Bangalore District Court
Kumaramma vs Chandrashekar K.R on 1 March, 2024
SCCH-23 1 MVC. No.4993/2022
KABC020274002022
IN THE COURT OF XXI ADDL.SMALL CAUSE JUDGE AND
MOTOR ACCIDENT CLAIMS TRIBUNAL, BANGALORE.
(SCCH-23)
DATED THIS THE 1st DAY OF MARCH - 2024
PRESENT: Sri. Aalok. A.N
(B.B.A. LL.B),
XXI ADDL. SCJ & ACMM
MEMBER - MACT, BENGALURU.
MVC. No.4993/2022
Petitioners : 1. Smt. Kumaramma,
W/o Kale Rangaiah,
Aged about 55 years.
2. Sri. Rangappa @ Kale Rangaiah,
S/o Rangaiah,
Aged about 65 years.
Both are R/at : Hoovinakatte Village,
Tale Koppa Post,
Gubbi Taluk,
Cheluru Hobli,
Tumkur District-572117.
(By Advocate: Sri. Naveen Kumara. N)
v/s
Respondents : 1) Chandrashekar. K.R,
S/o Late Ramanna. K.L,
Aged about 54 years,
R/at No.2, 1st Cross,
babusaheb Palya,
SCCH-23 2 MVC. No.4993/2022
Mysore Road Check Post,
Kengeri,
Bengaluru City-560043.
Permanently R/at :
Kamenahalli village,
K.R.Nagara Taluk,
Mysore District-571602
Driver of TVS Moped bearing
Reg.No.KA-54-L-7430
(By Advocate: Sri. Karthik Kumar. K)
2) Sadashiva. N,
S/o Ningappa,
Aged about 45 years,
R/at No.37-2, Uchenahalli village,
Near Basaveshwara Temple,
Murukanahalli Post,
Seelanere Hobli,
K.R.Pete Taluk,
Owner of TVS Moped bearing
Reg.No.KA-54-L-7430
(Exparte)
3) Liberty Gen.Ins.Co.Ltd.,
1 Alyassa,
1st floor, Rear Portion,
Old Number-28,
New Number-23,
Richmond Road,
Bengaluru-560025.
Policy No.201250020319800157000000
(By Advocate: Sri.Kiran Pujar)
SCCH-23 3 MVC. No.4993/2022
JUDGMENT
This claim petition is filed under Sec.166 of M.V Act, 1988 seeking compensation for the death caused in a Road Traffic accident.
2. Brief case of the petitioner in the nutshell:
It is the case of petitioners that on 28.09.2020 at about 8.45 p.m. while the deceased Mahesh after finishing his duty he proceeding towards FTI Factory circle flyover in his motorcycle bearing Reg.No.KA-41-Y-8992 as a rider by observing all the traffic rules and regulations, when he was proceeding from Tumkur road through Outer Ring Road towards FTI circle a TVS Moped bearing Reg.No.KA-54-L-
7430 driven by its driver in a rash and negligent manner came from same side in which deceased was proceeding, suddenly turned towards left side of the road and hits the vehicle of the deceased. As a result of tremendous impact the deceased fell down on road and sustained severe injuries on his head, face, ear and his legs. Though he was shifted to M.S.Ramaiah Hospital but the same went in vein and breathed his last. It is submitted that postmortem was conducted and corpse was handed over to the family members. It is urged that the deceased was hale and healthy and was working as a Driver in KHT Chevrolet (A Division of Morzaria real Tech) and getting a gross salary of Rs.13,535/- p.m. It is further submitted that because of death of SCCH-23 4 MVC. No.4993/2022 deceased the petitioners have suffered both financially and emotionally. It is contended that the accident happened because of rash and negligent riding of the TVS Moped bearing Reg.No.KA-54-L-7430 and as such the respondent No.1 & 2 being the driver and owner and respondent No.3 being the insurer of the offending vehicle are jointly and severally liable to pay the compensation. Hence prayed to allow the petition.
3. Notice was duly served to respondent No.1 Respondent No.1 appeared through his counsel, he failed to contest the matter by filing the written statement.
4. Notice was duly served to respondent No.2, the respondent No.2 did not appear before this Tribunal. Hence he was placed exparte.
5. After service of notice, the respondent No.3 spurred in rush to the Court by filing written statement rather objections to the petition contending that the petition is not maintainable either law or on facts. The respondent No.3 admitting the issuance of insurance policy in respect of motorcycle bearing Reg.No.KA-54-L-7430. However the liability if any is pleaded to be subject to the terms & conditions of the policy. Non-compliance of section's 134(c) and 158(6) of MV Act is pleaded. The respondent No.3 denied the manner and involvement of the vehicle in the accident. Further negligence on the part of the rider of motorcycle SCCH-23 5 MVC. No.4993/2022 bearing Reg.No.KA-54-L-7430. Per contra it is alleged that, the accident happened due to rash and negligent driving on the part of the deceased. Further contended that the deceased was riding the motorcycle without wearing helmet and also he did not possess valid DL. Without prejudice to the said contention it is averred that the rider of the motorcycle bearing Reg.No.KA-54-L-7430 did not possess valid & effective DL as on the date of accident. Despite knowing the said fact the owner thereof had handed over its possession to such a rider. On account of willful breach of the terms & conditions of the policy by the insured, the insurance company is not liable to indemnify him. Further denied all the allegation made in the petition. Hence prayed to dismiss the petition.
6. On the basis of the above pleadings the following issues were framed :
ISSUES
1) Whether the petitioners proves that on 28.09.2020 at about 8.45 p.m., the deceased by name Mahesh was riding the motorcycle bearing reg No.KA-41-Y-
8992 from Tumkur road towards FTI Factory and when he reached near FTI Flyover, Outer Ring Road, Bengaluru City, at that time, the rider of the TVS Moped bearing reg.No.KA-54-L-7430 drove the same in a rash and negligent manner with high speed and dashed against the deceased motorcycle. Due to which the deceased fell down from the motorcycle and sustained grievous injury and succumbed to the said injuries ?
SCCH-23 6 MVC. No.4993/20222) Whether the petitioners proves that they are the legal heirs and dependents of the deceased ?
3) Whether the petitioners are entitled for compensation as prayed? If so, at what rate and from whom ?
4) What order or award ?
7. Petitioner No.1 examined herself as PW.1. Ex's.P1 to 17 were marked on behalf of the petitioners. The petitioners have also examined the Maintenance Technician / Supervisor of KHT Prime by name S. Mahesha Kumar. T was examined as PW.2. In order to prove the defence, the respondent No.3 got examined the Manager of respondent No.3 insurance company as RW.1 and got marked Ex.R1 document.
8. Heard erudite counsel for the petitioner and respondents counsel on merits. Perused the entire materials placed on record.
9. This tribunal answers to the above issues are as follows :-
Issue No.1 : In the Affirmative
Issue No.2 : In the Affirmative
Issue No.3 : Partly in the Affirmative
SCCH-23 7 MVC. No.4993/2022
Issue No.4 : As per final order for the
following :
REASONS
10. ISSUE NO.1 : As this issue clinches the whole dispute in controversy, this issue is taken for discussion at the inception for better appreciation of evidence and dissection of materials placed on record. The petitioners have knocked the doors of justice with a relief to grant a compensation of Rs.39,60,000/- on account of death of deceased in a Road Traffic Accident. Before dwelling into analyzing the disputed facts in issue it is relevant to have the birds eye of the case of petitioners in a nutshell.
11. It is the case of petitioners that on 28.09.2020 at about 8.45 p.m. while the deceased Mahesh after finishing his duty he proceeding towards FTI Factory circle flyover in his motorcycle bearing Reg.No.KA-41-Y-8992 as a rider by observing all the traffic rules and regulations, when he was proceeding from Tumkur road through Outer Ring Road towards FTI circle a TVS Moped bearing Reg.No.KA-54-L- 7430 driven by its driver in a rash and negligent manner came from same side in which deceased was proceeding, suddenly turned towards left side of the road and hits the vehicle of the deceased. As a result of tremendous impact the deceased fell down on road and sustained severe injuries on his head, face, ear and his legs. Though he was shifted to SCCH-23 8 MVC. No.4993/2022 M.S.Ramaiah Hospital but the same went in vein and breathed his last. It is submitted that postmortem was conducted and corpse was handed over to the family members. It is urged that the deceased was hale and healthy and was working as a Driver in KHT Chevrolet (A Division of Morzaria real Tech) and getting a gross salary of Rs.13,535/- p.m. It is further submitted that because of death of deceased the petitioners have suffered both financially and emotionally. It is contended that the accident happened because of rash and negligent riding of the TVS Moped bearing Reg.No.KA-54-L-7430 and as such the respondent No.1 & 2 being the driver and owner and respondent No.3 being the insurer of the offending vehicle are jointly and severally liable to pay the compensation. Hence prayed to allow the petition.
12. In order to substantiate the contentions of the petitioners, the petitioner No.1 stepped into the witness box and filed her affidavit-in-lieu of oral examination-in-chief as PW1 and got marked Ex.P1 to Ex.P17 documents. The petitioners have also examined the Maintenance Technician / Supervisor of KHT Prime by name S. Mahesha Kumar. T was examined as PW.2. On the other hand in order to substantiate the defence of the respondent No.3 and to demolish the case of the petitioners, the respondent No.3 counsel has cross examined PW.1 at length.
SCCH-23 9 MVC. No.4993/202213. Repelling to the contentions urged by the petitioners, the respondent No.3 had attacked the case of the petitioners on various prisms known to fact and law. The crux of the defence urged by the respondent No.3 is with regard to the negligence. It is specifically urged that there is no negligence on the part of the rider of the insured vehicle as such prayed to dismiss the petition. In support of these contentions, the Manager of respondent No.3 insurance company examined as RW.1 and Ex.R.1 got marked. In order to demolish the defence of the respondents and to substantiate the case of the petitioners, the petitioner's counsel has cross examined the RW.1 at length.
14. This issue revolves round the sphere and ambit as to the alleged rash and negligence on the part of the rider of the two wheeler. The factum of negligence has to be proved like any other fact in issue.
15. Before dwelling into analyzing the factum of alleged negligence it is relevant to have the conceptual aspects pertaining to factum of negligence. There are four basic elements that a person has to fulfill in order to do a negligent act. These elements are as follows:
Duty: For committing a negligent act, there must be some duty on the part of the defendant. Here it is important to understand whether the defendant has taken legal duty of care towards the plaintiff.SCCH-23 10 MVC. No.4993/2022
Breach of Duty: After fulfilling the first criteria the plaintiff must prove that the defendant has breached the legal duty imposed on him/her. It talks about the breach of duty on the part of the defendant which he/ she is expected to do as he/ she has some legal duty towards the plaintiff.
The action of causing something: It means that the damage caused to the plaintiff is due to the act of the defendant. Here the defendant may do an act which is not expected from him/her or the defendant may be negligent in not doing an act which was expected from him/ her.
Damages: At last what matters is, there must be some damage/injury that is caused to the plaintiff and this damages should be the direct consequence of the defendant's act.
Negligence means a breach of duty caused by omission to do something which has reasonable man guide by those consideration which ordinarily regulated conduct of human affairs would do which a prudent man would not do. In common prevalence negligence connoted to the want of proper care and the rashness conveys the idea of recklessness or the doing of an act without due consideration.
16. Reverting back to the factual matrix, the petitioners in order to prove the factum of negligence have mainly relied on Ex.P.1 to 12 documents. It is needless to mention that, it SCCH-23 11 MVC. No.4993/2022 is settled law of plethora of decisions that the factum of negligence has to be proved like any other fact in issue. It is specifically contended by the petitioners that, the insured vehicle had hit the deceased motorcycle as such there is a negligence on the part of the insured vehicle rider. On the other hand the said allegations urged by petitioners is stoutly denied by the respondent No.3 herein. No doubt the petitioners are bestowed with burden. There is absolutely no delay in setting criminal law into motion. The accident had happened on 28.09.2020 at about 8.50 p.m, and the criminal law was set into motion at 10.30 p.m on 28.09.2020 there is absolutely no delay in setting criminal law into motion. Further more the Ex.P.3 and 4 spot mahazar and sketch appended to the spot mahazar categorically reflects that deceased was going on the extreme left side of the road. The insured vehicle rider had came from the right side and hit the deceased. The deceased was moving in his lane on the extreme left side of the road which is well reflected in Ex.P4 sketch. Further more even the chargesheet as per Ex.P.5 was also filed as against the rider of the TVS Moped. When such is the case having regard to Ex.P.3, 4 coupled with Ex.P.5 chargesheet it is crystal clear that, the accident happened because of rash and negligence of the TVS moped rider.
17. It is pertinent to note that IO has given Notice u/s 133 of MV Act as per Ex.P.7 and the said notice was replied as per Ex.P.8 and also executed Indemnity bond wherein the SCCH-23 12 MVC. No.4993/2022 owner of the offending motorcycle has admitted the involvement of the vehicle. It is also forthcoming from Ex.P8 reply to 133 notice that the rider of the vehicle was not having valid DL at the time of accident. Be that as it may, the liability will be discussed in the later part of this judgment.
18. As last row to the sinking boat it is vociferously argued by the respondent No.3 counsel is that deceased was not wearing helmet and he has contributed for negligence. In order to controvert the above said contention, the it is relevant to relied on the ratio laid down by the Hon'ble Apex Court in Civil Appeal No.79/2020 (Mohammad Siddique & another V/s National Insurance Company Ltd & others), wherein it is held that "Simply because there is a violation of Section 129 of the Motor Vehicles Act 1988 by a victim in an accident, there is no presumption that there is contributory negligence on the part of the person who was not wearing the helmet. It is to be decided in the facts and circumstances of each case". That is to say, some other additional evidence is necessary to attribute contributory negligence to the deceased which is not adduced in this case. All the mist of doubt created by the respondent No.3 during the course of trail is demystified by the petitioners.
19. Added more further it is also relevant to rely on the Judgment of Hon'ble High Court of Karnataka, Dharwad SCCH-23 13 MVC. No.4993/2022 Bench in MFA.101144/2020 (MV-I) in the case of Anand v/s Arjun and The Oriental Ins.Co.Ltd., wherein also the Hon'ble High Court of Karnataka, had interpreted Sec.129 of IMV Act had also held that non wearing of helmet is not a ground to deny the compensation. As such this aspect puts a last nail to the coffin for the contention urged by the respondent No.3.
20. It is necessary to reassert that in a claim for compensation filed under Section 166 of Motor Vehicles Act, 1988, the claimant is expected to prove the incident on basis of principle of preponderance of probabilities and the view taken by this Court is fortified by the decision rendered by the Hon'ble Supreme Court in Kusum and others V/s Satbir and others which is reported in 2011 SAR (CIVIL) 319. Further the Hon'ble Supreme Court in case of Bimla Devi and others v. Himachal Road Transport Corporation and others reported in (2009) 13 SCC 530 has observed that, it is necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants are merely required to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. Further the Hon'ble High Court of Karnataka in National Insurance Co. Ltd. Vs. Krishnappa and another reported in 2001 ACJ 1105, where the Hon'ble High Court of Karnataka considering the fact that the rider of the offending vehicle SCCH-23 14 MVC. No.4993/2022 was not examined to prove any contributory negligence on the part of scooterist held that the accident had occurred due to rash or negligent driving by the rider of the offending van. Even in the instant case the rider of the TVS Moped is not examined to show that there was no negligence on his part and even otherwise the IO, as already observed, has clearly opined that the accident occurred only due to the fault of the rider of the motorcycle and he was charge sheeted. Another important aspects to be noted here is, respondents did not made any endevour to examine the rider of the insured motorcycle. In the absence of which mere contention of the respondent No.3 without there being any evidence cannot be trusted as a gospel truth. Viewed from any angle this court does not find any reason to distrust the version of the petitioners herein. The discussion supra makes it is abundantly clear that, the accident occurred solely due to the rash negligent riding of the TVS Moped by its rider. As such, this Tribunal answers issue No.2 In the Affirmative.
21. ISSUE NO.2 : The petitioners claim that, petitioners are the parents of the deceased. To prove the same, petitioner No.1 filed affidavit-in-lieu of her chief-examination and deposed about the above relationship. The Aadhar cards marked at Ex's.P.15 & 16 and contents of the police papers do fortify the said fact. This Court will not loose sight of the fact that, the petitioner No.1 and 2 are the parents of deceased. The evidence discloses that deceased is the son SCCH-23 15 MVC. No.4993/2022 who is a one of the bread winner to the family and as such the petitioners were dependent on deceased. It is pertinent to note that, this relationship of the petitioners with the deceased has not been disputed by the respondent. Since the evidence led by the petitioners is satisfactory and also taking into consideration the fact that there are no rival claimants, this Tribunal hold that the petitioners are the legal representative of the deceased. Therefore, petitioners are the legal heirs and dependents of deceased. Hence, this Tribunal answers to issue No.2 In the Affirmative.
22. ISSUE NO.3: In this case the petitioners have claimed the compensation of Rs.39,60,000/- on the death of deceased Mahesh. H.R in the road traffic accident. The petitioners contended that, deceased was working as a Driver in KHT Chevrolet (A Division of Morzaria real Tech) and getting a gross salary of Rs.13,535/- p.m.
23. In order to prove the factum of income the petitioners have produced Ex.P.14 being salary slip. On perusal of the same the total salary is Rs.13,535/-. In order to prove the same the petitioners has also got examined Maintenance and Technical Supervisor working at KHT as PW.2 wherein during the course of cross examination he admitted gross salary of Rs.13,535/-. Therefore, Rs.13,535/- has to be taken into consideration as monthly income of the deceased.
SCCH-23 16 MVC. No.4993/202224. The petitioners have produced the Driving Licence to show the age of the deceased as per Ex.P17. The contents ingrained in the driving licence of the deceased discloses the date of birth as 10.07.1989 and the accident had taken place on 28.09.2020 and it shows that, at the time of accident the deceased was aged about 31 years. Hence the proper multiplier applicable to the case on hand is '16'.
25. As per the decision of Hon'ble Apex Court reported in 2017 ACJ 2700 (SC) (National Insurance Company Limited Vs Pranay Sethi and others), if the person died in the motor accident, the income with respect to the future prospect has to taken into consideration while awarding compensation. The Hon'ble Apex Court has provide the chart for age of the deceased and percentage for future prospects in between below the age of 40 years 40%, 40 years to 50 years 25% and 50 to 60 years 10%. The deceased is not a permanent Employee and not a fixed salary person and he died at the age of 31 years. Therefore, in this case, 40% income has to be taken into consideration for future prospects. Further as stated above that, as on the date of accident, deceased aged about 31 years and as such, 40% is added to the income of the deceased, then it comes to Rs.18,949/- p.m. (Rs.13,535 + 5,414/- i.e. 40%).
26. Further as stated above that, deceased was a bachelor, as per the decision reported in 2009 ACJ 1298 in SCCH-23 17 MVC. No.4993/2022 between Sarla verma V/s. Delhi Transport Corporation, the 50% of the income of the deceased shall be deducted towards his personal expenses as the deceased unmarried, thereby the 50% income of the deceased has to be deducted for his personal expenditure. On such deduction, the income of the deceased comes to Rs.9,475/- p.m. (Rs.18,949 X 50/100).
27. The income of the deceased is taken as Rs.9,475/- p.m. and the multiplier '16' is applied, then the loss of dependency comes to Rs.18,19,200/- (Rs.9,475 X 12 X 16) Considering the above facts, this Tribunal deems it just and reasonable to grant for compensation of Rs.18,19,200/- under the head of loss of dependency.
28. In this case, petitioners No.1 and 2 are the father and mother of the deceased and as per the decision reported in (2018) 12 SCC 130 between Magma General Insurance Company Limited V/s Nanu Ram alias Chuhru Ram and others, the petitioner is entitled for filial consortium, as the 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 of their child during their lifetime. Children are valued for their love, affection, companionship and their oral in the family unit. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are SCCH-23 18 MVC. No.4993/2022 entitled to be awarded loss of consortium under the head of Filial Consortium. 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. Children are valued for their love and affection, and their role in the family unit. The Hon'ble Apex Court in the decision reported in (2020)9 SCC 644 in the case of the New India Assurance Company Ltd V/s Smt.Somwati & others, has held that the claims Tribunal shall award Parental and Filial Consortium in a sum of Rs.40,000/-. Therefore, petitioners No.1 and 2 are entitled for Rs.40,000/- each under the head of Filial consortium.
29. Further, as law laid down by the Hon'ble Appex court in National Insurance company Vs Pranay Sethi and others, the compensation towards loss to the estate, funeral expenses and consortium to be awarded. Hence, this Tribunal award Rs.16,500/- towards loss t o estate and Rs.16,500/- towards funeral expenses as enhanced at the rate of 10% on every 3 years.
30. The calculation table stands as follows :
Compensation heads Compensation amount 1. Towards loss of dependency Rs.18,19,200/- 2. Towards loss of Consortium to Rs.80,000/- the petitioners No.1 & 2 3. Towards loss to estate Rs.16,500/- SCCH-23 19 MVC. No.4993/2022 4. Towards transportation of Rs.16,500/- dead body funeral and obsequies ceremony expenses Total Rs.19,32,200/-
31. REGARDING INTEREST & LIABILITY: Having regard to the nature of the claim and current bank rate of interest, this Tribunal is of the view that if interest at the rate of 6% per annum is awarded it would meet the ends of justice.
32. While answering the issue No.1 this Tribunal comes to the conclusion that, accident occurred due to the negligence of the rider of TVS Moped bearing registration No.KA-54-L-7430. The petitioners contended that the respondent No.1 is the driver, respondent No.2 is the owner and the respondent No.3 is the insurer of the said vehicle hence they are jointly and severally liable to compensation. The respondent No.3 admitted the issuance of policy in respect of the offending vehicle. The respondent No.3 contended that at the time of the accident the rider of the TVS Moped bearing registration No.KA-54-L-7430 was not holding driving license, hence it is violation of terms and conditions of the policy as such they are not liable to pay compensation to the petitioner. In support of this contention the official of the respondent No.3 company official is examined as RW.1. In his examination in chief he deposed as per contentions taken by them during the course of written SCCH-23 20 MVC. No.4993/2022 statement. He got marked the policy copy as per Ex.R1. In the cross examination he deposed that he is giving evidence based on the police documents and he admitted the issuance of insurance policy and same is valid. The chargesheet has been filed as against the rider of the insured vehicle. He denied the suggestion that the respondent No.2 has not violated the any terms and conditions of the policy and he denied that he is deposing falsely. By perusing the chargesheet marked as per Ex.P5 it is clear that the charge sheet is filed against the rider for the offense punishable U/Sec.279, 304(A) of IPC and U/Sec 3(1), 181, 5, 180, 134(A&B), 187 of M.V.Act. The charges are leveled against the owner of the motorcycle i.e., respondent No.2. The respondent No.2 is the owner of the motorcycle and the said motorcycle was driven by the rider who does not have DL and he caused this accident. Further it is pertinent to note that IO has given Notice u/s 133 of IMV Act as per Ex.P.7 and the said notice was replied as per Ex.P.8 wherein the owner of the offending motorcycle has admitted the involvement of the vehicle. He further replied that at the time of accident the rider by name Chandrashekar. K.R was not having valid DL. Hence it is clear that the respondent No.2 has violated the terms and conditions of the policy. Further it is clear that the respondent No.2 knowing well that the rider of the motorcycle was not holding driving license permitted Chandrashekar. K.R to ride the motorcycle. Hence it is also SCCH-23 21 MVC. No.4993/2022 clear that the respondent No.2 has violated the policy condition.
33. Further, the petitioner has relied on a decision reported in (2018) 3 SCC 208 in the case of Pappu V/s Vinod Kumar Lamba, (2018) 9 SCC 650 in the case of Shamanna V/s Oriental Ins.Co.Ltd and contended that even though there is violation of terms and conditions of the policy the insurance company is liable to pay compensation to the petitioner. But the facts and circumstances stated in the said cases and present case on hand are entirely different. In the above said judgments it is held that in case of fake/invalid driving license the insurance company has to prove that the owner of the motor vehicle need to establish that the owner was aware of fact that license was fake/invalid and still permitted the driver to drive the vehicle, in that circumstances the insurance company is not liable to pay compensation, if the insurance company failed to prove that even the owner of the vehicle knowing that the driver vehicle was having fake/invalid driving license permitted the driver to drive the vehicle them insurance company is liable to pay compensation to the petitioner. But in the present case on hand the rider without DL was riding the motorcycle and caused this accident and it is not the case of fake/invalid driving license. Hence with due respect to the above said judgment same are not applicable to the present case on hand. Further more the petitioner has also relied on the SCCH-23 22 MVC. No.4993/2022 decision of the Hon'ble High Court of Karnataka in MFA 9827/2012 in the case of the New India Assurance Company Limited Vs. Sadhika & Others. The above cited decision is rendered under workman's compensation Act. Added more it is also the case of invalid and fake DL. Hence the ratio cannot be made applicable to the instant case on hand.
34. On the other had the learned counsel for the respondent No.2 relied on the judgment of Hon'ble High Court of Karnataka in M.F.A.No.3297/2019 in the case of Smt.Adilakshmamma and Others Vs., Sri. Raju and other and contended that when the owner knowing that rider of the motorcycle was not holding driving license and handed over his motorcycle to the rider who is not having driving license then the owner is liable to pay compensation to the petitioner. In this case on hand also the respondent No.2 is the owner of the motorcycle and he is knowing well that the rider is not having driving license and permitted the rider to ride his motorcycle and the rider caused this accident, hence the respondent No.3 is not liable to pay compensation to the petitioner, but the respondent No.2 who is the owner of the motorcycle is liable to pay compensation to the petitioner. The said authority relied by the learned counsel for the respondent No.3 is applicable to the present case on hand.
35. Further on the same point of law it is also relevant to rely on the judgment in MFA-6154/2019 in the case of SCCH-23 23 MVC. No.4993/2022 Smt. Hemalatha @ Hema @ Hemavathi and others v/s Bajaj Allianz Gen.Ins.Co.Ltd, wherein the Hon'ble High Court of Karnataka after considering the judgment of the Apex Court in (I) Pappu V/s Vinod Kumar Lamba, (ii) Bishan Devi v. Surbakshi Singh (iii) Shamanna V/s Oriental Ins.Co.Ltd., (iv) Iffco Tokio Gen.Ins.Co.Ltd V/s Geeta Devi (v) National Ins.Co.Ltd., V/s Swarna Singh it clearly distinguished the factum of no DL and fake DL and observed as hereunder :
27. Learned Counsel for the appellants relied on the judgment of the Hon'ble Supreme Court in the case of Swaran Singh's, Pappu's, and Shamanna'scases referred to supra, to contend that, even if there is no driving license the insurer is liable to pay the damages to the claimants and recover the same from the owner of the vehicle. Those judgments referred to the principle of pay and recovery in case of breach of policy condition for disqualification of the driver to hold the license or holding of an invalid driving license. They did not relate to a case of no driving license at all.
28. Learned counsel for the appellants/claimants relied on Bishan Devi's case referred to supra to contend that even in case of no license also, the insurer is liable.
Plain reading of the said judgment shows that in that case it was held that the insurer had failed to prove its defence that vehicle was driven by a person without license. In the present case the defence of the insurer that the offending vehicle was driven by a person having no license and the same is proved. Therefore, the said judgment is not applicable to the facts of the present case.
36. Reverting back to the factual matrix, respondent.No.2 the owner of the vehicle neither contested the petition by filing written statement nor adduced any evidence claiming that he did not consciously permit the rider to ride the vehicle. Further the reply given to 133 notice SCCH-23 24 MVC. No.4993/2022 as per Ex.P8 discloses that the owner of the vehicle himself had stated on the illfated day of accident the vehicle was ridded by one Chandrashekar K R. This reply as per Ex.P8 itself reflects that the respondent No.2 has consciously handed over the vehicle to the person who was not having valid DL. The said act of the respondent No.2 is a clear breach of fundamental breach of policy condition within the meaning of Sec149(2)(a)(ii) of MV Act. The respondent No.2 being the owner of the motorcycle bearing registration No.KA-54-L-7430 is liable to pay compensation to the petitioner with interest at the rate of 6% p.a from the date of petition. Under such circumstances the insurance company cannot fastened with a liability of pay and recover that there is clear breach of conditions. The respondent No.2 is stated to be the owner of the offending vehicle is vicariously liable to pay the compensation awarded by this Tribunal. Accordingly, I answer the issue No.3 in partly in the affirmative.
37. ISSUE NO.4 : In view of the discussion made supra, this Tribunal proceeds to pass the following :
ORDER The petition filed under Section 166 of M.V. Act 1988, is hereby partly allowed with costs in the following terms :
The petitioners are entitled for compensation of Rs.19,32,200/- with interest at the rate of 6% SCCH-23 25 MVC. No.4993/2022 p.a. from the date of claim petition till realization of the entire award amount.
The respondent No.2 / owner of motorcycle bearing Reg.No.KA-54-L-7430 is liable to pay and directed to deposit the compensation amount within a period of one month from the date of award.
On deposit of the award amount together with interest, the claimants are entitled for the compensation amount by way of apportionment as follows :
Petitioner No.1 - 80%
Petitioner No.2 - 20%
Out of the share amount of Petitioner No.1 a sum equal to 25% shall be deposited in her name in any Nationalized or Scheduled Bank of her choice for a period of 3 years and the remaining 75% shall be released to her through E-payment on proper identification and verification. However the said petitioner is at liberty to withdraw the periodical interest accrued on her deposit amount from time to time.
After deposit of compensation amount the office is directed to release the entire share with interest of the petitioner No.2 through SCCH-23 26 MVC. No.4993/2022 NEFT/RTGS by way of E-payment on proper identification.
The petition is dismissed against respondent No.3/ Liberty GIC Limited.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
(Dictated to the Stenographer directly on computer & printout taken by him, then corrected and pronounced by me in the open court on this the 1st day of March 2024).
(Aalok. A.N) XXI Addl. Small Causes Judge & ACMM, Bengaluru.
ANNEXURES List of witnesses examined for the petitioner/s:
PW.1 : Smt. Kumaramma PW.2 : Sri. Mahesha Kumar. T
List of documents got marked for the petitioner/s:
Ex.P.1 FIR
Ex.P.2 Complaint
Ex.P.3 Spot Mahazar
Ex.P.4 Spot Sketch
Ex.P.5 Chargesheet
Ex.P.6 Inquest mahazar
Ex.P.7 Police notice
Ex.P.8 Reply to the police notice
Ex.P.9 Indemnity bond
SCCH-23 27 MVC. No.4993/2022
Ex.P.10 IMV Report
Ex.P.11 PM Report
Ex.P.12 C/c of order sheet in CC.7115/2020 Ex.P.13 Death Certificate Ex.P.14 Pay slip Ex.P.15 Notarized copy of Aadhar card of petitioner No.1 Ex.P.16 Notarized copy of Aadhar card of petitioner No.2 Ex.P.17 Notarized copy of DL of deceased List of witnesses examined for the respondent/s:
RW.1 : Sri. Sandeep. S.K List of documents got marked for the respondent/s :
Ex.R.1 True copy of Insurance policy
(Aalok. A.N)
XXI Addl. Small Causes Judge
& ACMM, Bengaluru.