD in any nationalized bank for the period of two years with liberty to draw the accrued 39 (SCCH-16) MVC 4045/2019 interest periodically and the remaining 70% amount with proportionate interest shall be released to them through E- payment on proper identification and verification.
Advocate's fee is fixed at Rs.2,000/-. Draw an award accordingly.
(Dictated to the stenographer, directly on computer, typed by him, corrected and then pronounced in the open court this the 29th day of June 2024) (Ganapati Bhat) Member, MACT, Bengaluru.
ANNEXURE Witnesses examined on behalf of petitioners:
PW1 Smt. Amaravathi Documents marked on behalf of petitioners:
Ex.P1 FIR Ex.P2 Complaint Ex.P3 Postmortem Report Ex.P4 Spot Mahazar Ex.P5 Inquest Ex.P6 Sketch Ex.P7 IMV Report Ex.P8 Charge Sheet Ex.P9 Notarized copies of 3 Aadhar Cards Ex.P10 Notarized copy of Ration Card
Witnesses examined on behalf of respondents:
RW1 Sri Jayant Inamdar 40 (SCCH-16) MVC 4045/2019
Documents marked on behalf of the respondents:
Ex.R1 Copy of Insurance Policy along with terms and conditions Ex.R2 Copy of Notice dated 28-02-2019 along with postal receipts (Ganapati Bhat) Member, MACT, Bengaluru.