Bangalore District Court
Manoj S.R vs Kariyappa.A.K on 17 September, 2024
KABC020062932020
BEFORE THE COURT OF 10th ADDITIONAL SMALL CAUSES
AND MOTOR ACCIDENT CLAIMS TRIBUNAL, AT:
BENGALURU
(SCCH-16)
Present: Sri. Mohammed Yunus Athani
B.A.,LL.B.,
X Additional Court of Small Causes
& Member, MACT, Bengaluru.
MVC No.1168/2020
Dated this 17th day of September, 2024
Petitioner: Sri Manoj S. R.,
S/o Rangaiah S.,
Aged about 21 years,
Represented by his natural guardian
Lingaraju M. G.
(Foster son to Lingaraju M. G.)
S/o Govinda Prasad C.,
Aged about 45 years,
R/at Obalapura, Sreerampura Hobli,
Hosadurga Taluk,
Chitradurga District.
(Sri D.G. Manjunath, Advocate)
Vs.
Respondents: 1. Sri Kariyappa K.,
S/o Kariyappa,
2 MVC 1168/2020
R/at Near Chowdeswari Temple,
Devarayanapatna
Main Road, Batawadi,
Tumkur.
(RC owner of the M/c bearing
No. KA-06-ES-1449)
(Ex-parte)
2. United India Insurance Co. Ltd.,
Regional Office, Motor Third
Party Claims HUB, V & VII Floor,
Krushi Bhavan, Hudson Circle,
Nrupathunga Road,
Bengaluru - 01.
(Policy No.
2414003118P113843723 valid
from 26-01-2019 to
25-01-2020)
(Sri R. Basavaraja, Advocate)
JUDGMENT
This petition is filed under Section 166 of Motor Vehicles Act, seeking compensation of Rs.30,00,000/- from the respondents on account of grievous injuries sustained by the petitioner in Road Traffic Accident.
2. The brief facts of the case are as follows : 3 MVC 1168/2020
On 14-06-2019 at about 8.30 p.m., the petitioner was a pillion rider on the motorcycle bearing No. KA-06-ES-1449, being ridden by one Yashawanth on Srirampura - Hosadurga road. When they were near Aralahalli Gate, Hosadurga Taluk, Chitradurga District, the rider of said motorcycle rode the same in a rash and negligent manner, endangering to human life, without observing any of the traffic rules and regulations, lost control and fell down into the road side ditch. Due to said impact the petitioner fell down and sustained grievous injuries. Immediately after the accident, he was shifted to Government Hospital, Hosadurga, wherein he took treatment and then he was shifted to Nanjappa Hospital, Shimogga, wherein he took treatment as an inpatient and undergone surgery. Earlier to the accident, he was working as coolie and earning a sum of Rs.20,000/- per month. But, due to the accidental injuries, he became permanently disabled and thereby lost his earning capacity. The Srirampura Police have registered the 4 MVC 1168/2020 case against the rider of the said two-wheeler for the offences punishable under Section 279 and 337 of I.P.C. The respondent No.1 is the owner and respondent No.2 is the insurer of the offending vehicle. Hence, they are jointly and severally liable to pay compensation to the petitioner. Therefore, it is prayed to allow the petition and award compensation of Rs.30,00,000/- with interest.
3. On service of notice to the respondents, the respondent No.2 appeared through its counsel and filed the written statement. Whereas, the respondent No.1 remained absent. Hence, the respondent No.1 is placed as ex-parte.
4. The respondent No.2 in its written statement has denied all the allegations made in the petition. It has admitted the issuance of insurance policy in respect of motorcycle bearing No.KA-06-ES-1449 and its validity as on the date of accident. It has contended that, the petition is bad for non compliance of provision under Sections 134(C) 5 MVC 1168/2020 and 158(6) of M.V. Act. It has denied the age, income and avocation of the petitioner, injuries, medical expenses and treatment taken by him. It has contended that, the rider of the insured vehicle was not holding valid and effective driving licence to rode the same and respondent No.1 knowingly and willfully entrusted his vehicle to such a person at the time of accident. After investigation concerned police have filed charge-sheet against the rider of the offending vehicle under Sec.3 R/w Sec.181 of M.V.Act. The compensation claimed is highly excessive and exorbitant. Further it is contended that, the insured vehicle was not at all involved in the accident nor the petitioner sustained injuries as a result of the alleged accident, said to have occurred on 14-06-2019. The accident has taken place on 14-06-2019, whereas the complaint/FIR has been lodged to the concerned Police Station on 22-06-2019 i.e., after lapse of 8 days from the date of occurrence of the alleged accident. Further, it sought for permission to contest even 6 MVC 1168/2020 on behalf of respondent No.1 under Section 170 of the M.V. Act. For the above denials and contentions, it prayed for dismissal of the petition.
5. On the basis of rival pleadings of both the sides, the following issues are framed:
ISSUES
1. Whether the petitioner proves that, he has sustained grievous injuries due to the Road Traffic Accident, alleged to have occurred on 14-06-2019 at about 8.30 p.m., due to the rash and negligent riding of the rider of the Motorcycle bearing registration No. KA-06-ES-1449?
2. Whether the petitioner is entitled for compensation? If so, what is the quantum and from whom?
3. What order or Award?
6. In order to prove his case, the petitioner has got examined his natural guardian as P.W.1 and got marked 16 7 MVC 1168/2020 documents as Ex.P.1 to 16. Further, he has got examined one more witness namely Dr. Sreedhara K. C., as P.W.2 and closed his side. On the other hand, the respondents No.2 has got examined its Administrative Officer as R.W.1 and got marked 4 documents as Ex.R.1 to 4. Whereas, the respondent No.1 is placed ex-parte.
7. I have heard the arguments of both the sides and perused the entire material placed on record.
8. My findings on the above issues are as under:
Issue No.1: Affirmative Issue No.2: Partly Affirmative Issue No.3: As per the final order, for the following:
REASONS
9. Issue No.1: It is specific case of the petitioner that, on 14-06-2019 at about 8.30 p.m., he was a pillion rider on the motorcycle bearing No. KA-06-ES-1449, being ridden by one 8 MVC 1168/2020 Yashawanth on Srirampura - Hosadurga road. When they were near Aralahalli Gate, Hosadurga Taluk, Chitradurga District, the rider of said motorcycle rode the same in a rash and negligent manner, endangering to human life, without observing any of the traffic rules and regulations, lost control and fell down into the road side ditch. Due to said impact the petitioner fell down and sustained grievous injuries.
10. In order to prove his case, the petitioner has examined his natural guardian as P.W.1 and got marked total 16 documents as Ex.P.1 to 16. Out of the said documents, Ex.P.1 is true copy of F.I.R., Ex.P.2 is true copy of first information statement, Ex.P.3 is true copy of wound certificate, Ex.P.4 is true copy of spot mahazar, Ex.P.5 is true copy of sketch, Ex.P.6 is true copy of vehicle seizure mahazar, Ex.P.7 is true copy of M.V.A. Report, Ex.P.8 is true copy of charge-sheet, Ex.P.9 are discharge summaries (total
2), Ex.P.10 are medical bills (total 106), Ex.P.11 are medical 9 MVC 1168/2020 prescriptions (total 42), Ex.P.12 is true copy of Voter ID, Ex.P.13 is notarised copy of Aadhar card, Ex.P.14 is recent examination report with copy of disability assessment manual, Ex.P.15 is Neuro-psychological report and Ex.P.16 are CT scan films (total 2).
11. On meticulously going through the police documents marked as Ex.P.1 to 8, prima-facia it reveals that, on 14-06- 2019 at about 8.30 p.m., the petitioner was a pillion rider on the motorcycle bearing No. KA-06-ES-1449, being ridden by one Yashawanth on Srirampura - Hosadurga road. When they were near Aralahalli Gate, Hosadurga Taluk, Chitradurga District, the rider of said motorcycle rode the same in a rash and negligent manner, endangering to human life, without observing any of the traffic rules and regulations, lost control and fell down into the road side ditch. Due to said impact the petitioner fell down and sustained grievous injuries. The investigation officer in his final report has clearly stated that, on the alleged date, time 10 MVC 1168/2020 and place of accident, due to rash and negligent driving of the motorcycle bearing Reg. No. KA-06-ES-1449 the said accident has taken place and the petitioner has sustained grievous injuries on vital parts of his body.
12. The P.W.1, who is the natural guardian of the petitioner, has reiterated the entire averments made in the petition. The said facts have remained undisputed by the owner of offending vehicle/respondent No.1, as he did not choose to appear and contest the case of petitioner. Whereas, though the respondent No.2 insurance company has specifically denied the said facts in its written statement and in the cross-examination of P.W.1., it has not produced any rebuttal evidence to disprove the oral and documentary evidence placed on record by the petitioner. Further, the P.W.1 has unequivocally denied the suggestion made by the learned counsel for respondent No.2 that, the alleged accident has not occurred due to rash and negligent driving of the rider of the motorcycle bearing Reg. No. KA-06-ES- 11 MVC 1168/2020 1449, but some unknown vehicle has hit the said motorcycle and ran away. Further, he has clearly denied the suggestion that, in order to claim compensation he has lodged false complaint against the driver of motorcycle bearing Reg. No. KA-06-ES-1449 and got created false police documents and medical bills. Though, the learned counsel for respondent No.2 has cross-examined P.W.1 in length, nothing worth has been elicited from his mouth which creates doubt on the veracity of his evidence.
13. Further, on meticulously going through the Ex.P.3 wound certificate, Ex.P.9 discharge summaries, Ex.P.14 recent examination report, Ex.P.15 Neuro-psychological report and Ex.P.16 CT scan films (total 2), it clearly reveals that, the petitioner has suffered grievous injuries in a road traffic accident and he has suffered subdural hematoma left cerebral skull, hemorrhagic contusions in cavity frontal region, abrasion on face with head injury. The respondent 12 MVC 1168/2020 No.2 has not led any evidence to substantiate the contentions taken in its written statement. In such circumstances and in the light of above observations, it can be safely held that, the respondent No.2 has failed to rebut the oral and documentary evidence placed on record by the petitioner regarding the rash and negligent driving of the rider of the motorcycle bearing Reg. No. KA-06-ES-1449 and there is nothing on record to disbelieve the oral and documentary evidence placed on record by the petitioner.
14. Further, as per the Motor Vehicle Accident Report, which is marked as Ex.P.7, the accident was not caused due to any mechanical defects in the vehicle involved in the accident. When the accident was not due to the any mechanical defects in the offending vehicle, then it can be presumed that, the said accident had occurred due to negligence of the rider of offending vehicle. Further, the investigation officer has clearly stated in the final report, marked as Ex.P.8, that, the alleged accident has occurred 13 MVC 1168/2020 due to rash and negligent driving of the offending vehicle bearing Reg. No.KA-06-ES-1449. There is absolutely no rebuttal evidence placed on record by the respondents and even nothing is elicited in the cross-examination of P.W.1 to show that, there is no fault or negligence on the part of rider of offending motorcycle. In such circumstances, there is no impediment to believe the final report filed by the investigation officer and other police records, regarding the negligence of the rider of offending vehicle, place, date and time of accident, involvement of the offending vehicle and injuries caused to the petitioner in the said accident.
15. Further, it is well settled principle of law that, in a case relating to the Motor Accident Claims, the claimants are not required to prove the case as required to be done in a criminal trial. The Hon'ble Supreme Court in the case of Parameshwari V/s Amir Chand and others, reported in (2011) SCC 635, has clearly held that, "in a road accident 14 MVC 1168/2020 claim cases the strict principle of proof in a criminal case are not required."
16. The Hon'ble Supreme Court, in the case of Bimla Devi and others V/s Himachal Road Transport Corporation and others, reported in (2009) 13 SCC 513, has clearly held that, " in a case relating to the Motor Accident Claims, the claimants are merely required to establish their case on touch stone of preponderance of probability and the standard of proof on beyond reasonable doubt could not be applied."
17. Therefore, in the light of observations made in the above cited decisions and for the above stated reasons, this Court is of the considered opinion that, the petitioner has successfully proved that, he has sustained grievous injuries in a motor vehicle accident, occurred on 14-06-2019 at about 8.30 p.m., on Srirampura - Hosadurga road, near Aralahalli Gate, Hosadurga Taluk, Chitradurga District, due 15 MVC 1168/2020 to rash and negligent driving of the rider of motorcycle bearing Reg. No. KA-06-ES-1449. Hence, I answer Issue No.1 in Affirmative.
18. Issue No.2: While answering above issue this Court has come to conclusion that, the petitioner has successfully proved that, the accident has caused due to rash and negligent driving of the rider of motorcycle bearing Reg. No.KA-06-ES-1449 and he has sustained subdural hematoma left cerebral skull, hemorrhagic contusions in cavity frontal region, abrasion on face with head injury. Therefore, this Court is of the further opinion that, the petitioner is entitled for compensation under various heads. The damages are to be assessed under two heads i.e. pecuniary damages, such as medical treatment, attendants, transport, actual loss of earning, future loss of earning etc., and non pecuniary damages, such as mental and physical shock, loss of amenities, loss of expectation of life, loss of 16 MVC 1168/2020 prospects of marriage etc., The petitioner is entitled for compensation under the following heads:
i) Towards loss of future income: In order to determine the compensation towards loss of future income, the age, monthly income and disability of the petitioner are to be determined. To prove his age, the petitioner has produced the copy of his Voter ID card, which is marked as Ex.P.12. As per Ex.P.12, the date of birth of the petitioner is 16-07-1999. The accident has taken place on 14-06-2019 at about 8.30 P.M. Therefore, the age of the petitioner as on the date of accident is 20 years. Further, the P.W.2, who is the doctor who has examined and treated the petitioner has clearly deposed in his examination-in-chief affidavit that, on clinical examination he found that, the petitioner has suffered severe head injury, left FTP SDH, basifrontal contusion and SAH and for the said injuries the petitioner has underwent surgery i.e. left FTP de-compressive craniectomy with evacuation of SDH. Further he has 17 MVC 1168/2020 deposed that, on clinical and radiological examination of injuries suffered by the petitioner, he found that the petitioner has 33.3% disability to whole body. The oral evidence of P.W.2 is fully corroborated with documentary evidence. The Ex.P.3 wound certificate, Ex.P.9 discharge summaries, Ex.P.14 recent examination report, Ex.P.15 Neuro-psychological report and Ex.P.6 CT scan films (total 2) clearly speaks that, the petitioner has suffered severe head injury, left FTP SDH, basifrontal contusion and SAH and for the said injuries the petitioner has underwent surgery i.e. left FTP de-compressive craniectomy with evacuation of SDH. The P.W.2 has clearly denied the suggestions made in to him that, the Ex.P.14 to 16 documents are not related to the petitioner, there is no disability to him and he has exaggerated the percentage of disability to the petitioner. It is pertinent to note that, the P.W.2 has deposed in his evidence that, the accident has occurred on 14-06-2019 and he has assessed the disability to the petitioner on 19-12- 18 MVC 1168/2020
2022, which is after lapse of three and half years from the date of injuries caused to the petitioner. Further, he has clearly deposed that, the patient conscious and oriented to time, place, peson, left fronto parietal swelling, difficulty in walking, not abe to work, slow talks, right sided weakness. Though, the learned counsel for respondent No.2 has cross- examined P.W.2 in length, nothing worth has been elicited from his mouth which creates doubt on the veracity of his evidence. Therefore, considering the age of the petitioner, injuries sustained, duration of treatment and oral and documentary evidence on record, this Court is of the opinion that, considering the disability of 30% to the whole body of the petitioner would be justified. Hence, in the instant case the disability of 30% to the whole body of the petitioner is considered.
a) The P.W.1 has deposed in his evidence that, before accident the petitioner was working as coolie and was earning income of Rs.20,000/- per month. Further, he 19 MVC 1168/2020 has deposed that, due to grievous injuries suffered in the said accident petitioner is unable to do coolie work. The respondent No.2 has specifically denied the same. In such circumstances, the burden was on the petitioner to prove his avocation and income. But, the petitioner has failed to establish the same through cogent and corroborative evidence. He has not produced any document to show that, before accident he was working as coolie. Therefore, notional income is to be considered as per the guidelines of the Karnataka State Legal Services Authority. The accident took place in 2019. Hence, the notional income of the petitioner is considered as Rs.14,000/- per month and the annual income of the petitioner as Rs.1,68,000/-.
b) As per the ratio laid down in the case of Sarla Verma and others V/s Delhi Transport Corporation and another, reported in 2009 ACJ 1298, the appropriate multiplier for a person whose is aged about 20 years is 18. Therefore, loss of future income is Total annual income X 20 MVC 1168/2020 disability/100 X multiplier = Rs.1,68,000 X 30/100 X 18 = Rs.9,07,200/-.
ii) Medical expenses: The petitioner has deposed that, he has incurred expenses of Rs.10,00,000/- towards medical, conveyance, nourishment and other incidental charge etc. In order to prove the same, he has produced 106 medical bills, as per Ex.P.10. All the bills have been examined carefully and found that, in bill at Sl.No.1 the net amount is mentioned as Rs.2,32,800.50/-, but the petitioner while totaling the bills has calculated Rs.2,42,800/-,. Likewise, in bill at Sl.No.4 the net amount is Rs.360/-, but the petitioner while totaling the bills has calculated Rs.30,360/-. Therefore, excluding the above excess amount calculated by the petitioner, he is entitled for total compensation of Rs.4,40,653/- towards medical expenses.
iii) Pain and sufferings: In the present case the petitioner has sustained grievous injuries on his head i.e. suffered severe head injury, left FTP SDH, basifrontal 21 MVC 1168/2020 contusion and SAH. As per Ex.P.9 discharge summaries, the petitioner has taken treatment as inpatient for 15 days from 15-06-2019 to 25-06-2019 and 10-08-2019 to 13-08-2019 in Nanjappa Hospital, Shivamoga. He has also underwent surgery. Further as per P.W.2, the said injuries have caused physical disability to the petitioner. In such circumstances, certainly the petitioner would have suffered pain and sufferings. Therefore, taking into considering the injuries sustained and disability to the petitioner, this Court is of the opinion that, an compensation amount of Rs.60,000/- is to be awarded to the petitioner towards pain and sufferings.
iv) Attendant charges: As per Ex.P.9 discharge summaries, the petitioner has taken treatment as inpatient for 15 days from 15-06-2019 to 25-06-2019 and 10-08-2019 to 13-08-2019 in Nanjappa Hospital, Shivamoga. He might have spent considerable amount towards attendant charges during that period. Therefore, compensation of 22 MVC 1168/2020 Rs.1000 x 15 = Rs.15,000/- is awarded towards the attendant charges.
v) Food and nourishment: As per Ex.P.9 discharge summaries, the petitioner has taken treatment as inpatient for 15 days from 15-06-2019 to 25-06-2019 and 10- 08-2019 to 13-08-2019 in Nanjappa Hospital, Shivamoga. Therefore, compensation of Rs.800 x 15 = Rs.12,000/- is awarded towards food and nourishment charges.
vi) Conveyance expenses: The petitioner is the resident of Obalapura, Sreerampura Hobli, Hosadurga Taluk, Chitradurga District, the accident has taken place at Srirampura - Hosadurga road, near Aralahalli Gate, Hosadurga Taluk, Chitradurga District and he has taken treatment at Nanjappa Hospital, Shivamoga. Taking into consideration the distance in between all the above three places, compensation of Rs.6,000/- is awarded towards conveyance.
23 MVC 1168/2020
vii) Loss of income during treatment period: The petitioner has taken treatment for 15 days as inpatient at Nanjappa Hospital, Shivamoga, for the grievous injuries sustained by him. He might have taken rest for about 2 months and lost his income for the said period. Therefore, Rs.14,000 x 2 = Rs.28,000/- is awarded towards loss of income during treatment period.
viii) Loss of amenities: It is evident from the documents placed on record that, as on the date of accident the age of the petitioner was 20 years and unfortunately he has suffered severe injuries to his head. The evidence shows that, he has suffered permanent disability to the extent of 30% to the whole body. Therefore, awarding compensation of Rs.40,000/- towards loss of amenities would be just and reasonable.
ix) Future medical expenses: The P.W.2 has not stated anything about the need of further treatment to the petitioner and nothing with regard to future medical 24 MVC 1168/2020 expenses. In such circumstances, the question of awarding future medical expenses does not arise at all. Therefore, no compensation is awarded in this particular head.
19. Accordingly, the petitioner is entitled for compensation under different heads as follows :
1. Loss of future income Rs. 9,07,200-00
2. Medical expenses 4,40,653-00
3. Pain and sufferings 60,000-00
4. Attendant charges 15,000-00
5. Food and nourishment 12,000-00
6. Conveyance expenses 6,000-00
7. Loss of income during 28,000-00 treatment period
8. Loss of amenities 40,000-00
9. Future medical expenses Nil Total Rs. 15,08,853-00 In all, the petitioner is entitled for compensation of Rs.15,08,853/- with interest at the rate of 6% per annum from the date of petition till its realization. 25 MVC 1168/2020
20. Now the question before this Court is, who is liable to pay the above compensation amount to the petitioners. Admittedly, as on the date of accident, the respondent No.1 is the owner and respondent No.2 is the insurer of the offending vehicle. Further, the evidence placed on record by the petitioner clearly establishes that, due to rash and negligent driving of the rider of offending vehicle bearing Reg. No. KA-06-ES-1449 the accident has occurred. In such circumstances, the respondent No.2 being the owner of said vehicle is vicariously liable to compensate for the damages caused by the said vehicle. The respondent No.1 being the insurer of the offending vehicle has to indemnify the respondent No.2.
21. The learned counsel for respondent No.2 vehemently argued that, the Ex.R.2 Insurance Policy clearly speaks that, the policy covers the risk provided the driver of offending vehicle holds an effective driving licence at the time of 26 MVC 1168/2020 accident and is not disqualified from holding or obtaining such a licence. Further, the Ex.P.8 charge-sheet produced by the petitioner himself clearly speaks that, on the alleged date, time and place of accident, the accused/rider of the offending vehicle bearing Reg. No. KA-06-ES-1449 rode the vehicle without having driving licence and hence in addition to the offence under Sec.279, 338 I.P.C., he has been charge-sheeted for offence U/Sec.181 R/w Sec.3 of Motor Vehicles Act. Further, the P.W.1 himself has clearly admitted in his cross-examination that, as on the date of alleged accident the rider of the offending vehicle bearing Reg. No. KA-06-ES-1449 was not holding driving licence to drive the said vehicle. In such circumstances, the respondent No.1/owner of offending vehicle who consciously handed over his vehicle to a person who did not possess driving licence, cannot be permitted to take the benefit of his wrong and the respondent No.2/Insurance Company is entitled to raise a defence under Sec.149(2) of Motor 27 MVC 1168/2020 Vehicles Act. In support of his arguments learned counsel for respondent No.2 relied on the following decisions:
i) Hemalatha @ Hema @ Hemavathi and others V/s Bajaj Allianz General Insurance Company Lts., and another, in M.F.A. No.6154/2019 (MV-D), judgment dated 14-12-2023, Para No.29, wherein the Hon'ble High Court of Karnataka has held that, " The owner of the vehicle neither contested the petition by filing written statement nor adduced any evidence claiming that, he did not consciously permit Arun Kumar to ride the vehicle. Arun Kumar rode the vehicle without driving license was not impeached by him. Thereby, the Tribunal was justified in holding that respondent No.2 permitted operating of the vehicle by an unauthorised person. The said act of respondent No.2 amounts to fundamental breach of policy condition within the meaning of Section of 149(2)(a)(ii) of the M.V. Act.
Therefore, the Tribunal was justified in exonerating the 28 MVC 1168/2020 insurer on the ground that, there is fundamental breach of policy condition."
ii) Smt. Adilakshmammama and others V/s Sri Raju B. and another, in M.F.A. No.3297/2019 (MV-D), judgment dated 13-04-2023, Para No.28, wherein the Hon'ble High Court of Karnataka has held that, " It is evident that, the Respondent No.1 Owner, who consciously handed-over his vehicle to a person who did not possess driving licence, cannot take the benefit of his own wrong, and the Insurance Company is entitled to raise a defence under Section 149(2) of M.V. Act. Admittedly in the instant case, Respondent No.1/Insured did not chose to contest the matter and it is evident from the records, especially the reply given by Respondent No.1/Owner, that rider was not possessing valid and effective driving licence. Under such circumstances, the Insurance Company cannot be fastened with liability of Pay and Recover when there is 29 MVC 1168/2020 clear breach of policy conditions and liability to pay compensation is on Respondent No.1/owner himself. The Tribunal considering the evidence on record has rightly fastened the liability to Respondent No.1/Owner, which does not call for any interference."
22. On the other hand, the learned counsel for petitioner vehemently argued that, it is settled principle of law that, the insurance company is liable to pay the third party and recover from the insured even if there is breach of any condition recognised under Sec.149(2) of M.V.Act, even if it is fundamental breach. In support of his arguments learned counsel for petitioner relied on the following decision:
New India Assurance Co. Ltd., Bijapur by its Divisional Manager V/s Yallavva and another, reported in ILR 2020 Kar 2239, wherein the Hon'ble High Court of Karnataka has clearly held that, " i) Having regard to Section 149(1) R/w Section 149(7), whenever a case falls under Section 149(2)(a) and the same is successfully 30 MVC 1168/2020 established or proved by the Insurance Company, as per the twin tests laid by the Hon'ble Supreme Court in Swaran Singh, nevertheless, the insurer or Insurance Company is liable to satisfy the award vis-à-vis a third party and is entitled to recover from the insured. This is irrespective of, the policy being an Act policy in terms of Section 147 pertaining to compulsory coverage of risks of third parties and other classes of persons stated therein or a policy covering other risks by specific contract being entered into in that regard and where additional premium is paid by the insured i.e., a contractual policy.
ii) The Insurer is liable to pay the third party and recover from the insured even if there is breach of any condition recognized under Section 149 (2), even if it is a fundamental breach (that is breach of condition which is the cause for the accident) and the insurer proves the said breach in view of the mandate under Section 149(1) 31 MVC 1168/2020 of the Act. But, no such order can be passed against the insurer, if, on the facts and circumstances of a case, a finding is given by the court that the third party (injured or deceased) had played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss to the insurer.
iii) The Court can also fasten the absolute liability on the insurer, if there is any breach of condition which is enumerated under Section 149(2) of the Act or any other condition of the policy if the Insurance Company has waived breach of any such condition or has taken the special responsibility to pay by collecting extra premium by covering any type of risk depending upon facts of each case.
iv) Thus, the rule of pay and recover is applicable in view of the mandate in Section 149(4) of the Act and even if there is a breach of the terms of the insurance 32 MVC 1168/2020 policy, the insurer is bound to satisfy the judgment and award as if it were a judgment debtor, even if it satisfies the twin tests enunciated by the Hon'ble Supreme Court under Section 149(4)(a) of the Act.
v) Before passing any order on the Insurance Company to pay and recover, the Court has to examine the facts and circumstances of each case and if it finds that the victim, injured or the deceased, in a particular case, was solely or jointly responsible for breach of such fundamental condition by playing fraud or in collusion with the insured, the Court may exercise its discretion not to fasten the liability on the insurer.
vi) However, the court should not adopt the above guideline as a general rule in all cases, but only under peculiar facts and circumstances of each case and on giving appropriate reasons.
vii) If the Insurance Company makes out a case under Section 149(2)(b) of the Act, then also the 33 MVC 1168/2020 Insurance Company has to satisfy the award so far as third party is concerned, as it is the duty of the Insurance Company to indemnify the insured on the basis of the policy of the insurance and even when the contract of insurance itself is void, nevertheless the liability to indemnify the insured would arise and insurer is entitled to recover from the insured.
viii) Thus, in a case where Section 149(2)(b) applies and the Insurance Company successfully establishes that the policy is void, in such a case also, the insurer is not absolved of its liability to satisfy the judgment or award as rights or obligations would flow even from a policy which is void vis-à-vis third party. In such a case, the insurer is not completely absolved of its liability, the insured would have to satisfy the award vis-à-vis the third party and recover from the insured the amount paid to the third party and may also have a right to seek damages from the insured.34 MVC 1168/2020
ix) The judgment of the Division Bench of this Court in Subramanyam, holding that a pay and recovery order cannot be made as there is no liability to pay or satisfy the award or decree in respect of a case falling under Section 149(2) is not correct. Hence, that portion of the judgment in Subramanyam, which states that if the case falls within the scope of Section 149(2) of the Act and the insurer is successful in establishing any of the defences as stated therein, it would be completely absolved of its liability to satisfy the award is also not correct and to that extent, it is held to be bad in law.
23. Admittedly, in the instant case, as on the date of alleged accident the rider of the offending vehicle bearing Reg. No. KA-06-ES-1449 was not holding driving licence to drive the said vehicle. But, in the present facts and circumstances of the case, the arguments advanced by the learned counsel for respondent No.2 does not holds good and the observations and ratio laid down in the above cited 35 MVC 1168/2020 decisions relied by him are not applicable to case in hand. On the other hand, the arguments advanced by the learned counsel for petitioner holds good and the observations and ratio laid down in the above cited decisions relied by him are aptly applicable to case in hand. Therefore, for the above stated reasons and in the light of ratio laid down in the above cited decisions, this Court comes to conclusion that, the respondent No.2 being the insurer of the offending vehicle is primarily liable to pay the above compensation amount to the petitioner and later recover the same from the owner of offending vehicle/respondent No.1. Accordingly, holding that the petitioner is entitled for compensation of Rs.15,08,853/- from the respondent No.2, with interest at the rate of 6% per annum from the date of petition till its realization, I answer Issue No.2 in Partly Affirmative.
24. ISSUE No.3: In view of the above findings, I proceed to pass the following order:
36 MVC 1168/2020
ORDER The petition is partly allowed with costs.
The petitioner is entitled to compensation of Rs.15,08,853/- (Rupees fifteen lakh eight thousand eight hundred and fifty three 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 to the petitioner within two months from the date of this order and recover the same from the respondent No.1 in the very proceedings by filing an execution petition.
Out of the compensation amount awarded to petitioner, 30% of the compensation amount with proportionate interest shall be deposited in his name as fixed deposit in any nationalized bank for the period of three years with liberty to draw the 37 MVC 1168/2020 accrued interest periodically and the remaining 70% amount with proportionate interest shall be released in favour of the petitioner through e- payment on proper identification and verification.
Advocate's fee is fixed at Rs.2,000/-. Draw award accordingly.
(Dictated to the stenographer, directly on computer, typed by him, corrected and then pronounced in the open court this the 17th day of September, 2024) (Mohammed Yunus Athani) Member, MACT, Bengaluru.
ANNEXURE Witnesses examined on behalf of petitioner:
PW1: Sri Lingaraju M. G. PW2: Dr. Sreedhara K. C.
Documents marked on behalf of petitioner:
Ex.P1: True copy of FIR
Ex.P2: True copy of First Information Statement
Ex.P3: True copy of Wound Certificate
Ex.P4: True copy of Spot Mahazar
Ex.P5: True copy of Sketch
38 MVC 1168/2020
Ex.P6: True copy of Vehicle Seizure Mahazar
Ex.P7: True copy of M.V.A. Report
Ex.P8: True copy of Charge-sheet
Ex.P9: Discharge Summaries (2 in nos.)
Ex.P10: Medical Bills (106 in nos.) Rs.4,80,653/-
Ex.P11: Medical Prescriptions (42 in nos.)
Ex.P12: True copy of Voter ID
Ex.P13: Notarized copy of Aadhar Card
Ex.P14: Recent Examination report with copy of
disability assessment manual
Ex.P15: Neuro Phychological Report
Ex.P16: CT Scan Film (2 in nos.)
Witnesses examined on behalf of respondents:
RW1: Sri N.G. Prasanth Documents marked on behalf of the respondents:
Ex.R1: Authorization Letter
Ex.R2: True copy of Policy
Ex.R3: Certified copy of Charge Sheet
Ex.R4: Letter to the R-1
(Mohammed Yunus Athani)
Member, MACT, Bengaluru.