Bangalore District Court
Pushpalatha vs Maria Joseph Sampath Kumar on 3 October, 2024
SCCH-24 1 M.V.C.3157/ 2023
KABC020033222023
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 3rd day of October 2024.
M.V.C.3157/2023
Petitioner 1. Smt.Pushpalatha
D/o late Somashekariah,
Aged about 47 years,
2. Sri.Suresh Babu M S
S/o late Somashekaraiah,
Aged about 50 years,
3. Sri. M.S Paramesh
S/o late Somashekaraiah,
Aged about 44 years,
All are residing at:
# 564, 69th cross road,
14th main road, KS Layout,
J.P Nagar, Bangalore -78.
(By Sri.K.T.Madhu, Advocate)
SCCH-24 2 M.V.C.3157/ 2023
-VERSUS-
Respondents 1. 1. Mr.Maria Joseph
Sampath Kumar
S/o Irudayaraj
Flat No.302, 1st sector,
Aarna Residency,
8th main, 11th cross road,
Kammasandra, E - City,
Bangalore -560 100.
(owner of car No.KA-51-MR-1414)
(By Sri.Yogaraju M, Advocate)
2. ICICI Lombard Motor Insurance
Co.Ltd.,
Legal Office, #121, 9th floor,
the Estate,
Dickenson Rd, MG road,
Sivanchetti Gardens,
Bangalore -42.
(Policy No.3001/MM-16380187/00/000
valid from 19-08-2021 to 18-08-2022)
(By Sri.Kiran Pujar, Advocate)
:: J U D G M E N T ::
This petition is filed by the petitioners U/s 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs.20,00,000/- with respect to the death of deceased Sri M.L.Somashekaraiah who met with road traffic accident.SCCH-24 3 M.V.C.3157/ 2023
2. The petition averments in brief are that:
Petitioners are the children of victim namely M.L.Somashekariah. On 19-07-2022 at about 11-45 a.m., the deceased was walking by the side of 14th main road, opp., Prestige shop, KS Layout, Bangalore, at that time a car (Mahindra SUV) bearing Reg.No.KA-51-MR-1414 driven by its driver in a rash and negligent manner came at a high speed to the extreme right side of the road dashed against the deceased, result of which M.L Someshekaraih fell down and sustained grievous injuries and succumbed to the injuries on the way to the hospital. The petitioners carried the dead body by hiring an ambulance by paying sum of Rs.10,000/- and performed his last rites for which they incurred sum of Rs.1,00,000/-.
3. Prior to the accident, the deceased was hale and healthy; he was aged about 78 years. He was retired Government employee served as a Finance Senior Assistant at Bangalore University, Bangalore and he was getting a family Pension of Rs.23,826/- per month . The deceased was also doing real estate business and earning additional sum of Rs.25,000/- per month. Due to the sudden death of deceased, petitioners have suffered SCCH-24 4 M.V.C.3157/ 2023 mental agony and other pecuniary and non-pecuniary damages.
4. In response to the summons, though the Respondent No.1 appeared through his counsel, but has not contested the case.
5. Respondent No.2- the insurer of car bearing Reg.No.KA-51-MR-1414 has filed the written statement and contended that the present claim petition came to be filed on 02-02-2023 which is much after lapse of statutory period of six months and same is barred by time and not maintainable under the provisions of MV act. They have 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 the insured vehicle was not at involved in the accident. It is further contended that the jurisdictional police after thorough investigation has filed charge sheet u/Sec.3 (1), 181, 5, 180 of MV Act stating that the driver of insured car was not holding driving license. It is further contended that the deceased himself was negligent in causing the accident because he as pedestrians was not suppose to cross the road. Hence there is gross violation of the traffic SCCH-24 5 M.V.C.3157/ 2023 rules on the part of the deceased and there is no negligence on the part of the driver of insured vehicle.
6. The following issues came to be framed in this case;
1. Whether the petitioners prove that Sri M.S Somashekariah was died on account of road traffic accident on 19-07-2022 at about 11- 45 a.m, on 14th main road, Opp to Prestige shop, KS Layout, Bangalore, due to rash and negligent driving of the driver of car bearing Reg.No.KA-51-MR-1414?
2. Whether the petitioners are entitled for compensation as claimed? If so, to what amount and from whom?
3. What order or award?
7. In order to prove the above issues, the petitioner No.1 got examined herself as Pw1 and got marked documents as Ex.P.1 to P9. On the other hand, the respondent No.2 represented by its Legal officer got examined himself as Rw1 and got marked True copy of policy and letter issued to the owner with postal receipts as Ex.R1 and R2.
8. My findings on the above issues are as follows:
Issue No 1: In the Affirmative Issue No 2: Partly in the Affirmative, SCCH-24 6 M.V.C.3157/ 2023 Issue No 3: As per final order, for the following:
:: REASONS ::
9. Issue No.1 :- Petitioners have categorically contended that on 19-07-2022 at about 11-45 a.m., Sri M.S Somashekariah ( here in after called the deceased) was walking by the side of 14th main road, opp., Prestige shop, KS Layout, Bangalore, at that time a car (Mahindra SUV) bearing Reg.No.KA-51-MR-1414 (here in after called the offending vehicle) driven by its driver in a rash and negligent manner came at a high speed to the extreme right side of the road dashed against the deceased, result of which deceased fell down and sustained grievous injuries and succumbed to the injuries on the way to the hospital.
10. In order to prove the petition averments, petitioner no.1 who is the daughter of deceased got examined herself as Pw1 and produced in all 9 documents, among them Ex.P1 to Ex.7 are the F.I.R, spot mahazar, spot sketch, IMV report, Inquest, PM report and charge sheet, which are the material documents to prove the present issue.
SCCH-24 7 M.V.C.3157/ 202311. On the basis of the complaint lodged by Smt.Pushpalatha M S, case has been registered against the driver of offending vehicle in Crime No.0145/2022 of Kumaraswamy Traffic Police Station for the offence punishable under section 279, 304-A of IPC. After completing investigation, the investigation officer filed charge sheet against the driver of offending car for the offences punishable under Section 279, 304(A) of IPC.
12. So far as the rash and negligent driving of the offending vehicle is concerned, if the spot mahazar and sketch is perused, the width of the road at the spot of accident is nearly 40 feet and the accident in question has occurred on the extreme left side of the road. The offending vehicle which came from opposite direction i,e from Sagar hospital side hit against the pedestrian. From the spot mahazar it can clearly be gathered that the offending vehicle which came on the extreme right side of the road i.e by encroaching nearly 40 feet width road hit against the deceased who was the pedestrian on the extreme left side of the road. Had the driver driven his vehicle on the left side of the road from which he was preceding this accident definitely would not have occurred. Hence it can be said without any hesitation that for the said accident the driver of the offending SCCH-24 8 M.V.C.3157/ 2023 vehicle alone has contributed negligence and no amount of negligence was contributed by the deceased.
13. So far as the delay in filing the claim petition is concerned, it is true that the petitioners have not filed any application under section 5 of the Limitation Act to condone the delay but the hon'ble Chief Judge while passing orders on registration of the claim petition has condoned the delay in filing the claim petition taking in to consideration the Air Misc No 488/2022 filed by the police as per Rule 150 (a) 920 on 17/11/2022 and condoned the delay by o observing that in view of Air Misc filed at an earlier stage, the said report is considered as an application. Hence issue no 1 is answered in the Affirmative.
14. Issue no 2 : 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. In the Ex.P8/Aadhar card, the age of the deceased is shown as 78 years. Hence it can be said that as on the date of accident, the deceased was aged about 78 years.
SCCH-24 9 M.V.C.3157/ 202315. As per the case of petitioners, the deceased was a retired Government employee served as a Finance Senior Assistant at Bangalore University, Bangalore and getting a family pension of Rs.23,826/- per month. He was doing Real Estate business and earning additional sum of Rs.20,000/- per month. In order to prove the income, the petitioners have produced Ex.P9/bank statement of deceased where there is an entry regarding sum of Rs23,311/- credited every month towards pension amount. From the aforesaid document it can be said that the deceased being government employee was getting pension of Rs23,311/- every month. From the evidence of petitioners it can further be gathered that the wife of deceased predeceased him. Normally after the death of pensioner, some part of the pension amount of the pensioner would go to his wife. '
16. In the present case as observed supra, the wife of deceased predeceased him. Admittedly, petitioner no1 is the married daughter of deceased living in her matrimonial house. Petitioners no 2 and 3 are the married sons of deceased having their own employment and living separately with their family Had the wife of deceased alive she would have get some percentage of pension amount of her husband till her life time. Under such circumstances the wife being SCCH-24 10 M.V.C.3157/ 2023 the dependent of the deceased this court would have awarded just compensation to the extent of difference of pension amount which the deceased was receiving and the pension amount which the wife is receiving after the death of deceased. When a Government servant or an earning member dies in an accident who is a pensioner and if pension rules permit for family pension and to that extent which is reduced on the death that surely is to be compensable in addition to what the heirs would get as a family pension.
17. It is vehemently argued by the learned counsel for respondent no.2 that petitioners not being the dependent of the deceased are not entitled for compensation under the head loss of dependency.
18. The learned counsel for petitioners at this juncture has referred the judgment reported in 2020 ACJ 759 between National Insurance Company Ltd Vs Birender decided by hon'ble Apex Court where in the claim petition was filed by the major sons of the deceased who are an agriculturist . IN the said case the material issue raised before the Hon'ble Apex court was (i) whether the major sons of the deceased who are married and gainfully employed or earning can claim compensation under the MV Act (ii) Whether such legal SCCH-24 11 M.V.C.3157/ 2023 representatives are entitled only for compensation under the Conventional head. The hon'ble Apex court held that the legal representatives of the deceased could move application for compensation by virtue of clause © of Section 166(1). The major married son who is also earning and not fully dependent on the deceased would be still covered by the expression legal representative of the deceased.
19. If the observation made in the aforesaid ruling is applied to the case in hand, since petitioners are the married children of deceased and even during the life time of deceased they were leading independent life by living separately with their family and since deceased was aged person leading life in his pension amount, under such circumstances it can be said without any hesitation that the petitioners are not the dependents of the deceased but are the legal representatives of the deceased and claim petition filed by them as the legal representatives of the deceased is very well maintainable.
20. Now the question to be decided is, the petitioners being the legal representatives of the deceased, under what are all the heads they are entitled to get the compensation.
SCCH-24 12 M.V.C.3157/ 202321. Now at this juncture it would be relevant to refer here the ruling reported in 2004 (5) Kar. L.J 321 Division Bench between A Manavalgan Vs. A.Krishnamurthy & Ors, where in it was held that "the question of awarding compensation under the head "loss of dependency"
would not arise in absence of financial dependency of the claimant on income of deceased. Claim petition to be treated as one on behalf of estate of deceased and compensation received by claimant forms part of that estate".
22. In ILR 2008 KAR 1561 between M/s Oriental Insurance Co. Ltd., Vs. Shivamma & Ors. It was held that "if the claimants were not dependent on the income of the deceased, compensation under the head "Loss of dependency" cannot be granted. At best in which circumstances, a nominal sum as compensation towards "loss of estate" can be granted by applying an appropriate multiplier. It was further held that "where the claimants who are dependents of the deceased claims loss of dependency and where the claimants who are not the dependents of the deceased claim only loss to estate".
23. In the said cases, by considering that the claimants are not the dependents of the deceased but SCCH-24 13 M.V.C.3157/ 2023 only the legal representatives of the deceased, the Hon'ble High Court awarded compensation under the head loss of estate but not under the head loss of dependency. Further the loss of estate was calculated by taking the amount spent for personal living expense as ¾th of the income and savings was taken as 1/4th and adopted multiplier which is applicable to the age group of the deceased.
24. In the present case the deceased was getting pension amount of Rs 23,311 /-. If the monthly income of the deceased is considered as Rs.23,311 /-, out of which if 3/4th is deducted towards the personal expenses of the deceased , there remains Rs.5,828 /- per month as the savings of deceased. Since deceased was aged about 78 years the multiplier applicable is 5. Hence, the loss of estate would be (Rs.5,828 x 12 x5) = Rs.3,49,680/-.
25. Because of the untimely death of deceased, petitioners 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 SCCH-24 14 M.V.C.3157/ 2023 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/- respectively. 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.
26. 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/-.
SCCH-24 15 M.V.C.3157/ 202327. In the circumstances, the loss assessed by the petitioners due to the death of deceased is calculated as follows:' 1 Loss of Estate Rs. 3,49,680 2 Transportation and funeral Rs. 18,150/- expenses 3 Loss of spousal consortium, Rs.1,45,200/-
parental consortium and
filial consortium
(Rs.48,400x3)
Total 5,13,030/-
Thus, in all petitioners are entitled to Rs.5,13,030/- (Rupees Five Lakh Thirteen Thousand Thirty Only) and it is just and adequate compensation under the facts and circumstances of the case.
28. There is no dispute that at the time of accident the offending vehicle was covered with the insurance policy issued by the respondent no.2.
29. The learned counsel for respondent no.2 has vehemently submitted that the driver of offending vehicle had no driving license and respondent no.1 being the owner of the offending vehicle had consciously permitted the driver to drive the vehicle, hence there is fundamental SCCH-24 16 M.V.C.3157/ 2023 breach of policy condition. Hence respondent no.2 is not liable to pay the compensation.
30. Keeping in mind the line of argument canvassed by the learned counsel for respondent no 2, if the materials placed on record more particularly charge sheet at Ex.P7 is perused , the charge sheet is filed against the driver of offending vehicle in addition to the offence u/Sec.279 and 304-A of IPC even for the offence u/Sec.3(1), 181, 5, 180 of MV Act. Column 11 of the charge sheet says that the accused Yathish M drove the vehicle without driving license.
31. It is vehemently argued by the learned counsel for petitioners that respondent no 2 has not proved with cogent materials that the driver of offending vehicle did not have valid driving license by not examining the RTO and that mere allegation in charge sheet does not mean that the driver had no license, hence liability is to be imposed on the respondent no 2. The learned counsel for the petitioners at this juncture has referred judgment rendered in MFA No 5308/2011 between United India Insurance Company Ltd / Smt Rathna and Another decided on 25th Day of November 2011 (MV) where in it was observed that " to hold that the driver of the insured SCCH-24 17 M.V.C.3157/ 2023 vehicle had no driving license as on the date of accident , there must be clear evidence on the record of the case to that effect . Police charge sheet is no evidence to hold that the driver of the insured vehicle had no driving license as on the date of accident.
32. In (2018) 8 SCC 799 between Ram Chandra Singh / Rajaram and Others it was observed that only in case when owner was aware of the fact that license was fake / invalid and still permitted the driver to drive the vehicle under such circumstances only the insurance company can be absolved from the liability.
33. Coming to the case in hand, it is true that respondent no.2 has not examined the RTO to prove the fact that the driver had no driving license. The burden of respondent no.2 proving its contention that the driver of offending vehicle drives the same without license arises only if there is a dispute with regard to the same. Ex.P7 - charge sheet relied on by the claimants themselves states that the vehicle was driven without license. Thereby there is an admission in the evidence of claimants themselves regarding rider riding the vehicle without the license. It is observed in (2007) 13 SCC 476 between Oriental Insurance Co.Ltd., Vs Premalata Shukla that" if a party SCCH-24 18 M.V.C.3157/ 2023 produces a documents and once the same is proved, he cannot seek to rely one part of the document and ignore the other parts of the document". Hence, when petitioners relied upon Ex.P7, they have to admit that charge sheet is filed even against respondent no.1 who is the owner of the offending vehicle for his permitted the accused to drive the vehicle without having valid driving license.
34. Admittedly, respondent no.1 the owner of offending vehicle having appeared through counsel not contested the petition by not filing written statement and not adducing any evidence claiming that he did not consciously permit accused to drive the vehicle. The fact of accused driving the vehicle without driving license was not impeached by the respondent no.1. Further though notice was issued by the insurance company as evident from ExR2 to the respondent no1 to produce the driving license of his driver , but he has not taken any steps to produce the driving license of the driver . If driver had valid driving license, nothing prevented the respondent no1 from producing the driving license. Hence, the very act of respondent no.1 permitted the accused to ride the vehicle without driving license would amount to fundamental breach of policy condition.
SCCH-24 19 M.V.C.3157/ 202335. Now the prime question to be decided is, for the breach of the policy condition whether insurance company is held liable or whether pay and recovery can be ordered or whether owner alone be held liable to pay the compensation.
36. The learned counsel for respondent no 2 at this juncture has referred the judgment rendered by Hon'ble High Court in MFA No.3297/2019 between Smt.Adilakshmammama & Ors., Vs. Sri Raju & anr., decided on 13-04-2023 and MFA No.6154/2019 between Hemalath @ Hema @ Hemavathi & Ors., Vs. Bajaj Allianz General Insurance Co. Ltd., & Anr., decided on 14-12- 2023. In both the cases, the driver of offending vehicle did not have driving license. Under the given set of facts the Hon'ble High Court fixed liability on the owner of the offending vehicle to pay the compensation by exonerating the insurance company from the liability.
37. The learned counsel for respondent no 2 in further has vehemently submitted that after amendment to MV Act dated 1/4/2022 no liability can be fixed on the insurance company to pay the compensation for violation of policy condition including not holding valid driving license and no order of pay and recovery can be passed.
SCCH-24 20 M.V.C.3157/ 2023The learned counsel for the respondent no 2 at this juncture has referred the provision of MV Act prior to the amendment and post Amendment to section 149 and 150 of MV Act.
38. So far as the line of submission canvassed by the learned counsel for respondent no 2 regarding exonerating the liability of insurance company in case of violation of policy condition prior to the amendment to MV act and with respect to the two citation referred above is concerned, it is true that the respondent no 2 has proved that at the relevant time of accident the driver of the offending vehicle had no valid driving license, but so far as the liability of insurance company under the said circumstances prior to the amendment to MV Act is concerned, if the judgment rendered by the Hon'ble High Court of Karnataka, Dharwad Bench in MFA No.21760/2011 between The Divisional Manager, New India Assurance Co. LTD., vs. Kotrappa and others is perused wherein, in the similar set of facts the Hon'ble High Court has ordered pay and recovery even though the driver of the offending vehicle had no driving licence. In the said case, reference was made of full bench of Hon'ble High Court in New India Assurance Company limited Vs. Yellavva and another. In the said case also, though the SCCH-24 21 M.V.C.3157/ 2023 driver of the offending vehicle did not possess valid licence the Hon'ble High Court full bench has ordered the insurance company to pay the compensation and recover the same from the owner of the vehicle. In the said case the Hon'ble Full bench has considered the situation under which the order to pay and recover could be passed against the insurer when there is violation of condition/s of the insurance policy. In the said case, the question that was referred before the Hon'ble High Court was;
a. When the insurance policy is not 'Act' policy in terms of Sec.145 and 147 of the Motor Vehicles Act, but a contractual policy issued collecting extra premium indicating insurance company has enlarged its liability, will not the insurance company be liable to pay and recover even if there is any breach by the insurer?
b. In such cases, is not the rule to 'pay and recover' applicable in view of the mandate in Sec.149 of MV Act that upon issuance of policy, the insurer is bound to discharge the award as if it were a judgment debtor?
39. The Hon'ble High Court has answered the said questions as follows:
SCCH-24 22 M.V.C.3157/ 2023i) Having regard to Sec.149(1) R/W Sec.149(7) whenever a case falls under Sec.149(2)(a) and the same is successfully established or proved by the Insurance Company, as per the twin tests laid by the Hon'ble Supreme Court in Swarn Singh, nevertheless, the insurer or Insurance Company is liable to satisfy the award vis-a-vis a third party and is entitled to recover from the insured. This is irrespective of, the policy being an Act policy in terms of Sec.147 pertaining to compulsory coverage of risks of third parties and other classes of persons or a policy covering other risks by specific contract being entered into in that regard and where additional premium is paid by the insured i.e., a contractual policy.
ii) The insurer is liable to pay the third party and recover from the insured even if there is breath of any condition recognized under Sec.149(2), even if it is a fundamental breach (that is breach of condition which is the cause for the accident) and the insurer proves the said breach in view the mandate under Sec.149(1) of the Act. But, no such order can be passed against the insurer, if, on the facts and circumstances of a case, a finding is given by the court that the third party (injured or deceased) had played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss to the insurer.
iii) The Court can also fasten the absolute liability on the insurer, if there is any breach of condition which is enumerated SCCH-24 23 M.V.C.3157/ 2023 under Sec.14992) of the Act or any other condition of the policy if the Insurance Company has waived breach of any such condition or has taken the special responsibility to pay by collecting extra premium by covering any type of risk depending upon facts of each case.
iv) Thus, the rule of pay and recover is applicable in view of the mandate in Sec.149(4) of the Act and even if there is a breach of the terms of the insurance policy, the insurer is bound to satisfy the judgment and award as if it were a judgment debtor, even if it satisfies the twin tests enunciated by the Hon'ble Supreme Court under Sec.149(4)(a) of the Act.
v) Before passing any order on the Insurance Company to pay and recover , the court has to examine the facts and circumstances of each case and if it finds that the victim, injured or the deceased, in a particular case, was solely or jointly responsible for breach of such fundamental condition by playing fraud or in collusion with the insured, the Court may exercise its discretion not to fasten the liability on the insurer.
vi) However, the court should not adopt the above guideline as a general rule in all cases, but only under peculiar facts and circumstances of each case and on giving appropriate reasons.
vii) If the Insurance Company makes out a case under Sec.149(2)(b) of the Act, then also the Insurance Company has to satisfy the award so far as third party is concerned, as it is SCCH-24 24 M.V.C.3157/ 2023 the duty of the Insurance Company to Indemnify the insured on the basis of the policy of the insurance and even when the contract of insurance itself is void, nevertheless the liability to indemnify the insured would arise and insurer is entitled to recover from the insured.
viii) Thus, in a case where Sec.149(2)(b) applies and the Insurance Company successfully establishes that the policy is void, in such a case also, the insurer is not absolved of its liability to satisfy the judgment or award as rights or obligations would flow even from a policy which is void vis-a-vis third party.
In such a case, the insurer is not completely absolved of its liability, the insured would have to satisfy the award vis-a-vis the third party and recover from the insured the amount paid to the third party and may also have a right to seek damages from the insured.
ix) The judgment of the Division of Bench of this Court in Subramanyam, holding that a pay and recovery order cannot be made as there is no liability to pay or satisfy the award or decree in respect of a case falling under Sec.149(2) is not correct. Hence, that portion of the judgment in Subramanyam, which states that if the case falls within the scope of Sec.149(2) of the Act and the insurer is successful in establishing any of the defences as stated therein, it would be completely absolved of its liability to satisfy the award is also not correct and to that extent, it is held to be bad in law.
SCCH-24 25 M.V.C.3157/ 202340. By observing so, the Hon'ble High Court has opined that 'even when there is breach of policy conditions by the insured, the insurer cannot escape the liability to pay the compensation to the claimant-third party in the absence of any fraud on his part'. However, it can recover the same from the insured.
41. Hence even if it is proved that there is violation of the terms and conditions of insurance policy, the pay and recovery could be ordered prior to the amendment to MV Act. But what is the legal position subsequent to the amendment act is to be appreciated.
42. As observed supra, the learned counsel for respondent no 2 has submitted that subsequent to the amendment no pay and recovery can be ordered. Per contra the learned counsel for petitioners submitted that even though accident in question has occurred subsequent to the amendment to MV Act but policy was issued prior to the amendment, hence the provision of MV act earlier to the amendment act would apply in such cases as if this Act has not been amended . The learned counsel for petitioners, at this juncture has referred section 147(4) of MV Act where in it is provided that SCCH-24 26 M.V.C.3157/ 2023 Section 147 (4) : Not withstanding anything contained in this Act, a policy of Insurance issued before the commencement of the Motor Vehicles ( Amendment ) Act 2019 shall be continued on the existing terms under the contract and the provisions of this Act shall apply as if this Act had not been amended by the said Act.
43. Per contra it is vehemently argued by the learned counsel for respondent no 2 that section 147 of MV Act deals with coverage of policy, requirement of policy and limits of policy and that as accident in question has occurred on 19/7/2022 the cause of action arises after 1.4.2022 and that respondent no 2 has disputed only the liability but not the coverage of policy and that the old policy continues even after the amendment but not the liability, hence submitted to apply the provision of amendment Act and to exonerate the insurance company from the liability of paying compensation even the pay and recovery.
44. But if the provision of section 147(4) of MV Act is read it clearly provides that if the insurance policy is issued prior to the Motor Vehicle (Amendment) Act 2019, the provisions of this Act earlier to amendment would apply. Under such circumstances it can be said that even SCCH-24 27 M.V.C.3157/ 2023 if the driver had no valid driving license, while exonerating the insurance company from its liability, the insurance company i.e Respondent no.2 would liable to pay the compensation under pay and recovery by paying compensation to the petitioners and to recover the same from the owner of the offending vehicle i.e from the respondent no 1. Hence respondent no 2 is to pay the compensation and then to recover from the respondent no1. The compensation shall carry interest at the rate of 6 % per annum from the date of petition till the date of deposit. In the result Issue No.2 is answered partly in the Affirmative.
45. Issue No.3 : In the light of finding given on issue No.1 and 2, this court proceeds to pass the following final order :: ORDER ::
The claim petition filed by the petitioners under section 166 of the Motor Vehicles Act is hereby allowed in part with costs.
The petitioners are entitled for total compensation of Rs.5,13,030/- (Rupees Five Lakh Thirteen Thousand Thirty Only) with interest at 6% p.a. from the date of petition till its realization.SCCH-24 28 M.V.C.3157/ 2023
The Respondent No.2 is liable to pay the compensation and is directed to deposit the compensation 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.
Out of the compensation amount, Petitioner No.1 to 3 are equally entitled for Rs.1,71,010/- each.
The entire compensation and interest is ordered to be released in favor of the petitioner no.1 to 3 on proper identification through E- Payment.
Advocate'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 3rd day of October, 2024.) (ROOPASHRI) XXII Addl. SCJ & ACJM Bengaluru.SCCH-24 29 M.V.C.3157/ 2023
:ANNEXURE:
List of witness examined on behalf of petitioners:-
Pw1 - Smt.Pushpalatha List of documents marked on behalf of petitioners:-
Ex.P1 - True copy of FIR Ex.P2 - True copy of Spot mahazar Ex.P3 - True copy of Spot Sketch Ex.P4 - True copy of IMV report Ex.P5 - True copy of Inquest Ex.P6 - True copy of PM report Ex.P7 - True copy of Charge sheet Ex.P8 - Notarized copy of Aadhra card of
deceased, petitioners No.1 to 3 (compared with original and same is returned to the party) Ex.P9 - Bank Statement of deceased Somashekariah List of witness examined on behalf of respondents:-
RW.1 - Naveena S List of documents marked on behalf of respondents:
Ex.R.1 - True copy of policy
Ex.R.2 - Letter to owner with postal Receipts
XXII Addl. SCJ & ACJM
Bengaluru.