Bangalore District Court
Thayamma vs Dharampal Transport on 29 February, 2024
KABC020000912021
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.18/2021
Dated: 29th February 2024
Petitioners 1. Smt. Thayamma,
W/o Somanna,
Aged about 50 years,
2. Sri Somanna,
S/o Shivanegowda,
Aged about 57 years,
Both are residing at
No.44-45, 3rd Cross, Krishna
Layout, Hulimavu, B.G. Road,
Bengaluru - 76.
Alternative Address:
Masthigowdana Doddi,
Palya Hobali,Tellanur,
Kollegal Taluk,
Chamarajanagar - 571 440.
(Sri S.J. Krishnaji Rao, Advocate)
Vs.
Respondents 1. M/s. Dharmapal Transport,
Rep. by Mr. Sudhir Kumar Varma,
2 (SCCH-16) MVC 18/2021
S/o Dharmapal Varma,
Aged about 47 years,
#D-6, 3rd Floor, Defense Colony,
Jung Pura Extension,
New Delhi - 110 014.
(Owner of water tanker
bearing No.HR-38-Y-5974)
(Sri B.S. Manu, Advocate)
2. Deleted
3. The Oriental Insurance Co. Ltd.,
T.P. Hub, # 44/45,
'Leo Shopping Complex',
4th Floor, Residency Road Cross,
Bengaluru - 560 001.
Rep. by the Manager.
(Insurer of water tanker
bearing No.HR-38-Y-5974)
Policy No.215402/31/2021/57
validity period 01-05-2020 to
30-04-2021
(Sri Vijayendra D. Joshi,
Advocate)
JUDGMENT
The petitioners have filed this petition under Section 166 of M.V. Act 1989, seeking compensation of Rs.50,00,000/- from the respondents for the accidental death of Ananda S., who died due to the accident caused by the driver of the Water Tanker bearing No.HR- 38-Y-5974.
3 (SCCH-16) MVC 18/2021
2. The facts in brief stated in the petition are as under;
On 26-07-2020, at about 3.15 p.m., the deceased was carefully riding his motorcycle bearing No.KA-51-HD- 5866 on Bannerughatta main road by following all the traffic rules and regulations. When he reached near Loyola Junction, the driver of the water tanker bearing No.HR-38-Y-5974 came in rash and negligent manner and dashed the vehicle of the deceased. Due to the accident, the deceased sustained grievous injuries. The deceased was shifted to Vijayashree Hospital, it was declared therein that he was brought dead. After conducting the postmortem in Victoria Hospital, the body was handed over to the petitioners. They have incurred an amount of Rs.2,00,000/- towards transportation and cremation. The petitioner No.1 and 2 are the mother and father of the deceased. Hence, they have undergone mental shock and agony. Before accident, the deceased was hale and healthy and working as Supplier/Delivery Boy of Zomato at Bengaluru. He was earning Rs.20,000/- per month. The petitioners are entirely dependent on the income of the 4 (SCCH-16) MVC 18/2021 deceased. The accident was due to the rash and negligent driving of the driver of the water tanker bearing No.HR-38-Y-5974. The Hulimavu Traffic Police have filed charge sheet against the driver of the offending vehicle for the offences punishable under Section 279 and 304(A) of IPC. The respondent No.1 is the owner and respondent No.2 is the insurer of the offending vehicle. Hence, the respondents are jointly and severally liable to pay the compensation. The petitioners have sought for compensation of Rs.50,00,000/- with interest at the rate of 12% per annum. They have prayed to allow the petition.
3. In response to the notice, the respondents No.1 and 3 appeared through their counsels. The respondent No.1 did not choose to file the written statement. The respondent No.2 is deleted from this case. The respondent No.3 has filed the written statement.
4. The facts in brief stated in the written statement of the respondent No.3 are as follows;
The respondent No.3 has denied the allegations in the petition. It has denied the accident and involvement 5 (SCCH-16) MVC 18/2021 of the water tanker lorry in the alleged accident. It has denied the relationship between the petitioners and deceased. It has stated that the claim amount is exorbitant and excessive. It has stated that the driver of the offending vehicle has no valid driving licence at the time of accident. The respondent No.1 has entrusted the offending vehicle to the said driver knowingly fully well that the driver of it had no valid driving licence. The police have filed the charge sheet against the driver and owner of the said vehicle for the offences punishable under Section 3(1), 181, 5, 180, 56, 192 of IMV Act. Hence, the owner of the lorry (water tanker) has violated the terms and conditions of the policy. It has further stated that the offending vehicle has no valid FC and police have alleged offences punishable under Section 5, 56, 192 of IMV act. It has stated that the rider of the two- wheeler vehicle bearing No.KA-51-HD-5866 was riding the vehicle without wearing helmet with ISI mark. It has stated that the deceased has not taken proper care and rode his vehicle in rash and negligent manner. It has further stated that the insurance policy of the said 6 (SCCH-16) MVC 18/2021 vehicle was in force. However, the petition is bad for non- joinder of the insurer and insured of the vehicle of the deceased in this case. It has further stated that the deceased had no valid driving licence at the time of accident. It has further stated that the owner of the offending vehicle has not furnished the vehicle documents and the information regarding the accident. Hence, he has not complied Section 134(c) of IMV Act. The police have not forwarded the documents. Hence, they have not complied Section 158(6) of IMV Act. It has further stated that granting the interest more than 6% per annum is not permissible under law. 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 deceased Ananda S., S/o Somanna, succumbed to the injuries sustained in vehicular accident alleged to have been occurred on 26-07-2020 at about 3.15 p.m., due to the rash and negligent driving of the driver of the Water Tanker bearing registration No.HR-38-Y-5974? 7 (SCCH-16) MVC 18/2021
2. Whether the petitioners are entitled to compensation? If so, what is the quantum and from whom?
3. What order or Award?
6. In order to prove their case, the petitioner No.1 got herself examined as PW1 and got marked documents as Ex.P1 to Ex.P19. The official of the respondent No.3 got examined as RW1 and got marked documents as Ex.R1 to Ex.R18. The respondent No.1 has neither adduced any evidence nor produced any documents.
7. Heard arguments of both the sides. The learned counsel for the petitioners has relied upon the ruling of the Hon'ble Supreme Court of India in the case of Pappu vs. Vinod Kumar Lamba in AIR 2018 SC 592, Rukmini vs. New India Assurance Co. Ltd., ruling reported in 1999 ACJ 171 and the ruling of Hon'ble High Court of Karnataka in New India Assurance Co. Vs. Yellavva, ruling reported in 2020 SCC Online Kar 1660 (FB). The learned counsel for the respondent No.3 has relied upon the judgment of the Hon'ble High Court of Karnataka in 8 (SCCH-16) MVC 18/2021 MFA No.6154/2019, in the case of Hemalatha and others vs. Bajaj Allianz General Insurance Co. and another.
8. Perused the pleadings and evidences, on the basis, 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:
9. The petitioners have stated that the driver of the water tanker bearing No.HR-38-Y-5974 drove it in rash and negligent manner and caused the accident. It is the further contention of the petitioners that the driver of the offending vehicle has dashed the two- wheeler vehicle bearing No.KA-51-HD-5866 of the deceased in which the deceased was proceeding. It is the further case of the petitioners that due to the accident, the deceased sustained grievous injuries and succumbed to the injuries in the hospital. It is the further case of the petitioners that the jurisdictional police have filed the charge sheet against the driver of 9 (SCCH-16) MVC 18/2021 the water tanker for the offences punishable under Section 279 and 304(A) of IPC.
10. 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 Accident Claims, the claimants are not required to prove the case as needs required to be done in a criminal trial.
11. 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.
12. 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.
10 (SCCH-16) MVC 18/2021
13. 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 Tribunal on the touchstone of preponderance of probabilities and certainly not on the basis of proof beyond reasonable doubt."
14. 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 11 (SCCH-16) MVC 18/2021 by the parties to ascertain whether the claimant's version is more likely than not true."
15. 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, 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.
16. 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.
17. In order to prove their case, the petitioners have produced as many as 19 documents and they are marked as Ex.P1 to Ex.P19. Out of the said documents, Ex.P1 is the FIR, Ex.P2 is the complaint, Ex.P3 is the spot 12 (SCCH-16) MVC 18/2021 mahazar, Ex.P4 is the sketch, Ex.P5 is the vehicle seizure mahazar, Ex.P6 is the inquest, Ex.P7 is the postmortem report, Ex.P8 is the 133 notice, Ex.P9 is the reply, Ex.P10 is the MVA report, Ex.P11 is the convession statement of accused, Ex.P12 is the charge sheet, Ex.P13 is the aadhar cards, Ex.P14 is the SSLC marks card, Ex.P15 is the driving licence, Ex.P16 is the PAN card, Ex.P17 is the account extract, Ex.P18 is the TDS copies and Ex.P19 is the rent agreement. In Ex.P1 and Ex.P2, it is stated that the accident was due to rash and negligent driving of the driver of the water tanker. It is further stated that the deceased was fell down on the road due to the accident. It is further stated that due to the accident, the deceased has sustained grievous injuries and he was succumbed to injuries in the hospital. In this case, the report regarding the accident was given by the police constable on duty near the accident spot. In Ex.P3, the accident spot is stated. In Ex.P4, the accident spot is shown. In Ex.P4, it is shown that when the rider of the motorcycle was moving towards the Meenakshi Mall, the water tanker came 13 (SCCH-16) MVC 18/2021 from the back side of the vehicle of the deceased and dashed it. As per Ex.P4, the water tanker changed its lane at the time of accident. In Ex.P5, it is stated that the vehicles are seized for inspection. In Ex.P6 and Ex.P7, the injuries to the deceased are stated. As per Ex.P7, the doctor who has conducted the postmortem has opined that the death is due to shock and haemorrhage as a result of blunt trauma sustained to abdomen. As per Ex.P8, the police have sent the notice to the owner of the offending vehicle. As per Ex.P9, the respondent No.1 has answered that one Lagbeer Singh was driving the tanker lorry at the time of accident. It is stated that at the time of accident, the driving licence of the driver of the said water tanker was not in force. In Ex.P10, the damages to both the vehicles are shown. As per Ex.P10, the rear left side wheel mud guard of the offending vehicle were scratched. The crash guard, both side fuel tank, handle bar, silencer, right side foot rest, both side rear view mirror, front right side indicator of the vehicle of the deceased were damaged. The damages shown in this document would tally with the 14 (SCCH-16) MVC 18/2021 manner of accident stated in the petition. As per Ex.P11, the driver of the offending vehicle has given voluntary statement before the police. In Ex.P11, the driver of the offending vehicle has admitted his rash and negligent driving at the time of accident. He has further admitted the grievous injuries and later, the death of the deceased due to the said accident. This statement is not denied by the owner of the offending vehicle. After conducting the investigation, the police have filed the charge sheet. This document is even marked on behalf of respondent No.3 also. In Ex.P12, it is stated that the accident is due to rash and negligent driving of the driver of the water tanker bearing No.HR-38-Y5974. It is stated therein that one Lagbeer Singh was driving the said vehicle at the time of accident. It is further stated that due to the accident, the deceased had sustained grievous injuries and succumbed to the injuries in the hospital. Hence, the police have alleged the offences punishable under Section 279 and 304(A) of IPC. The police have further alleged that the driver of the said vehicle had no valid driving licence to drove the water 15 (SCCH-16) MVC 18/2021 tanker. They have further alleged that the respondent No.1 has entrusted the driver to its vehicle knowingly fully well that the said driver had no valid driving licence. They have alleged the offences punishable under Section 3 r/w 181, 5 r/w 180 and 56 r/w 192 of IMV Act against the respondent No.1 and his driver. In all the documents produced by the petitioners, it is stated that the driver of the offending vehicle was driving his vehicle in rash and negligent manner. Even this document is relied upon by the respondent No.3.
18. 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- in-chief. In the cross-examination, she has denied the suggestion that the accident was not due to rash and negligent driving of the driver of the offending vehicle. The official of the respondent No.3 entered into the witness box and got examined as RW1. She has denied that the accident was due to rash and negligent driving of the driver of the offending vehicle. The respondents have not produced any reliable materials to show that 16 (SCCH-16) MVC 18/2021 the accident was not due to rash and negligent driving of the driver of the offending vehicle. From the documentary and oral evidence, the petitioners have proved that the accident was due to rash and negligent driving of the driver of the offending vehicle. They have further proved that the deceased was succumbed to the injuries in the said 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 has caused the accident and the accident is due to rash and negligent driving of the driver of the offending vehicle.
The respondent No.3 is the insurance company of the vehicle of the respondent No.1. The petitioners have produced their Aadhar cards and Aadhar card, SSLC Marks Card, driving licence and PAN card of the deceased to show their relationship with the deceased. From these documents, it is clear that the petitioner No.1 is the mother of the deceased and petitioner No.2 is the father of the deceased. Hence, the petitioners are legal representatives of the deceased. Since the 17 (SCCH-16) MVC 18/2021 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 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 18 (SCCH-16) MVC 18/2021
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 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 19 (SCCH-16) MVC 18/2021 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 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.
20 (SCCH-16) MVC 18/2021
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- 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 mother and petitioner No.2 is the father of the deceased Ananda S. 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 21 (SCCH-16) MVC 18/2021 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 28 years. To substantiate this point, the petitioners have produced the copy of the Aadhar Card and SSLC Marks Card of the deceased, wherein the date of birth of the deceased is mentioned as 19-04-1991. Admittedly, the accident took place on 26-07-2020. Therefore, as on the date of accident the age of the deceased was about 29 years.
The petitioners have stated that the deceased was working as supplier/delivery boy and he was having monthly income of Rs.20,000/-. 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 22 (SCCH-16) MVC 18/2021 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 2020. Therefore, the notional income is to be treated as Rs.14,500/- per month. Therefore, his annual income would be Rs.1,74,000/-.
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 29 years and not a permanent employee, the future prospects would be 40% of his income. Therefore, 40% of Rs.1,74,000/- comes to Rs.69,600/-. Therefore, the 23 (SCCH-16) MVC 18/2021 future prospects of the deceased comes about Rs.69,600/-. If this income is added to the notional income, then it comes about Rs.2,43,600/-. 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 2 persons i.e., petitioner No.1 and 2. The deceased was bachelor at the time of accident. Therefore, deduction towards the personal expenses comes about ½ of the total income i.e., Rs.1,21,800/-. Therefore, the multiplicand is as follows:
Rs.2,43,600/- - Rs.1,21,800/- = Rs.1,21,800/- 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 29 years. Therefore, the appropriate multiplier is 17.
24 (SCCH-16) MVC 18/2021 Therefore, the compensation under the head of loss of dependency is calculated as follows :
The age of the deceased is 29 years, number of dependents are 2, the notional income + future prospects is Rs.2,43,600/- per annum. Multiplicand is Rs.1,21,800/-, multiplier is 17. Therefore, the compensation to the petitioners under the head of loss of dependency is Rs.20,70,600/-. Hence, an amount of Rs.20,70,600/- is awarded to the petitioners towards loss of dependency.
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 25 (SCCH-16) MVC 18/2021 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 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 26 (SCCH-16) MVC 18/2021 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 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 and 2 are entitled to Rs.48,000/- each towards filial consortium.
20. The details of compensation proposed to be awarded are as under:
27 (SCCH-16) MVC 18/2021 Sl. Head of Amount/Rs No. Compensation
1. Loss of dependency Rs. 20,70,600-00
2. Loss of filial consortium Rs. 96,000-00
3. Loss of estate Rs. 18,000-00
4. Funeral expenses Rs. 18,000-00 Total Rs. 22,02,600-00
21. In all, petitioners are entitled for compensation of Rs.22,02,600/- with interest at the rate of 6% per annum from the date of petition till its realization. Liability:
22. The respondent No.1 is the owner and respondent No.3 is the insurer of the offending vehicle. The respondent No.3 has admitted the insurance policy to the offending vehicle as on the date of accident. The respondent No.3 has stated that the driver of the offending vehicle has no valid driving licence as on the date of accident. In the charge sheet, it is stated that the driver of the water tanker bearing No.HR-38-Y-5974 has no valid driving licence as on the date of the accident. A defence of the respondent No.3 is that since the driver of the offending vehicle has no valid driving 28 (SCCH-16) MVC 18/2021 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 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 29 (SCCH-16) MVC 18/2021 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".
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 30 (SCCH-16) MVC 18/2021 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 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 31 (SCCH-16) MVC 18/2021 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 '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 32 (SCCH-16) MVC 18/2021 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 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 33 (SCCH-16) MVC 18/2021 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 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 34 (SCCH-16) MVC 18/2021 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 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".
30. 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:
"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 35 (SCCH-16) MVC 18/2021 breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident".
31. 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.P12 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 has 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 admitted by the respondent No.3. Therefore, the respondent No.3 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.3 is entitled to recover the compensation amount from the respondent No.1 36 (SCCH-16) MVC 18/2021 after pay the amount to the petitioners. Hence, the respondent No.1 and 3 both are jointly and severally liable to pay the compensation amount to the petitioners. But, the respondent No.3 is entitled to recover the compensation amount to be paid to the petitioners after paying it to them from the respondent No.1 on pay and recovery basis.
Apportionment :
32. The petitioners No.1 and 2 are the legal representatives and they are entitled for the compensation. The petitioner No.2 is the father of the deceased and he has incurred the major expenses like funeral and transportation expenses. Therefore, he is entitled to 60% of the total compensation. The petitioner No.2 is the mother of the deceased, she is entitled to 40% of the total compensation.
33. As discussed above, the petitioners have shown that the water tanker bearing No.HR-38-Y-5974 has caused the accident to the son of the petitioners and the accident was due to rash and negligent driving of the offending vehicle by the driver of the said vehicle.
37 (SCCH-16) MVC 18/2021 They have further shown that they are entitled to total compensation of Rs.22,02,600/-. 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 3 are jointly and severally liable to pay the compensation and respondent No.3 is entitled to recover the compensation from the respondent No.1 after paying it to the petitioners. Hence, I answer issue No.2 partly in the affirmative.
ISSUE No.3:
34. 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.
The petitioners are entitled to compensation of Rs.22,02,600/- (Rupees twenty two lakhs, two thousand and six hundred only) with interest at the rate of 6% p.a., from the date of petition till realisation.
The respondent No.3 is directed to pay the compensation amount on pay and recovery basis to the petitioners
38 (SCCH-16) MVC 18/2021 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 - Mother 40%
Petitioner No.2 - Father 60%
Out of the compensation amount
awarded to petitioners No.1 and 2, 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 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 February 2024) (Ganapati Bhat) Member, MACT, Bengaluru.
39 (SCCH-16) MVC 18/2021 ANNEXURE Witnesses examined on behalf of petitioners:
PW1 Smt. Thayamma Documents marked on behalf of petitioners:
Ex.P1 True copy of FIR
Ex.P2 True copy of Complaint
Ex.P3 True copy of Spot Mahazar
Ex.P4 True copy of Sketch
Ex.P5 True copy of Vehicle Seizure Mahazar
Ex.P6 True copy of Inquest
Ex.P7 Postmortem Report
Ex.P8 True copy of 133 Notice
Ex.P9 True copy of Reply
Ex.P10 True copy of MVA Report
Ex.P11 Confession Statement of Accused
Ex.P12 True copy of Charge Sheet
Ex.P13 Notarized copy of Aadhar Card (3 in
nos.)
Ex.P14 True copy of SSLC Marks Card
Ex.P15 Notarized copy of Driving Licence
Ex.P16 Notarized copy of PAN Card
Ex.P17 True copy of Account Extract
Ex.P18 True copy of TDS Copies (4 in nos.)
Ex.P19 Copy of Rent Agreement
Witnesses examined on behalf of respondents:
RW1 Smt. Veera Gonsalves Documents marked on behalf of the respondents:
Ex.R1 Authorization Letter Ex.R2 True copy of Insurance Policy Ex.R3 True copy of Charge Sheet Ex.R4 True copy of FIR
Ex.R5 to Letters dated 18-10-2022, 22-02-2023 Ex.R7 and 22-02-2023 Ex.R8 to Postal Receipts and 3 ID Cards 40 (SCCH-16) MVC 18/2021 Ex.R13 Ex.R14 Driving Licence Extract Ex.R15 Endorsement given by Licensing Authority Jalandhar Ex.R16 Letter addressed to Divisional Manager Ex.R17 True copy of Section 133 Notice Ex.R18 True copy of Reply to Section 133 Notice (Ganapati Bhat) Member, MACT, Bengaluru.