Bangalore District Court
Shivanna .S.K vs Nayeem Khan on 4 July, 2024
KABC020168412022
IN THE COURT OF XXI ADDL.SMALL CAUSE JUDGE AND
MOTOR ACCIDENT CLAIMS TRIBUNAL, BANGALORE.
(SCCH-23)
DATED THIS THE 4th DAY OF JULY - 2024
PRESENT: Sri. Aalok. A.N
B.B.A. LL.B,
XXI ADDL. SCJ & ACJM
MEMBER - MACT, BENGALURU.
MVC. No.3007/2022
Petitioners : 1. Sri. Shivanna. S.K,
S/o Late Kempaiah,
Aged about 54 years.
2. Smt. Yashodhamma,
W/o Shivanna S.K.,
Aged about 47 years,
Both are R/at : Sagasandra Village,
Alalaghatta Post, Nittur Hobli,
Gubbi Taluk, Tumkur District-572222.
(By Advocate: Sri. K.H. Manjegowda )
v/s
Respondents : 1. Sri. Nayeem Khan,
S/o Wazeer Khan,
Residing at No.1004, Ward 11,
2nd cross, Behind Ghousia Masjid,
Ghousia Nagara, Mohalla,
Ramanagara - 562159.
2
SCCH-23
MVC-3007/2022
(RC owner of the Motor Cycle bearing
No.KA-42-EC-4014)
(Exparte )
2. The Manager,
The New India Assurance Co. Ltd.,
Regional Office at No.301,
Unity Building, 11th A cross,
P. Kalinga Rao Road, New Mission
Road, Bengaluru - 560027.
(Insurer of Motor Cycle bearing No.KA-
42-EC-4014)
Vide Policy No.6700431200090008230
Policy period from 28.08.2020 to
27.08.2025.
(By Advocate: Sri. B. Anjaneyalu)
JUDGMENT
This claim petition is filed under Sec.166 of M.V Act, 1988 seeking compensation for the death caused in a Road Traffic accident.
2. Brief case of the petitioner in the nutshell:
It is the case of the petitioners that, on 18.5.2022 at about 11.20 p.m, when the Pradeep S. (who herein after will be referred as deceased) proceeding as a pedestrian was crossing the road from Mysore road KSRTC Depo No.5, opposite to SBI ATM, near Nayandalli junction to Kimko junction, at that time the rider of Motorcycle bearing Reg.No.KA-42-EC-4014 came with high speed in a rash and negligent manner so as to endanger human life and dashed to the deceased. Due to the 3 SCCH-23 MVC-3007/2022 impact the deceased fell down and sustained grievous injuries all over his body. Though he was shifted and treated in Pinnacle Hospital, Bengaluru but the same went in vain and he breathed his last to the accidental injuries in the hospital at 11.35 p.m. on same day. Postmortem was conducted and the corpse was handed over to the family members. It is specifically contended that, deceased was unmarried and he is the main pillar of the entire family. The deceased was working as Driver at KSRTC Corporation and was earning a sum of Rs.31,000/- p.m. and because of untimely death of deceased, the petitioners have suffered economically as well as emotionally. It is specifically urged that the accident happened because of rash and negligent act of the rider of Motorcycle and as such the respondent No.1 being the owner and respondent No.2 being the insurer of the offending vehicle are jointly and severally liable to pay the compensation. Hence prayed to allow the petition.
3. Notice was duly served to respondent No.1. Respondent No.1 has not appeared before the court, hence, he was placed exparte.
4. After service of notice, the respondent No.2 spurred in rush to the Court by filing written statement rather objections to the petition contending that the petition is not maintainable either law or on facts. The respondent No.2 admitting the issuance of insurance policy in respect of Motorcycle bearing Reg.No.KA-42-EC-4014 in favour of 1st respondent. However the 4 SCCH-23 MVC-3007/2022 liability if any is pleaded to be subject to the terms & conditions of the policy. Non-compliance of section's 134(c) and 158(6) of MV Act is pleaded. This respondent specifically and empathically denied the occurrence, mode and manner of accident and also involvement of the vehicle in the accident. Negligence on the part of the rider of its insured motorcycle is denied by this respondent. Without prejudice to the said contention it is averred that the rider of the motorcycle did not possess valid & effective DL as on the date of accident. Despite knowing the said fact the owner thereof had handed over its possession to such a rider. The police have also filed chargesheet against the rider of motorcycle bearing No.KA-42- EC-4014 and owner of the motorcycle for the offences punishable u/s 279, 304(A) of IPC and Sec.3(1) r/w 181, 5 r/w 180 of MV Act and u/s 5 r/w 180 of IMV Act. On account of willful breach of the terms & conditions of the policy by the insured, the insurance company is not liable to indemnify him. Further denied all the allegation made in the petition. Hence prayed to dismiss the petition.
5. On the basis of the above pleadings the following issues were framed :
ISSUES
1) Whether the petitioners prove that they are the only legal representatives of deceased 'Sri.Pradeep. S' and were dependent on him ?
2) Whether the petitioners prove that the deceased 5 SCCH-23 MVC-3007/2022 succumbed to the injuries sustained in a road traffic accident that occurred on 18.05.2022 at about 11.20 p.m, Opposite KSRTC Depo No.5, Near BHEL Factory, KIMKO Junction, BHEL, Mysore road, Bengaluru City, due to actionable negligence of the rider of motorcycle bearing Reg.No.KA-42-EC-4014 ?
3) Whether the petitioners are entitled for compensation ? If so, what is the quantum and from whom ?
4) What order or award ?
6. Petitioner No.1 examined himself as PW.1. Ex's.P1 to 19 were marked on behalf of the petitioners. The petitioners further examined KSRTC Depot Manager, Bengaluru as PW.2 and through him Ex.P.20 to 22 were marked. In order to prove the defence, the respondent No.2 got examined RTO of Gnanabharathi as RW.1 and through him Ex.R.1 was got marked. Further the respondent No.2 has got summoned the owner of the offending vehicle and got examined him as RW.2. Further Ex.P.8(a) and Ex.P.9(a) were marked during chief- examination and Ex.R.2 was got marked by way of confrontation during the course of cross-examination after treating RW.2 partly hostile. Furthermore, the respondent No.2 has examined Senior Scientific Officer at State Forensic Science Laboratory, Bengaluru as RW.3. Ex.R.3 was got marked through her. The respondent No.2 has also got examined the I.O. who had investigated the matter as RW.4.
6SCCH-23 MVC-3007/2022
7. Heard erudite counsel for the petitioners and respondent No.2 counsel on merits. Perused the entire materials placed on record. Perused written arguments filed by the respondent No.2 counsel along with the citations relied upon.
8. This tribunal answers to the above issues are as follows :-
Issue No.1 : In the Affirmative
Issue No.2 : In the Affirmative
Issue No.3 : Partly in the Affirmative
Issue No.4 : As per final order for the
following :
REASONS
9. ISSUE NO.2 : As this issue clinches the whole dispute in controversy, this issue is taken for discussion at the inception for better appreciation of evidence and dissection of materials placed on record. The petitioners have knocked the doors of justice with a relief to grant a compensation to the tune of Rs.90,00,000/- on account of death of one Pradeep S. in a Road Traffic Accident. Before dwelling into analyzing the disputed facts in issue it is relevant to have the birds eye of the case of petitioners in a nutshell.
10. It is the case of petitioners that, on 18.5.2022 at about 11.20 p.m, when the deceased was proceeding as a pedestrian crossing the road from Mysore road KSRTC Depo 7 SCCH-23 MVC-3007/2022 No.5, opposite to SBI ATM, near Nayandalli junction to Kimko junction, at that time the rider of Motorcycle bearing Reg.No.KA-42-EC-4014 came with high speed in a rash and negligent manner so as to endanger human life and dashed to the deceased. Due to the impact the deceased fell down and sustained grievous injuries all over his body. Though he was shifted and treated in Pinnacle Hospital, Bengaluru but the same went in vain and he breathed his last to the accidental injuries in the hospital at 11.35 p.m. on same day. Postmortem was conducted and the corpse was handed over to the family members. It is specifically contended that, deceased was unmarried and he is the main pillar of the entire family. The deceased was working as Driver at KSRTC Corporation and was earning a sum of Rs.31,000/- p.m. and because of untimely death of deceased, the petitioners have suffered economically as well as emotionally. It is specifically urged that the accident happened because of rash and negligent act of the rider of Motorcycle and as such the respondent No.1 being the owner and respondent No.2 being the insurer of the offending vehicle are jointly and severally liable to pay the compensation. Hence prayed to allow the petition.
11. In order to substantiate the contentions of the petitioners, the petitioner No.1 stepped into the witness box and filed his affidavit-in-lieu of oral examination-in-chief as PW1 and got marked Ex's.P1 to 19 documents. The petitioners 8 SCCH-23 MVC-3007/2022 further examined KSRTC Depot Manager, Bengaluru as PW.2 and through him Ex.P.20 to 22 were marked. On the other hand in order to substantiate the defence of the respondent and to demolish the case of the petitioners, the respondent counsel has cross examined PW.1 & 2 at length.
12. Repelling to the contentions urged by the petitioners, the respondent No.2 has attacked the case of the petitioners on various prisms known to facts and law. The first and foremost contention urged by the respondent No.2 that, the deceased under the intoxication was crossing the road and he himself is liable for the accident and there was no negligence on the part of the respondent No.1 rider. The next squirt of the defence urged by the respondent No.2 is that, the rider of the respondent No.1 vehicle was not having valid driving licence as on the date of the accident, respondent No.2 cannot indemnify the respondent No.1. Hence prayed to dismiss the petition as against the respondent No.2.
13. In support of these contentions the respondent No.2 got examined RTO of Gnanabharathi as RW.1 and through him Ex.R.1 was got marked. Further the respondent No.2 has got summoned the owner of the offending vehicle and got examined him as RW.2. Further Ex.P.8(a) and Ex.P.9(a) were marked during chief-examination and Ex.R.2 was got marked by way of confrontation during the course of cross-examination after 9 SCCH-23 MVC-3007/2022 treating RW.2 partly hostile. Furthermore, the respondent NO.2 has examined Senior Scientific Officer at State Forensic Science Laboratory, Bengaluru as RW.3. Ex.R.3 was got marked through her. The respondent No.2 has also examined the I.O. who had investigated the matter as RW.4. In order to demolish the defence of the respondent No.2 and to substantiate the case of the petitioners, the petitioners' counsel has cross examined the RW.1 to RW.4 at length.
14. On dissection of materials placed on record, after marshaling of facts in issue and after hearing erudite counsel appearing for combating parties, this Tribunal opines that this issue is pregmented with inner issues such as :
1) Whether the petitioners prove that there is a negligence on the part of the respondent No.1-rider?
2) Whether respondent No.2 demonstrates that deceased was under the influence of alcohol at the time of accident and if so that contributes negligence on the part of the deceased?
15. Before dwelling into analyzing the factum of alleged negligence it is relevant to have the conceptual aspects pertaining to factum of negligence. There are four basic elements that a person has to fulfill in order to do a negligent act. These elements are as follows:
10SCCH-23 MVC-3007/2022 Duty: For committing a negligent act, there must be some duty on the part of the defendant. Here it is important to understand whether the defendant has taken legal duty of care towards the plaintiff.
Breach of Duty: After fulfilling the first criteria the plaintiff must prove that the defendant has breached the legal duty imposed on him/her. It talks about the breach of duty on the part of the defendant which he/ she is expected to do as he/ she has some legal duty towards the plaintiff. The action of causing something: It means that the damage caused to the plaintiff is due to the act of the defendant. Here the defendant may do an act which is not expected from him/her or the defendant may be negligent in not doing an act which was expected from him/ her. Damages: At last what matters is, there must be some damage/injury that is caused to the plaintiff and this damages should be the direct consequence of the defendant's act.
Negligence means a breach of duty caused by omission to do something which has reasonable man guide by those consideration which ordinarily regulated conduct of human affairs would do which a prudent man would not do. In common prevalence negligence connoted to the want of proper care and the rashness conveys the idea of recklessness or the doing of an act without due consideration.11
SCCH-23 MVC-3007/2022
16. Reverting back to the factual matrix, according to the version of the petitioners the accident happened on 18.05.2022 at about 11.20 p.m. On the very next day of accident i.e., on 19.05.2022 at about 6.10 a.m. the criminal law was set into motion as per Ex.P.2. On the basis of Ex.P.2, Ex.P.1 FIR was filed. There is absolutely no delay in setting criminal law into motion. As such this court cannot found fault of the petitioners based on delay.
17. Added more with regard to the cause of death, Postmortem was conducted as per Ex.P.6 wherein it reflects that the cause of death is because of head injury. The only dispute in controversy is with regard to the negligence. It is relevant to note that Ex.P.11 chargesheet is filed as against the rider of the offending vehicle. It is vociferously urged by the respondent No.2 counsel that, there is a negligence on the part of the deceased himself as he was under influence of alcohol. In order to substantiate the same apart from self serving statement there is absolutely no documentary proof placed before the court. Even in Ex.P.6 PM report does not spells about intoxication as alleged by by the respondent No.2. The respondent No.2 had also got summoned Senior Scientific Officer of State Scientific Laboratory and examined as RW.3. She has produced FSL report at Ex.R.3. The said FSL report also does not spells about as to alleged intoxication by the deceased. In the absence of any documentary or oral evidence 12 SCCH-23 MVC-3007/2022 only on the basis of self serving and self proclaimed statement of respondent No.2 cannot trusted as gospel truth.
18. One of the document which sheds light on the factum of the rash and negligent act is the spot Mahazar and Spot sketch which are marked as Ex.P.4 & 5 prepared at the time of spot mahazar. On perusal of the said sketch it reflects that, the accident happened on nearest to center median of the road. The total width of the road is 40 feets. The deceased was already crossed nearly 30 feet of the road and he ought to have reached his destination in just 10 feets. Much was stoutly canvassed by the learned counsel for the respondent No.2 contending that, there was no zebra crossing in that place as such the deceased also contributes for the accident. Only for the reasons that there was no zebra crossing at the place of accident that does not authorize the rider of the vehicle to ride the vehicle without following of the rules and regulations. The record discloses that, deceased would have walked some distance in the road. If the rider of the motorcycle was coming in normal speed then he would have certainly avoided the accident. Ex.P.5 sketch reflects that there is a rash and negligent act of the rider of the motorcycle. Added more Ex.P.10 IMV Report discloses that there is no mechanical defects whatsoever in the motorcycle vehicle.
19. No doubt the respondent No.2 has examined the Investigating Officer as RW.4. In his chief examination he stated 13 SCCH-23 MVC-3007/2022 that he has given notice to the driver and owner as per Ex.P.8. Reply given by the owner of the insured vehicle as per Ex.P.9. On careful perusal of Ex.P9 wherein the owner of the offending motorcycle has admitted the involvement of the vehicle. It is also forthcoming from Ex.P9 reply to 133 notice that the driver of the vehicle was not having valid DL at the time of accident. Be that as it may, the liability will be discussed in the later part of this judgment. Therefore it is crystal clear that the offending vehicle is caused accident and in the accident the deceased sustained injury and breathed his last. Further Ex.P.4 being the Spot mahazar spells out there is a negligence on the part of the rider of the offending motorcycle. Further the police records and oral and documentary evidence of the petitioners are proved that the accident was occurred on the sole negligence of rider of the offending motorcycle. These documentary reflects as to the factum of vehicle and manner of accident.
20. It is necessary to reassert that in a claim for compensation filed under Section 166 of Motor Vehicles Act, 1988, the claimant is expected to prove the incident on basis of principle of preponderance of probabilities and the view taken by this Court is fortified by the decision rendered by the Hon'ble Supreme Court in Kusum and others V/s Satbir and others which is reported in 2011 SAR (CIVIL) 319. Further the Hon'ble Supreme Court in case of Bimla Devi and others v. Himachal Road Transport Corporation and others reported in (2009) 13 SCC 530 has observed that, it is necessary to be 14 SCCH-23 MVC-3007/2022 borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants are merely required to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. Further the Hon'ble High Court of Karnataka in National Insurance Co. Ltd. Vs. Krishnappa and another reported in 2001 ACJ 1105, where the Hon'ble High Court of Karnataka considering the fact that the rider of the offending vehicle was not examined to prove any contributory negligence on the part of scooterist held that the accident had occurred due to rash or negligent driving by the rider of the offending van. Even in the instant case the rider of insured motorcycle is not examined to show that there was no negligence on his part and even otherwise the IO, as already observed, has clearly opined that the accident occurred only due to the fault of the rider of motorcycle and he was charge sheeted. Another important aspects to be noted here is, respondent No.2 did not made any endevour to examine the rider of insured motorcycle. In the absence of which mere contention of the respondent No.2 without there being any evidence cannot be trusted as a gospel truth. Viewed from any angle this court does not find any reason to distrust the version of the petitioners herein. The discussion supra makes it is abundantly clear that, the accident occurred solely due to the 15 SCCH-23 MVC-3007/2022 rash negligent riding of the motorcycle by its rider. As such, this Tribunal answers issue No.2 In the Affirmative.
21. ISSUE NO.1 : The petitioners claim that, Petitioner.No.1 & 2 are the parents of the deceased. To prove the same, petitioner No.1 filed affidavit in lieu of his chief- examination and deposed about the above relationship. The Aadhaar cards marked at Ex's.P.13 to 15 and contents of the police papers do fortify the said fact. It is pertinent to note that this relationship of the petitioners with the deceased has not been disputed by the respondent. Since the evidence led by the petitioners is satisfactory and also taking into consideration the fact that there are no rival claimants, this Tribunal hold that the petitioners are the legal representatives of the deceased. Therefore, petitioners are the legal heir and dependents of deceased. Hence, this Tribunal answers issue No.1 In the Affirmative.
22. ISSUE NO.3: This issue is actually the crux of the matter in controversy between the parties. In this petition the petitioners have claimed the compensation of Rs.90,00,000/- on the death of deceased Pradeep S. in the road traffic accident. The petitioners contended that, deceased was working as Driver at KSRTC, Bengaluru Central Division, Depot No.5, Bengaluru and earning sum of Rs.31,000/- p.m. In order to substantiate the above said factum the petitioners have produced the Employment ID Card, Bank Statement and Salary Slips, as per 16 SCCH-23 MVC-3007/2022 Ex.P.16, 18 & 19 which reflects that the deceased was working as Driver at KSRTC. The petitioners have also examined one M. Krishna as PW.2 who is the Depot Manager, Bengaluru Central Division, 5th Depot, Bengaluru through him Salary slips for the month of April-2022 and May-2022 and Attendance Register from November-2021 to May-2022 of deceased were marked as per Ex.P.20 to 22. Though he was cross examined at lenth by the respondent No.2 counsel but nothing fatal has to be eclicited during the course of cross eamination. Much was harped upon the respondent NO.2 counsel that PW.2 did not produced any documents to show that the deceased was working in KSRTC. Ex.P.16 being the Employment ID nuterilized the contents of the respondent No.2. Further as per the contents of Ex.P.18 account statement, salary was directly credited to the bank account of the deceased.
23. The next aspect to be considered to the age of the deceased. So far as the age of the deceased is concerned, the petitioners have produced the Aadhar card and DL of the deceased as per Ex.P.13 & 17, wherein, the date of birth of the deceased is mentioned as 05.07.1990 and the accident had taken place on 18.05.2022 and it shows that, at the time of accident the deceased was aged about 32 years. Hence the proper multiplier applicable to the case on hand is '16'.
24. The salary of the deceased for month of April-2022 as per Ex.P.20 was Rs.26,961/- and the same is taken into 17 SCCH-23 MVC-3007/2022 consideration as his monthly salary. Be that as it may, annual income works out to Rs.3,23,532/- (26,961 X 12). Out of the said annual income, professional tax & income tax needs to be deducted. The calculation table stands as follows :
Annual Gross Salary (Rs.26,961 x12) 3,23,532 Annual Professional Tax 2,400 (less) Total 3,21,132 Less Tax Exemption 2,50,000 (for the year 2022) Taxable Income 71,132 Tax payable @ 5% on 3,557 Rs.71,132/- (during the year 2022) Gross Income 3,23,532 Less Total Tax payable 5,957 (2,400 + 3,557= 5,957) Annual Established 3,17,575 Income Monthly Established 26,465 Income (3,17,575/ 12)
25. In the case on hand the deceased was aged 32 years. His income is taken as Rs.26,465/- p.m. In this case the deceased being an permanent employee had a permanent job. Therefore as per dictum of Hon'ble Apex Court in AIR 2017 SC 18 SCCH-23 MVC-3007/2022 5157, 50% of income is to be added towards future prospects. 50% of Rs.26,465/- works out to Rs.13,232/-. Therefore the total income comes to Rs.39,698/- p.m (26,465 + 13,233).
26. Further as stated above that, deceased was a bachelor, as per the decision reported in 2009 ACJ 1298 in between Sarla verma V/s. Delhi Transport Corporation, the 50% of the income of the deceased shall be deducted towards his personal expenses as the deceased unmarried, thereby the 50% income of the deceased has to be deducted for his personal expenditure. On such deduction, the income of the deceased comes to Rs.19,849/- p.m. (Rs.39,698 X 50/100).
27. The income of the deceased is taken as Rs.19,849/- p.m. and the multiplier '16' is applied, then the loss of dependency comes to Rs.38,11,008/- (Rs.19,849/- X 12 X 16). Considering the above facts, this Tribunal deems it just and reasonable to grant for compensation of Rs.38,11,000/- under the head of loss of dependency.
28. Further, as Law laid down by the Hon'ble Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others, the compensation towards loss to estate, funeral expenses and consortium is to be awarded. The petitioners contended that they have spent substantial amount towards transportation of dead body, funeral and obsequies etc., but no documents are produced. Hence this Tribunal award Rs.18,150/- towards loss 19 SCCH-23 MVC-3007/2022 to estate and Rs.18,150/- towards funeral expenses as enhanced at the rate of 10% on every 3 years.
29. In this case, petitioners No.1 and 2 are the father and mother of the deceased and as per the decision reported in (2018) 12 SCC 130 between Magma General Insurance Company Limited V/s Nanu Ram alias Chuhru Ram and others, the petitioner is entitled for filial consortium, as the filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose of their child during their lifetime. Children are valued for their love, affection, companionship and their oral in the family unit. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. Children are valued for their love and affection, and their role in the family unit. The Hon'ble Apex Court in the decision reported in (2020) 9 SCC 644 in the case of the New India Assurance Company Ltd V/s Smt.Somwati & others, has held that the claims Tribunal shall award Parental and Filial Consortium in a sum of Rs.40,000/-. Therefore, 20 SCCH-23 MVC-3007/2022 petitioners No.1 and 2 are entitled for Rs.40,000/- each under the head of Filial consortium.
30. The calculation table stands as follows :
Compensation heads Compensation amount
1. Towards loss of dependency Rs. 38,11,000/-
2. Towards loss to estate Rs. 18,150/-
3. Towards transportation of Rs. 18,150/-
dead body funeral and obsequies ceremony expenses
4. Towards loss of Filial Rs. 80,000/-
consortium to petitioner No.1 & 2Total Rs.39,27,300/-
31. REGARDING INTEREST & LIABILITY: Having regard to the nature of the claim and current bank rate of interest, this Tribunal is of the view that if interest at the rate of 6% per annum is awarded it would meet the ends of justice.
32. While answering the issue No.1 this Tribunal comes to the conclusion that, accident occurred due to the negligence of the rider of motorcycle bearing registration No.KA-42-EC-4014. The respondent No.2 admitted the issuance of policy in respect of the offending vehicle. The respondent No.2 contended that at the time of the accident the rider of the motorcycle bearing registration No.KA- 42-EC-4014 was not holding driving license, hence it is violation of terms and conditions of the policy as such they are not liable to pay compensation to the petitioner.
21SCCH-23 MVC-3007/2022 In support of this contention the RTO, Gnanabharathi is examined as RW.1. He during his chief examination has stated based on the name and address the DL was not traced.
33. The respondent No.2 has also examined the owner of the motorcycle had given evidence as RW.2. He in his chief examination had deposed that he was the owner of the offending vehicle and he sold the offending vehicle to Auto consultant association, Ramanagara. Further from his chief examination it could be culled out that he has not collected the documents from the dealer after the vehicle was sold. Further he admitted his signature affixed at Ex.P.8 and 9 which is marked as Ex.P.8(a) and 9(a). Thereafter he was treated partly hostile by the respondent No.2 counsel and he was cross examined wherein he denied all the suggestions made by the respondent No.2 counsel. Further it is admitted that as on the date of accident the vehicle stands in his name and also admits that he has not challenged the chargesheet. When this court dwells upon the contents of Ex.P.8 being 133 Notice it reflects that 133 notice was served on Respondent NO.1 who is examined as RW.2. Even the RW.2 had also admitted his signature found in Ex.P.8. Added more RW.2 has also replied the notice as per ExP.9 stating that the vehicle was rided by one Mousin Pasha on the date of accident and he did not had any DL. The signature found in Ex.P9 was also admitted by Respondent No.1. From the contents of Ex.P.8 and 9 coupled with the evidence of RW.1 it is clearly forthcoming that the 22 SCCH-23 MVC-3007/2022 respondent No.1 has consciously handed over his vehicle to a person who did not possess the DL.
34. Added more the respondent No.2 has also examined the Investigating Officer as RW.4. In her chief examination she stated that she has given notice to the driver and owner as per Ex.P.8. Reply given by the owner of the insured vehicle as per Ex.P.9. On careful perusal of Ex.P.9 wherein the owner of the offending motorcycle has admitted the involvement of the vehicle. It is also forthcoming from Ex.P9 reply to 133 notice that the driver of the vehicle was not having valid DL at the time of accident. She further deposed that she has invoked Sec.3 r/w 181 in Ex.P.11 chargesheet.
35. Further by perusing the chargesheet marked as per Ex.P11 it is clear that the charge sheet is filed against the rider for the offense punishable U/Sec.279, 304(A) of IPC and 3 r/w 181 of M.V.Act. The charges are leveled against the owner of the motorcycle i.e., respondent No.1. the respondent NO.1 was charged u/s 5 r/w 180 of IMV Act for giving the offending vehicle to the rider knowingly that the rider did not possess valid DL. The respondent No.1 had consciously handed over the offending vehicle to one Mousin Pasha. Hence it is clear that the respondent No.1 has violated the terms and conditions of the policy. Further it is clear that the respondent No.1 knowing well that the rider of the motorcycle was not holding driving license 23 SCCH-23 MVC-3007/2022 permitted Mousin Pasha to ride the motorcycle. Hence it is also clear that the respondent No.1 has violated the policy condition.
36. the date of accident plays an important role in this case. The accident happened on 18.05.2022. the amended MV Act came into force on 01.04.2022. It is relevant to rely on the Citation No.FAO-1081-2024 (O & M) in the case of Universal Sompo Gen.Ins.Co.Ltd. V/s Anuj Rani and other with respect to amendment of sec.150 and stated that the tribunal directed the appellant / Insurance company to pay the award amount to claimants and then to recover from driver / owner. Further it is to be noted that in the said case that the accident took place on 27.05.2022 and the amendment to Motor Vehicles Act came into force w.e.f 01.04.2022.
37. Reverting back to the factual matrix, this court also does not loose sight of the fact that, the accident had happened on 18.05.2022. The amendment to the MV Act came into force on 01.04.2022. The amendment to Sec.150 of MV Act makes it crystal clear that, if a person drives a vehicle without DL, than there is no question of making insurance company liable. Further the provision makes it clear that, there is no question of even pay and recovery. Under such circumstances the insurance company cannot fastened with a liability of pay and recover when there is clear breach of conditions. This accident is subsequent to that of the amendment to the IMV Act. When 24 SCCH-23 MVC-3007/2022 such being the case, the Respondent No.2 insurance company cannot be made liable.
38. Further, the petitioner counsel has relied on a decision reported in (2018) 3 SCC 208 in the case of Pappu V/s Vinod Kumar Lamba, (2018) 9 SCC 650 in the case of Shamanna V/s Oriental Ins.Co.Ltd and contended that even though there is violation of terms and conditions of the policy the insurance company is liable to pay compensation to the petitioner. But the facts and circumstances stated in the said cases and present case on hand are entirely different. In the above said judgments it is held that in case of fake/invalid driving license the insurance company has to prove that the owner of the motor vehicle need to establish that the owner was aware of fact that license was fake/invalid and still permitted the driver to drive the vehicle, in that circumstances the insurance company is not liable to pay compensation, if the insurance company failed to prove that even the owner of the vehicle knowing that the driver vehicle was having fake/invalid driving license permitted the driver to drive the vehicle them insurance company is liable to pay compensation to the petitioner. But in the present case on hand the rider without DL was riding the motorcycle and caused this accident and it is not the case of fake/invalid driving license. Hence with due respect to the above said judgment same are not applicable to the present case on hand. Added more, those decisions are rendered prior to the amendment to Sec.150 of the MV Act. When such being the 25 SCCH-23 MVC-3007/2022 case, the ratio laid down therein cannot be made applicable to the instant case on hand.
39. Further respondent No.1 has relied on the judgment of M.F.A.No.3297/2019 in the case of Smt.Adilakshmamma and Others Vs., Sri. Raju and other and contended that when the owner knowing that rider of the motorcycle was not holding driving license and handed over his motorcycle to the rider who is not having driving license then the owner is liable to pay compensation to the petitioner. In this case on hand also the respondent No.1 is the owner of the motorcycle and he is knowing well that the rider is not having driving license and permitted the rider to ride his motorcycle and the rider caused this accident, hence the respondent No.2 is not liable to pay compensation to the petitioner, but the respondent No.1 who is the owner of the motorcycle is liable to pay compensation to the petitioner. The said authority relied by the learned counsel for the respondent No.2 is applicable to the present case on hand.
40. Further on the same point of law the learned counsel for respondent no.2 has relied on the judgment in MFA- 6154/2019 in the case of Smt. Hemalatha @ Hema @ Hemavathi and others v/s Bajaj Allianz Gen.Ins.Co.Ltd, wherein the Hon'ble High Court of Karnataka after considering the judgment of the Apex Court in (i) Pappu V/s Vinod Kumar Lamba, (ii) Bishan Devi v. Surbakshi Singh (iii) Shamanna V/s Oriental Ins.Co.Ltd., (iv) Iffco Tokio Gen.Ins.Co.Ltd V/s Geeta 26 SCCH-23 MVC-3007/2022 Devi (v) National Ins.Co.Ltd., V/s Swarna Singh it clearly distinguished the factum of no DL and fake DL and observed as hereunder :
27. Learned Counsel for the appellants relied on the judgment of the Hon'ble Supreme Court in the case of Swaran Singh's, Pappu's, and Shamanna'scases referred to supra, to contend that, even if there is no driving license the insurer is liable to pay the damages to the claimants and recover the same from the owner of the vehicle. Those judgments referred to the principle of pay and recovery in case of breach of policy condition for disqualification of the driver to hold the license or holding of an invalid driving license. They did not relate to a case of no driving license at all.
28. Learned counsel for the appellants/claimants relied on Bishan Devi's case referred to supra to contend that even in case of no license also, the insurer is liable. Plain reading of the said judgment shows that in that case it was held that the insurer had failed to prove its defence that vehicle was driven by a person without license. In the present case the defence of the insurer that the offending vehicle was driven by a person having no license and the same is 27 SCCH-23 MVC-3007/2022 proved. Therefore, the said judgment is not applicable to the facts of the present case.
Reverting back to the factual matrix, respondent.No.1 the owner of the vehicle neither contested the petition by filing written statement nor adduced any evidence claiming that he did not consciously permit the rider to ride the vehicle. The said act of the respondent No.1 is a clear breach of fundamental breach of policy condition within the meaning of Sec149(2)(a)(ii) of MV Act. The respondent No.1 being the owner of the motorcycle bearing registration No.KA-42-EC-4014 is liable to pay compensation to the petitioner with interest at the rate of 6% p.a from the date of petition.
41. Further on the same point of law the respondent No.2 had also relied on decision of the Hon'ble High Court of Karnataka in M.F.A.No.187/2017 in the case of Manager, Bajaj Allianz Gen.Ins.Co.Ltd., V/s Chandrakala and others decided on 18.02.2023 wherein it was held that if owner failed to appear before the court, inspite of notice and failed to take reasonable care while entrusting the vehicle then there is a gross negligence on the part of owner. Hence the insurance company cannot be fastened with the liability. Further the respondent No.2 has also relied on decision of Hon'ble High Court of Karnataka in M.F.A.No.100226/2016 in the case of Padma and others Vs., Ramanjali Naidu and others wherein it was held 28 SCCH-23 MVC-3007/2022 when the owner failed to take reasonable steps to verify the DL of the driver and the owner did not step into the witness box to prove the DL the adverse inference has to be taken against the owner. In the instant case on hand also through the owner who is examined as RW.2 during his chief examination has stated that he has sold the vehicle to the Auto consultants, Ramanagara but absolutely there is no materials placed on record by the respondent No.1. In a way RW.2 had categorically admitted that as on the date of accident the offending vehicle stands in his name. Above all RW.2 in unequivocable terms had admitted with regard to the reply to the 133 notice as per Ex.P.9. The contents of ExP.9 also discloses that he knows the rider of the vehicle Mosin Pasha. This makes it clear as a cloud less sky that respondent No.1 consciously had handed over the offending vehicle to a person who do not have DL. This is the fundamental breach of policy conditions. Under such circumstances the insurance company cannot fastened with a liability of pay and recover that there is clear breach of conditions. The respondent No.1 who is the owner of the offending vehicle is liable to pay the compensation awarded by this Tribunal. Hence this issue is answered as 'Partly in the Affirmative'.
42. ISSUE NO.3 : In view of the discussion made supra, this Tribunal proceeds to pass the following :
29SCCH-23 MVC-3007/2022 ORDER The petition filed under Section 166 of M.V. Act 1988, is hereby partly allowed with costs in the following terms :
The petitioners are entitled for compensation of Rs.39,27,300/- with interest at the rate of 6% p.a. from the date of claim petition till realization of the entire award amount.
The respondent No.1 i.e., the RC owner of the Motorcycle bearing No.KA-42-EC-4014 is liable to pay and directed to deposit the compensation amount within a period of two months from the date of award.
On deposit of the award amount together with interest, the claimants are entitled for the compensation amount by way of apportionment as follows :
Petitioner No.1 - 50%
Petitioner No.2 - 50%
Out of the share amount of Petitioner No.1 & 2
a sum equal to 25% shall be deposited in their names in any Nationalized or Scheduled Bank of their choice for a period of 3 years and the remaining 75% shall be released to them through E-payment on proper identification and verification. However the said petitioners are at liberty to withdraw the 30 SCCH-23 MVC-3007/2022 periodical interest accrued on her deposit amount from time to time.
The petition is dismissed against respondent No.2 i.e., The New India Assurance Co. Ltd.
Advocate fee is fixed at Rs.1,000/-. Draw an award accordingly.
(Dictated to the Stenographer directly on computer & printout taken by him, then corrected and pronounced by me in the open court on this the 4th day of July 2024).
(Aalok. A.N) XXI Addl. Small Causes Judge & ACJM, Bengaluru.
ANNEXURES List of witnesses examined for the petitioner/s:
PW.1 : Sri. Shivanna S.K. PW.2 : Sri. M. Krishna
List of documents got marked for the petitioner/s:
Ex.P.1 True copy of FIR
Ex.P.2 True copy of Complaint
Ex.P.3 True copy of further statement in Crime No.74/2022
of Byatarayanapura Traffic PS
Ex.P.4 True copy of Spot Mahazar
Ex.P.5 True copy of Spot Sketch
Ex.P.6 True copy of PM report
Ex.P.7 True copy of Inquest report
Ex.P.8 True copy of Notice issued U/S 133 of IMV Act
Ex.P.8(a) Signature of RW.2
Ex.P.9 True copy of Reply to the above notice
31
SCCH-23
MVC-3007/2022
Ex.P.9(a) Signature of RW.2
Ex.P.10 True copy of IMV Report
Ex.P.11 True copy of Chargesheet
Ex.P.12 Death Extract of the deceased
Ex.P.13 Notarized copy of Aadhar Card of deceased Ex.P.14 Notarized copy of Aadhar Card of PW.1 Ex.P.15 Notarized copy of Aadhar Card of petitioner No.2 Ex.P.16 Notarized copy of Employment ID card of deceased Ex.P.17 Notarized copy of Driving Licence of the deceased Ex.P.18 Bank account statement of the deceased for the period from 01.06.2020 to 31.03.2022 Ex.P.19 Salary slips of the deceased (2 in Nos.) Ex.P.20 Salary slip of the deceased for the month of April 2022 Ex.P.21 Salary slip of the deceased for the month of May 2022 Ex.P.22 Attendance Register from November 2021 to May 2022 List of witnesses examined for the respondent/s:
RW.1 : Sri. Naveen Kumar K. RW.2 : Sri. Naheem Khan RW.3 : Dr. Usha Nandini RW.4 : Smt. Roopa Hadagali
List of documents got marked for the respondent/s :
Ex.R.1 Authorization Letter
Ex.R.2 Copy of the policy
Ex.R.3 FSL Report
(Aalok. A.N)
XXI Addl. Small Causes Judge
& ACJM, Bengaluru.