Bangalore District Court
Ningamma vs Manoj.B.R on 7 November, 2024
SCCH-24 1 M.V.C.3172 of 2023
KABC020147832023
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES, AT BENGALURU.
(SCCH-24)
Presided Over by Smt. Roopashri, B.Com., LL.B.,
XXII ADDL., SCJ & ACJM,
MEMBER - MACT,
BENGALURU.
Dated:- This the 7th day of November 2024
M.V.C. NO. 3172 OF 2023
Petitioner/s:
1. Ningamma
W/o late Varadaraju
Aged about 58 years,
2. Niranjanamurthy B V
S/o late Varadaraju
Aged about 30 years,
3. Manjula B V
D/o late Varadaraju
Aged about 35 years,
All are R/at
Bettadahalli circle,
Sravanabelagola Hobli,
Channarayapattana Taluk,
Hassan District.
(By Sri.C.C Harish & Suma, Advocate)
SCCH-24 2 M.V.C.3172 of 2023
V/s
Respondents:
1. Manoj B R
S/o Ramegowda
Aged Major,
Bettadahalli village,
Dadighatta post,
Sravanabelagola Hobli,
Channarayapattna Taluk,
Hassan District.
(RC Owner of motorcycle
bearing Reg.No.KA-13-EQ-2271)
2. ICICI Lombard General Insurance Co.Ltd.,
The Estate building No121,
9th floor, Dickenson road,
M.G road, Bangalore -01.
(Policy bearing Reg.No.3005/43936738
/10117/000
valid from 01-03-19 to 29-02-2024)
3. Channakeshava
S/o Lakkegowda A Sannaiaha,
Aged Major,
Hubbanahalli village,
Santhebachahalli Hobli,
K.R Pet Taluk, Mandya District,
(RC owner of motorcycle
bearing Reg.No.KA-54-H-2552)
4. MAGMA HDI General Insurance
Company Limited
No.36, HM Astraid, JC road,
Minerva circle, Journalist colony,
Kalasipaly, Bangalore -02.
(Policy bearing Reg.No.P0020300022/
4102/105855
valid from 05-03-2020 to 04-03-2021)
SCCH-24 3 M.V.C.3172 of 2023
(R-1 by Sri Rajagopala Naidu
R-2 by Smt.R Sharadamba,
R-3 Exparte
R4 by Sri.Gururaj Salur, Advocate
JUDGMENT
This petition is filed by the petitioners U/s 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs.30,00,000/- with respect to the death of deceased Varadaraju who met with road traffic accident.
2. That on 09-06-2020 at about 4.30 p.m., Varadaraju (hereinafter called the deceased) was proceeding as a pillion rider in a motorcycle bearing Reg.No.KA-54-H-2552 which was ridden by its rider by name Channakeshava near Bettadahalli circle, Shravanabelagola Hobli, Channarayapattna Taluk, Hassan District in a rash and negligent manner and applied sudden break, at that time another motorcycle bearing Reg.No.KA-13-EQ-2271 came from back side in a rash and negligent manner endangering to human life without observing any of the traffic rules and regulations and dashed to the deceased's motorcycle, result of which the deceased sustained grievous injuries. Immediately the deceased was shifted to Sparsha Hospital at Channarayapattna wherein first SCCH-24 4 M.V.C.3172 of 2023 aid treatment was given and then he was shifted to Sparash Hospital at Hassan and thereafter he was referred to Kanva Hospital, Bangalore wherein he took treatment as inpatient. During the treatment the deceased succumbed to fatal injuries on 11-06-2020. So far the petitioners have spent more than Rs.3,00,000/- towards medical hospitalization and other incidental charges.
2(a). The deceased was hale and healthy prior to the accident. He was aged about 58 years. He was an Agriculturist and earning sum of Rs.30,000/- per month. The accident occurred solely on account of the rash and negligent riding of the motorcycle bearing Reg.No.KA-13-EQ-2271 and KA-54-H-2552. Due to the sudden death of deceased, petitioners have suffered pain and mental agony and other pecuniary and non- pecuniary damages.
3. The respondent no.1/the owner of motorcycle bearing Reg.No.KA-13-EQ-2271 has filed written statement and contended that the alleged accident is occurred due to the negligence on the part of the respondent no.3 i.e., the rider of motorbike bearing no.KA-54-H-2552. It is further contended that at the time of accident, 3rd respondent was riding his bike in SCCH-24 5 M.V.C.3172 of 2023 a rash and negligent manner with the pillion rider (i.e the husband of 1st petitioner ). At that time the deceased was on the bike by grossly violating traffic norms. By suppressing the actual cause of accident in collusion with the police they have managed to file charge sheet against him along with 3rd respondent. The said accident has occurred solely due to the rash and negligent riding of the motorcycle of the 3 rd respondent.
4. The respondent no.2/the insurer of the motorcycle bearing Reg.No.KA-13-EQ-2271 has filed written statement and contended that there is delay of one year and 59 days in preferring the claim petition i.e., after commencement of amended Act from 01-04- 2022 the claim petition is filed, hence the said claim petition is not maintainable and same is deserves to be dismissed. It is further contended that there is no involvement of the insured motorcycle, that there is no negligence on the part of the insured vehicle. The entire negligence is on the part of the rider of motorcycle in which deceased was proceedings.
5. In spite of service of notice, the respondent No.3 the R.C. owner of motorcycle bearing Reg.No.KA-
SCCH-24 6 M.V.C.3172 of 202354-H-2552 has remained absent. Hence he was placed ex-parte.
6. The respondent no.4/the insurer of motorcycle bearing Reg.No.KA-54-H-2552 has filed written statement and admitted the coverage of insurance policy and the liability if any subject to the terms and conditions mentioned in the policy. It is contended that on the date of accident, the rider of insured vehicle was not holding valid and effective driving licence. It is further contended that the alleged accident has occurred due to the negligence on the part of the rider of motorcycle bearing No.KA-13-EQ-2271. It is further contended that at the time of alleged accident the deceased was not wearing helmet, that there is 36 months delay in lodging the complaint. It is further contended that the rider of insured vehicle was proceeding in slow manner in correct side of the road by following traffic rules and regulation, at that time the rider of motorbike bearing No.KA-13-EQ-2271 drove the same in a rash and negligent manner and dashed against their insured vehicle, in that regard the rider of insured vehicle has filed complaint against the rider of vehicle bearing No.KA-13-EQ-2271, but the police have falsely filed charge sheet even against the rider of their vehicle.
SCCH-24 7 M.V.C.3172 of 20237. On the basis of the above pleadings the following issues are framed:
ISSUES
1. Whether the petitioners prove that, they are legal heirs of the deceased Varadaraju S/o late Varadaiah?
2. Whether the petitioners prove that, Varadaiah, was died on account of road traffic accident on 09-06-2020 at about 4-30 p.m., near Bettadahalli circle, Sravanabelagola Hobli, Channarayapattna Taluk, Hassan District, due to rash and negligent riding of the rider of motorcycle bearing reg.no.KA-13-EQ-2271 ?
3. Whether the petitioners are entitled for the compensation? If so, what is the quantum? From whom?
4. What Order or Award?
Recasted issue No.2 Whether the petitioners prove that, Varadaiah, was died on account of road traffic accident on 09-06-2020 at about 4-30 p.m., near Bettadahalli circle, Sravanabelagola Hobli, Channarayapattna Taluk, Hassan District, due to rash and negligent riding of the rider of motorcycle bearing reg.no.KA-13-EQ-2271 and motorcycle bearing No.KA-54-H-
2552 ?
SCCH-24 8 M.V.C.3172 of 20238. The petitioner No.1 got examined herself as Pw1 and Ex.P1 to Ex.P.15 is tendered during the evidence on petitioners' side. The respondent No.1 has examined himself as RW.1 and got marked documents as Ex.R1 to R3. The respondent no.4 has examined its Assistant Manager as RW.2 and got marked documents as Ex.R4 and R5. The respondent no.2 examined its Legal Manager as RW.3.
9. Heard the arguments of learned counsel for petitioners and learned counsel for respondents.
10. My findings on the above issues are as follows:-
Issue No. 1 - In the Affirmative Re-casted Issue No.2 : In the Affirmative Issue No.3 - Partly in the Affirmative Issue No. 4 - As per final Order, for the following:-
REASONS
11. Issue no 1: The petitioners have contended that they are the wife, son and daughter of the deceased, hence entitled for compensation. The respondent no.4 who is the contesting respondent at para no. 7(c) of the written statement has disputed the SCCH-24 9 M.V.C.3172 of 2023 relationship of petitioners with the deceased and submitted that petitioner no.2 and 3 being the major son and daughter of the deceased are not the dependent of the deceased.
12. In order to prove the relationship of deceased with the petitioners, they have produced Aadhar card of the petitioners and deceased which discloses that petitioner no.1 is the wife and petitioner no.2 and 3 are the son and daughter of the deceased. Further all the police records disclose the relationship of petitioners with the deceased. So far as the dispute raised by the respondents regarding the dependency of the petitioners is concerned, the petitioner no.1 being the wife of the deceased is the dependent of the deceased. So far as the petitioner no.2 and 3 are concerned, though they being the children of the deceased are the legal representative of the deceased as per Sec. 8 of Hindu Succession Act but they cannot be termed as the dependent of the deceased, for the reason that if the evidence of PW.1 is perused, she herself has deposed that petitioner no.2 is married and doing collie work and earning daily wages of Rs.300/- to Rs.400/- and that now she is residing with the petitioner no.2 and that the petitioner no.3 is also married. Though the PW.1 has deposed that the SCCH-24 10 M.V.C.3172 of 2023 husband of the petitioner no.3 has deserted the petitioner no.3 and that petitioner no.3 is residing with them but no materials to that effect has been produced. If the Adhaar card of the petitioner no.3 is perused, her address is shown as the resident of Bangalore, whereas the petitioner no.1 and 2 are residing at Channarayapatna Taluk, Hassan District. Further if the statement given by the petitioner no.3 and her husband Ashok S/o Krishnegowda dated 12- 06-2020 before the investigating officer is perused, wherein they have stated that they are residing together at Bangalore and they came to know about the accident of the deceased when they were in Bangalore through petitioner no.2 . From the aforesaid statement of the petitioner no.3 and her husband it can be said that after the married petitioner no.3 is residing separately with her husband at Bangalore. Hence, it can be said that petitioner no.2 and 3 are not the dependents of the deceased even though they are the legal heirs of the deceased. Hence issue no 1 is answered in the partly affirmative.
13. Re-casted Issue No.2: Petitioners have categorically contended that on the date of accident, the deceased was proceeding as a pillion rider in a motorcycle bearing Reg.No.KA-54-H-2552 (hereinafter SCCH-24 11 M.V.C.3172 of 2023 referred to as the offending no.2) which was ridden by its rider by name Channakeshava near Bettadahalli circle, Shravanabelagola Hobli, Channarayapattna Taluk, Hassan District in a rash and negligent manner and when they reached the spot of accident , the rider of their motor cycle applied sudden break, at that time another motorcycle bearing Reg.No.KA-13-EQ-2271 (hereinafter referred to as the offending no.1) came from back side in a rash and negligent manner endangering to human life without observing any of the traffic rules and regulations and dashed to the deceased's motorcycle, result of which the deceased sustained grievous injuries. Immediately the deceased was shifted to nearby Sparsha Hospital at Channarayapattna wherein first aid treatment was given and then he was shifted to Sparash Hospital at Hassan wherein treatment was given and thereafter injured was referred to Kanva Hospital, Bangalore wherein he took treatment as inpatient. During the treatment the deceased succumbed to the fatal injuries on 11-06-2020.
14. In order to prove the petition averments, petitioner no.1 who is the wife of deceased got examined herself as Pw1 and produced in all 15 documents, among them Ex.P1 to Ex.9 i.e., complaint, SCCH-24 12 M.V.C.3172 of 2023 FIR, sketch, Crime details 2 in numbers , IMV report, Inquest report, PM report, charge sheet, witness statement are the material documents to prove the present issue.
15. On the basis of the complaint lodged by Channakeshava, case has been registered against the rider of offending vehicle in Crime No 0075/2020 of Shravanabelagola Police Station for the offence punishable under section 279, 307 IPC. The Investigation officer after investigation filed charge sheet against the rider of offending vehicle for the offences punishable under Section 279, 304(a) of IPC and u/Sec.181of MV Act.
16. The learned counsel for respondent no.4 has vehemently submitted that the petitioners in collusion with the police have made to see that charge sheet is filed even against the respondent no.3 and that all the police documents except the charge sheet says that entire negligence is on the part of the offending vehicle No.2 and it is only in the charge sheet the allegation is made against the offending vehicle no. 2. The learned counsel further submitted that though charge sheet is against both the vehicles but primary document is to be looked into and charge sheet is not a conclusive SCCH-24 13 M.V.C.3172 of 2023 proof to determine the negligence. The learned counsel for respondent no.4 at this juncture has referred un reported judgment in MFA No.201689/2016 (MV) Mahadevi & Ors., Vs. Shivaputra & Anr. Wherein it was observed that "there is no law laid down in the said judgment of universal application that in all cases where charge sheets were filed, unless Insurance Company challenges the same and obtains writ of mandamus, MACTs are required to act upon the same and proceed to come to a conclusion that the vehicles named as offending vehicles in the charge sheet, without any further proof, are to be taken as the motor vehicles involved in causing the accident, even in cases where evidence produced points to the contrary".
17. In the light of the contention taken by the respondent no.4 to the aforesaid effect, if the materials placed on record is perused, it is true that the rider of offending vehicle no.2 by name Channakeshav has lodged complaint against the rider of offending vehicle no.1 i.e., against the respondent no.1 alleging that the respondent no.1 by riding his vehicle in rash and negligent manner from behind the offending vehicle no.2 hit to the offending vehicle no.2 on its rear side. Based on the complaint lodged by the complainant, SCCH-24 14 M.V.C.3172 of 2023 FIR as per Ex.P2 was lodged against the respondent no.1. After the death of injured Varadaraju, his son has filed further complaint reporting the death of his father. If the statement of eye witnesses recorded by the investigating officer during the course of investigation u/Sec. 162 of Cr.PC is perused, they have stated about the rash and negligent driving of both the vehicles by its rider. Further during the course of investigation the rider of offending vehicle no.2 has given confessional statement wherein he has stated about the rash and negligent act contributed by him along with respondent no.1 so as to cause the accident. It is after the investigation, the investigation officer has filed charge sheet against the rider of both the vehicles. It is true that one cannot expect the respondent no.4 being the insurer of the offending vehicle no.2 to challenge the charge sheet filed against the rider of their insured vehicle. But if really the rider of the offending vehicle no.2 has not contributed any amount of negligence then the rider/owner of the offending vehicle no.2 could have challenged the charge sheet filed against the rider of vehicle no.2. Admittedly, respondent no.3 who is the owner of the offending vehicle no.2 is not an eye witness to the accident. If really the rider of offending vehicle no.2 has not contributed any negligence, nothing prevented SCCH-24 15 M.V.C.3172 of 2023 the respondent no.3 from examining the rider of his vehicle. If the evidence of PW.1 who is the wife of deceased is perused, she has admitted that there is curve near Bettadhahalli and the rider of offending vehicle no.2 suddenly applied break without any signal result of which the offending vehicle no.1 which was coming in rash and negligent manner from behind the offending vehicle no.2 hit to the offending vehicle no.2. Though the learned counsel for respondent no.3 and 4 have contended that the rider of offending vehicle no.1 could have ride his vehicle to the right side of the offending vehicle no.2 and that in such an event accident could have been avoided but if the spot mahazar and sketch is perused, the width of the road at the spot of accident is nearly 15 feet and the accident in question has occurred at a distance of 4 feet from the left edge of tar road leads from Bettadhahalli circle towards Santhebachahalli. It is two way road . Hence, vehicles from both directions ply in the said road. Hence, when offending vehicle no.1 is also a two wheeler which is coming from same direction from behind the offending vehicle no.2 under such circumstances one cannot expect the rider of the offending vehicle no.1 to ride the motorcycle in the middle of the road. But when the rider of offending vehicle no.2 had suddenly applied break, had the rider SCCH-24 16 M.V.C.3172 of 2023 of offending vehicle no.1 driven his vehicle in slow and steady manner by maintaining minimum distance this accident could have been avoided. At the same time had the rider of offending vehicle with all care and caution had driven the motorcycle without applying sudden break then also this accident could have been avoided. Hence, considering the materials placed on record, it can be said that since the rider of offending vehicle no.2 without giving any signal suddenly applied the break and stopped the vehicle it can be said that he has contributed more negligence than the rider of the offending vehicle no.1. Hence, the negligence contributed by the rider of the offending vehicle no.2 is assessed at the ratio of 60% and the rider of offending vehicle no.1 at the ratio of 40%. Hence, re-casted issue no 2 is answered in the Affirmative.
18. It is relevant to state here that the respondents have taken the contention that the claim of the petitioners is barred by limitation as they have filed the petition after lapse of more than one year from the date of accident. If the order sheet is perused, the respondent no.4 during the course of proceedings had filed IA No.4 u/order VIII rule 11 (d) CPC to reject the petition on the ground of limitation.
SCCH-24 17 M.V.C.3172 of 2023The said application was decided on merit vide order dated 07-03-2024 and rejected the said application holding that claim petition is not barred by limitation. When this court has already given findings on the point of limitation the question of discussing the said point once again does not arise.
19 . Issue no 3 : After considering the materials placed on record and the submission made by the learned respective counsels, it is not in serious dispute that deceased was died in the road traffic accident. Further from the Ex.P11/Voter ID the age of the deceased shown as 31 years as on 01-01-1994 and in the inquest mahazar and PM report at Ex.P6 and 7, the age of the deceased is mentioned as 60 years. Hence considering the Inquest mahazar and PM report this court has taken the age of the petitioner as 60 years.
20. As per the case of petitioners, the deceased was an agriculturist and he was earning Rs.30,000/- per month. The petitioners have not produced any documents to prove the income of the deceased. As no proof is placed on record by the petitioners to prove the income of the deceased, it is appropriate to assess the notional income of the deceased. Since accident has SCCH-24 18 M.V.C.3172 of 2023 occurred in the year 2020, this court considers the notional income of the deceased as Rs.14,500/- per month.
21. Keeping in mind the observation made in Sarala Verma's case reported in 2009 ACJ 1298, considering the family status of the deceased as deceased had wife, 50% of the annual income is to be deducted towards personal expenses and remaining 50% is to be considered for assessing the compensation under the head loss of dependency.
22. Regarding loss of future prospects, in a ruling reported in 2018 (2) CCC 233 (SC) Munuswamy and Ors / Managing Director Tamil Nadu State Transport Corporation (Villupuram Ltd) where in it was held that while computation of compensation, future prospect of deceased is to be considered by addition to be made to actual income of the deceased which existed at the time of his death. It is further observed that in case the deceased was self employed or on a fixed salary an addition of 40% of the established income should be warrant where the deceased was below the age of 40 years, an addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between SCCH-24 19 M.V.C.3172 of 2023 the age of 50 to 60 years should be regarded as the necessary method of computation. Hence in the instant case as the deceased was 60 years, 10% should be added towards future prospects.
23. Now by assessing the income of the deceased as Rs.14,500/-, if 10% is added towards the future prospect it comes around Rs.15,950/-, out of it if 50% is deducted towards the personal expenses of the deceased it comes around Rs.7,975/-. The appropriate multiplier applicable for the age group of 56 to 60 years is '9'. Accordingly the petitioners are entitled towards loss of dependency at Rs.8,61,300/- (Rs.7,975/- x 9 x 12 = 8,61,300/-).
24. Because of the untimely death of deceased, petitioner no.1 lost her husband and petitioner No.2 and 3 have lost their father. So far as quantum of compensation awarded under the head loss of consortium, towards transportation of dead body and funeral expenses is concerned slab has been fixed in Pranay Sethi's case reported in AIR 2017 SC 5157. In para 61 of the said judgment the reasonable figures on conventional heads namely loss of estate, loss of consortium, and funeral expenses should be Rs.15,000/, Rs.40,000/- and Rs.15,000/-
SCCH-24 20 M.V.C.3172 of 2023respectively. It is further observed that the aforesaid amounts should be enhanced at the rate of 10% in every three years. The judgment in Pranay Sethi's case was rendered on 30th October 2017.
25. As per the observation made in Janabai W D/o Dinkarrao Ghorpade & Ors., Vs. M/s I.C.I.C.I Lambord Insurance Co.Ltd., The Hon'ble Supreme court awarded spousal consortium for wife, parental consortium and filial consortium. This was the terms of the judgment in National Insurance Company Ltd / Pranay Sethi and Ors. By applying the observation made in the aforesaid case, as more than 6 years has lapsed from the date of order amount of consortium fixed in Pranay Sethi's Case should be enhanced from Rs.40,000/- to Rs.48,400/-. Hence, this court deems it appropriate to award compensation of Rs.48,400/- each to the petitioners under the head loss of consortium. Petitioners are further entitled for funeral expenses to the tune of Rs.18,150/- and loss of estate to the tune of Rs.18,150/-.
26. In the circumstances, the loss assessed by the petitioners due to the death of deceased is calculated as follows:
SCCH-24 21 M.V.C.3172 of 20231 Loss of Estate Rs. 18,150/- 2 Transportation and Rs. 18,150/- funeral expenses 3 Loss of spousal Rs. 1,45,200/-
consortium and parental consortium (Rs.48,400x3) 4 Loss of dependency Rs.8,61,300/-
Total Rs.10,42,800/-
Thus, in all petitioners are entitled to Rs.10,42,800/- (Rupees Ten Lakh Forty Two Thousand Eight Hundred Only) and it is just and adequate compensation under the facts and circumstances of the case.
27. As regarding liability is concerned, there is no dispute that offending vehicle no.1 was insured with 2nd respondent and policy was in force as on the date of accident. The offending vehicle no.2 was insured with respondent no.4 and policy was in force. So far as the offending vehicle no.2 is concerned, there is no dispute that all the documents pertaining to the said vehicle was in force as on the date of accident. Hence, so far as 60% of the negligence contributed by the rider of the offending vehicle no.2 is concerned, the respondent no.4 being the insurer of the said vehicle is liable to pay the compensation to the petitioners.
SCCH-24 22 M.V.C.3172 of 202328. So far as the offending vehicle no.1 is concerned, as observed supra the policy pertaining to the said vehicle was in force as on the date of accident. But as admitted by respondent no.1 who is the owner/rider of the offending vehicle no.1, as on the date of accident he was not having driving license. It is not the case of the respondent no.1 that the driving license was not in force as on the date of accident but according to him he had not possessed driving license at all. It is admitted by respondent no.1 in his cross examination that he is aware of the fact that the person not having driving licence is not supposed to drive the vehicle. It means, the respondent no.1 being the owner of the offending vehicle no.1 having knowledge that he had no driving license and having knowledge that he is not supposed to ride the offending vehicle no.1 without having driving license rode the vehicle in a public place. Since the respondent no.1 without having driving licence rode the offending vehicle no.1 and caused for the accident, he was charge sheeted even for the offense u/Sec. 181 IMV Act along with offence u/Sec. 279 and 304-A IPC.
29. It is vehemently submitted by the learned counsel for petitioners that even though the respondent no.1 had no driving license, since the SCCH-24 23 M.V.C.3172 of 2023 policy was in force, the respondent no.2 being the insurer is liable to pay compensation at the first instance and then to recover the said amount from the respondent no.1 under pay and recovery.
30. In order to substantiate the said contention, the learned counsel for the petitioners has relied upon the judgment rendered in MFA No.4952/2019 between Smt. Sagayamary M & ors. Vs. Sri L Ravi & Anr., decided on 26-07-2024 and MFA No.2374/2021 (MV-
1) between Prabu H C Vs. Ratnakara M V & Anr., decided on 28-06-2024. In the said cases the rider of the motorcycle involved in the accident did not possess a valid driving license. The Hon'ble High Court by referring the full bench decision rendered in New India Assurance Co.Ltd., Yallava has observed that" even though the rider of the motorcycle did not possess valid driving license but Insurance Company cannot be absolved of its liability to pay compensation at the first instance and to recover the same from the owner cum rider of the offending vehicle in the same proceedings in accordance with law.
31. In (2018) 9 SCC 650 between Shamanna & Anr., Vs. Divisional Manager, Oriental Insurance Co.Ltd., wherein it was observed that "when the driver did not possess the valid driving license and there are SCCH-24 24 M.V.C.3172 of 2023 breach of policy conditions, pay and recover can be ordered in case of third party risks".
32. In 2020 ACJ 2560 between New India Insurance Co.Ltd., Vs. Yellava & Anr., it was observed that "In cases of breach of policy conditions, the principle of 'pay and recovery' must be applied by directing the insurer to satisfy the claim amount in the first instance and then to recover the amount from the owner of the vehicle in the same proceedings. When a policy condition is violated, the insurance company cannot absolve itself of the liability to pay the compensation awarded to the claimant initially but may recover the same from the owner of the vehicle in question in the very same proceedings.
33. So for as the liability of insurance company to pay the compensation is concerned the learned counsel for respondent No.2 has vehemently submitted that after amendment to MV Act dated 01.04.2022 no liability can be fixed on insurance company to pay compensation for violation of policy condition including not holding valid driving license and no order for pay and recovery can be passed It is further submitted by the learned counsel for respondent no.2 that even though amendment has come in to affect from 01-04-2022 and accident in question has SCCH-24 25 M.V.C.3172 of 2023 occurred on 09-06-2020 I.e., prior to the amendment but the amendment brought in to effect has retrospective effect. Hence, no order can be passed against the respondent no.2 to pay the compensation amount and to recover the said amount from the respondent no.1 and respondent no.1 having breached the policy condition alone is liable to pay the compensation.
34. The learned counsel at this juncture has referred the judgment reported in 1999 (8) SCC 254 between Kerala State Electricity Board & Anr., Vs. Valsala K & Anr., In the said case, the accident in question has taken place prior to 15-09-1995 but the petition under Workmen's Compensation Act was decided subsequent to 15-09-1995. As per Sec.4 and 4-A (3) as amendment by Act 30 of 1995 w.e.f 15-09- 1995 the amount of compensation and the rate of interest was enhanced. It was observed that Workmen's Compensation Act being a special legislation for the benefit of the workmen, the benefit as available on the date of adjudication should be extended to the workmen and not the compensation which was payable on the date of the accident. The Hon'ble Apex Court by exercising constitutional power has applied the enhanced rate of interest and SCCH-24 26 M.V.C.3172 of 2023 compensation fixed in the amended Act has awarded compensation. In the said case in view of the pettiness of amounts involved and the long lapse of time, the higher rate of interest was awarded which was not applicable on the relevant date.
35. Coming to the case in hand the amendment to MV Act came in to effect from 01.04.2022. The accident in question has occurred during the year 2020 i.e., much prior to the amendment. The Motor Vehicles Act is enacted for the benefit of the victims of road accident and it is a social legislation Act Hence whatever the benefit available to the victim under the Act has to be provided. Hence, the amended Act 2022 has no application to the case in hand in view of the fact that the accident in question has occurred during the year 2020 i.e much prior to the amendment to MV Act dated 1.4.2022 . As observed supra in the case cited by the respondent no 2 referred above, even though the amendment to work mans compensation has no retrospective effect but the hon'ble supreme court by exercising its jurisdiction , has considered the amended act for the reason that it is beneficial to the victim.
36. It is settled law that provisions of new act can not infringe or re- litigate the rights granted under the old SCCH-24 27 M.V.C.3172 of 2023 Act. Hence it can be said that amendment to MV act would have prospective effect. Hence amendment to MV Act dated 1-4-2022 has no binding effect to the case in hand.
37. So far as the contention taken by the learned counsel for respondent no.2 to the effect that since there is fundamental breach of policy condition the respondent no.2 is not liable to pay compensation is concerned, the learned counsel has referred the judgment rendered in MFA No.3288/2013 (MV-I) c/w MFA No.3287/2013 (MV-D_ between M/s Sriram General Insurance Co.Ltd., Vs. Mrs. Sunitha @ Nagaveni & Anr., decided on 29-01-2024, in Mfa No. 2014/2014 (MV-I) between Divisional Manager, United India Insurance Co.Ltd., Vs. Sundara Devadiga & Anr., decided on 15-04-2024, the Hon'ble High Court by referring the judgment rendered by Hon'ble Division Bench, in Hemalath @ Hema & Ors., Vs. Bajaj Allianz General Insurance Co.Ltd., & Anr., has observed that "since the driver did not have a valid and effective driving licence at the time of accident the owner is liable to pay the compensation but not the insurer and no pay and recovery is ordered in the said cases.
38. In MFA No. 3297/2019 (MV - D) between Smt. Adilakshmammama & Ors., Vs. Sri Raju B & Anr., SCCH-24 28 M.V.C.3172 of 2023 decided on 13-04-2023 and in MFA No.6154/2019 (MV-D ) between Hemalath @ Hema @ Hemavathi & Ors., Vs. Bajaj Allianz General Insurance Co.Ltd., & Anr., decided on 14-12-2023, the Hon'ble Division Bench in the case where the driver of the offending vehicle did not possess valid driving license has ordered the owner to pay the compensation instead of Insurance Company and without ordering for pay and recovery . But the said judgment was rendered by Division Bench whereas the learned counsel for petitioners has referred the judgment rendered by Full Bench in New India Assurance Co.Ltd. Vs. Yellava & Ors., and this court has to refer the observation made in the Full Bench decision rendered by Hon'ble High Court in New India Assurance Co.Ltd., Vs. Yellava & Ors., wherein, in a case where the driver did not possess valid driving license the court had ordered the Insurance Company to pay the compensation and then recover from the owner of the offending vehicle.
39. In all the cases cited by the petitioners and respondent no.2 referred above the owner and driver of the offending vehicle was different person and the driver of the offending vehicle having driving license had no valid and effective driving license. Under such circumstances, the Hon'ble High Court and Supreme SCCH-24 29 M.V.C.3172 of 2023 Court in the judgment relied by the petitioners ordered for pay and recovery. But in the present case, the owner and rider of the offending vehicle no.1 was respondent no.1 and he was not having driving license at all. Having aware that he was not having driving license and having aware that without driving license he is not supposed to drive the vehicle, in total violation has ridden the vehicle. It is clearly a case of lack of reasonable care on the part of the respondent no.1. Under such circumstances, for the reckless act of the respondent no.1, insurer cannot be held liable to pay the compensation. Under the given set of facts, this court by exonerating the respondent no.2 from the liability of paying compensation even under pay and recovery directs the respondent no.1 being the owner/rider of the offending vehicle no.1 to pay the compensation to the petitioners to the extent of 40%. Accordingly the awarded amount carries interest at the rate of 6 % p.a. Accordingly, Issue No.3 is answered.
40. Issue No.4:- In the light of findings given on Issue No.1 and 2, my finding on this issue is as per the following final order.
ORDER
The claim petition filed by the
petitioners is hereby allowed in part with costs.
SCCH-24 30 M.V.C.3172 of 2023The petitioners are entitled for total compensation of Rs.10,42,800/- + cost of Rs.500/- imposed vide order on IA No.II and Rs.1000/- imposed vide order on IA No.6. The petitioners are entitled for sum of Rs.10,44,300/- (Rupees Ten Lakh Forty Four Thousand Three Hundred only).
A Sum of Rs.10,42,800/- shall also carry interest at 6% per annum from the date of petition till the date of deposit.
The Respondent No 2 is liable to pay 40% of the compensation amount i.e., sum of Rs.4,17,120/- + cost of Rs.500/-
imposed vide order on IA No.II. The respondent no.2 directed to deposit the compensation of Rs.4,17,620/- (Rupees Four Lakh Seventeen Thousand Six Hundred Twenty only) along with interest within two months from the date of award and to recover the said amount from the respondent no.1/ owner of the offending vehicle.
SCCH-24 31 M.V.C.3172 of 2023The Respondent No 4 is liable to pay 60% of the compensation amount i.e., sum of Rs.6,25,680/- + cost of Rs.1000/-
imposed vide order on IA No.6. The respondent no.4 directed to deposit the compensation of Rs.6,26,680/-(Rupees Six Lakh Twenty Six Thousand Six Hundred Eighty only) with interest at 6% within 2 months from the date of this award.
Out of the compensation amount, Petitioner No.1 is entitled for Rs.9,47,500/-, Petitioner No.2 and 3 are entitled for Rs.48,400/each.
Out of the amount and interest, 50% of compensation payable to the petitioner No.1 shall be deposited in her name in any nationalized bank of her choice for a period of 3 years and the remaining 50% shall be released to the petitioners No.1 on proper identification.
So far as the amount apportioned to the petitioners no 2 and 3 are concerned same is ordered to be released in their favour after due identification through E -payment.
SCCH-24 32 M.V.C.3172 of 2023Advocate's fee is fixed at Rs.1,000/-. Draw award accordingly.
(Dictated to the stenographer directly on computer, corrected and then pronounced by me in open court, on this the 7 th day of November 2024.) (ROOPASHRI) XXII Addl. SCJ & ACJM Bengaluru.
ANNEXURE WITNESS EXAMINED FOR THE PETITIONER:
PW.1 Smt.Ningamma WITNESS EXAMINED FOR THE RESPONDENTS: -
RW.1 : Monaj B R RW.2 : Pradeep K RW.3 : SRI VINAY PRASAD
DOCUMENTS EXHIBITED FOR THE PETITIONER:
Ex.P-1 : Certified copy of complaint Ex.P-2 : Certified copy of FIR Ex.P-3 : Certified copy of Sketch Ex.P-4 : Certified copy of Crime details 2 in nos Ex.P-5 : Certified copy of IMV report Ex.P-6 : Certified copy of Inquest report Ex.P-7 : Certified copy of PM report Ex.P-8 : Certified copy of Charge sheet Ex.P-9 : Certified copy of Witness statement SCCH-24 33 M.V.C.3172 of 2023 Ex.P-10 : Notarized copy of Aadhar card of petitioner no.1 to 3 (compared with original and original is returned to the party) Ex.P-11 : Notarized copy of Voter ID of the deceased (compared with original and original is returned to the party) Ex.P-12 : Medical bills 7 in nos Ex.P-13 : Medical prescriptions 3 in nos Ex.P-14 : Advance receipt 1 in no Ex.P-15 : Medical Lab reports DOCUMENTS EXHIBITED FOR THE RESPONDENTS:
Ex.R1 : Notarized copy of RC (compared with original and original is returned to the party) Ex.R2 : Notarized copy of DL (compared with original and original is returned to the party) Ex.R3 : Original Insurance policy Ex.R4 : Authorization letter Ex.R5 : True copy of policy XXII Addl. SCJ & ACJM Bengaluru.SCCH-24 34 M.V.C.3172 of 2023
Pronounced vide separate judgment with following operative portion:
ORDER The petitioners are entitled for total compensation of Rs.10,42,800/- + cost of Rs.500/- imposed vide order on IA No.II and Rs.1000/- imposed vide order on IA No.6. The petitioners are entitled for sum of Rs.10,44,300/- (Rupees Ten Lakh Forty Four Thousand Three Hundred only).