Bangalore District Court
Nayaz Pasha vs Udaya Kumar on 30 April, 2024
KABC020225962022
BEFORE THE COURT OF SMALL CAUSES AND
MOTOR ACCIDENT CLAIMS TRIBUNAL, AT
BENGALURU
(SCCH-16)
Present: Sri. Ganapati Bhat,
B.Sc., LL.B. (Spl.). L.L.M.
X Addl. Judge, Court of Small Causes
& Member, MACT, Bengaluru.
MVC No.4098/2022
Dated: 30th April 2024
Petitioners 1. Nayaz Pasha,
S/o Late Husen Sab,
Aged about 58 years,
2. Kalandar Pasha,
S/o Nayaz Pasha,
Aged about 34 years,
3. Baabaa Jaan,
S/o Nayaz Pasha,
Aged about 30 years,
4. Zareena Banu,
D/o Nayaz Pasha,
Aged about 29 years,
5. Irfan Pasha,
S/o Nayaz Pasha,
Aged about 29 years,
All are residing at Shanthinagara,
Doddabelavangala,
Bengaluru Rural - 561 204.
2 (SCCH-16) MVC 4098/2022
(Sri R. Chandra Shekhar,
Advocate)
Vs.
Respondents 1. Udaya Kumar,
Varadanahalli Village,
Veerapura Post,
Doddaballapura Taluk,
Bengaluru Rural District-561 203.
(RC owner of Honda Splender
Plus motorcycle bearing Reg.
No.KA-43-U-5780)
(Exparte)
2. Bajaj Allianz General Insurance
Co. Ltd., Golden Heights,
4th Floor, #1/2, 59th 'C' Cross,
4th 'M' Block, Rajajinagar,
Bengaluru - 560 010.
(Policy No.OG-22-1904-1806-
00017884 valid from 19-08-2021
to 18-08-2022)
(Sri Shwetha V. Yadappanavar,
Advocate)
JUDGMENT
The petitioners have filed this petition under Section 166 of M.V. Act 1989, seeking compensation of Rs.40,00,000/- from the respondents for the accidental death of Mahaboob Jan, who died due to the accident caused by the rider of the two-wheeler vehicle bearing No.KA-43-U-5780.
3 (SCCH-16) MVC 4098/2022
2. The facts in brief stated in the petition are as under;
On 14-10-2021, at about 2.15 p.m., the deceased Mahaboob Jan was proceeding in Honda Deo bearing Chassis No.ME4JF399AHU104522 as a pillion rider. The said vehicle was rode by its rider namely Jabeena from Doddahejjaji towards Khanimata on the extreme left side of Madhure-Khanimata road, slowly. When they reached at Doddahejjaji village, the rider of the two-wheeler vehicle Hero Honda Splendor Plus motorcycle bearing No.KA-43-U-5780 rode it in rash and negligent manner and dashed the two-wheeler of the deceased from its behind. Due to the accident, the deceased and rider fell down and sustained grievous injuries. Immediately after the accident, the deceased was shifted to Doddaballapur Government Hospital and she had taken first aid treatment. Thereafter, she was shifted to NIMHANS, Victoria Hospital and Bowring and Lady Curzon Hospital. Due to non-availability of the ICU bed, she was shifted to Madhu Super Speciality Hospital and Research Institute, Magadi road. On 16-10-2021 at about 5.30 a.m,the 4 (SCCH-16) MVC 4098/2022 doctors declared her as dead. After postmortem, the dead body was handed over to the petitioners. The petitioners have spent Rs.2,00,000/- for her funeral function and transportation of the body. The petitioners have undergone deep mental shock due to sudden death of the deceased. Prior to the accident, deceased was hale and healthy and doing beedi (hand rolled cigarettes) work. She was earning Rs.20,000/- per month. The petitioner No.1 has lost his wife and the petitioners No.2 to 5 have lost their mother. The accident was due to rash and negligent riding of the rider of the Hero Honda Splendor Plus motorcycle bearing No.KA-43-U-5780. The Doddabelavangala Police have filed the charge sheet against the rider of the said vehicle for the offences punishable under Section 279 and 304(A) of IPC. The respondent No.1 is the RC owner and respondent No.2 is the insurer of the offending vehicle. Hence, the respondents are jointly and severally liable to pay the compensation to the petitioners. The petitioners have sought for compensation of Rs.40,00,000/- with interest. They have prayed to allow the petition. 5 (SCCH-16) MVC 4098/2022
3. In response to the notice, the respondent No.2 has appeared through its counsel and filed the written statement. In spite of service of notice, respondent No.1 remained absent, hence, placed as e-xparte.
4. The facts in brief stated in the written statement of the respondent No.2 are as follows;
The respondent No.2 has denied the allegations in the petition. It has stated that the respondent No.1 has taken the liability only policy for two-wheeler vehicle bearing No.KA-43-U-5780. It has further stated that the said insurance policy was valid from 19-08-2021 to 18- 08-2022. It has denied the involvement of the vehicle bearing No.KA-43-U-5780. It has denied the manner of accident stated in the petition. It has stated that the rider of the offending vehicle had no valid driving licence at the time of accident. It has further stated that the respondent No.1 has entrusted the said vehicle to the person having no valid driving licence. Hence, he has violated the terms and conditions of the insurance policy. It has further stated that the respondent No.1 has not furnished the vehicle documents and particulars of the 6 (SCCH-16) MVC 4098/2022 accident, hence, he has violated Section 134(c) of IMV Act. It has further stated that the police have not forwarded the documents, hence, they have not complied Section 158(6) of IMV Act. It has denied the registration of criminal case against the rider of the insured vehicle. It has stated that there was 2 days delay in lodging the complaint. It has denied the rash and negligent riding of the rider of two-wheeler vehicle bearing No.KA-43-U- 5780. It has further stated that the accident was due to rash and negligent riding of the rider of the vehicle in which deceased was proceeding at the time of accident. It has further stated that the rider and the deceased have not worn the helmet at the time of accident. It has further stated that without adding insurer and insured of the Honda Deo motorcycle, the petition is bad for non-joinder of necessary parties. It has denied the age, avocation and income of the deceased. It has stated that the compensation claimed is excessive and exorbitant. It has stated that as per law, the interest on the compensation cannot be more than 6% per annum. It has further stated 7 (SCCH-16) MVC 4098/2022 that petitioners have not furnished their PAN cards and bank details. It has prayed to dismiss the petition.
5. Based on the pleadings the following issues came to be framed:
1. Whether the petitioners prove that deceased Mahaboob Jan succumbed to the injuries sustained in vehicular accident alleged to have been occurred on 14-10-2021, at about 2.15 p.m., due to the rash and negligent riding of the rider of the Hero Honda Splendor Plus Motorcycle bearing registration No.KA-
43-U-5780?
2. Whether the petitioners are entitled to compensation? If so, what is the quantum and from whom?
3. What order or Award?
6. In order to prove their case, the petitioner No.2 himself got examined as PW1 and got marked documents as Ex.P1 to Ex.P11. The Legal Executive of respondent No.2 got examined its as RW1 and got marked documents as Ex.R1 to Ex.R6. 8 (SCCH-16) MVC 4098/2022
7. Heard arguments of learned counsel for the petitioners and learned counsel for the respondent No.2. Perused the pleadings and evidences and materials available on record, my findings on the issues are as under:
Issue No.1 : In the Affirmative Issue No.2 : Partly in the Affirmative Issue No.3 : As per final order for the following REASONS ISSUE No.1:
8. The petitioners have contended that when the deceased was proceeding in Honda Deo motorcycle bearing Chassis No.MR4JF399AHU104522 as a pillion rider, the rider of the Hero Honda Splendor Plus motorcycle bearing No.KA-43-U-5780 rod his vehicle in rash and negligent manner and dashed the two-wheeler vehicle of the deceased from the back side. It is further contended by the petitioners that the deceased was shifted to Doddaballapura Government Hospital and thereafter she was shifted to NIMHANS, Victoria Hospital, Bowring and Lady Curzon Hospital and Madhu 9 (SCCH-16) MVC 4098/2022 Super Speciality Hospital and Research Institute. On 16- 10-2021 at about 5.30 a.m., the doctors have declared her as dead. It is further contended by the petitioners that the accident was due to rash and negligent riding of the rider of the two-wheeler vehicle bearing No.KA-43-U- 5780. They have further contended that the Doddabelavangala Police have registered the criminal case against the rider of the said two-wheeler vehicle bearing No.KA-43-U-5780 for the offences punishable under Section 279 and 304(A) of IPC.
9. In Kusum and Others vs Satbir and Others reported in (2011) SCC 646, the Hon'ble Supreme Court has held that in a case relating to the Motor Accident Claims, the claimants are not required to prove the case as needs required to be done in a criminal trial.
10. In Parameshwari vs. Amir Chand and others reported in (2011) SCC 635, the Hon'ble Supreme Court has held that a road accident claims the strict principle of proof in a criminal case are not required.
10 (SCCH-16) MVC 4098/2022
11. In Bimla Devi and others vs. Himachal Road Transport Corporation and others reported in (2009) 13 SCC 513, the Hon'ble Supreme Court has held that the claimants were merely to establish their case on touch stone of preponderance of probability and that standard of proof on beyond reasonable doubt could not have been applied.
12. In Dulcina Fernandes and others vs. Joaquim Xavier Cruz and another ruling reported in (2013) 10 SCC 6, the Hon'ble Supreme court has held as follows:
"7.It would hardly need a mention that the plea of negligence on the part of the first respondent who was driving the pickup van as set up by the claimants was required to be decided by the learned Tribunal on the touchstone of preponderance of probabilities and certainly not on the basis of proof beyond reasonable doubt."
13. In Anita Sharma and others vs. The New India Assurance Co. Ltd., and another, ruling reported in (2021) 1 SCC 171, the Hon'ble Supreme Court has held as follows:
"Equally, we are concerned over the failure of the High Court to be cognizant 11 (SCCH-16) MVC 4098/2022 of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eyewitnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant's version is more likely than not true."
14. In Gurdeep Singh Vs Bhim Singh ruling reported in (2013) 11 SCC 507, the Hon'ble Supreme Court has held that in the motor accident claims, it is very difficult to get eyewitness. It has further held that even if, the eyewitnesses are available, they are not ready to come and depose in court of law for many reasons and thus, courts have to go by the oath of the claimant only.
15. Therefore, from the above rulings of the Hon'ble Supreme Court, it is clear that the strict proof of the case by the petitioner is not required and in all the MVC cases, the standard of proof required from the 12 (SCCH-16) MVC 4098/2022 petitioner is preponderance of probability. The concept of proof of the case beyond reasonable doubt is not applicable in deciding the MVC cases by the Tribunal.
16. In order to prove their case, the petitioners have produced as many as 11 documents and they are marked as Ex.P1 to Ex.P11. Out of the said documents, Ex.P1 is the FIR, Ex.P2 is the complaint, Ex.P3 is the spot mahazar, Ex.P4 is the sketch, Ex.P5 is the IMV report, Ex.P6 is the inquest, Ex.P7 is the 133 notice, Ex.P8 is the reply, Ex.P9 is the postmortem report, Ex.P10 is the charge sheet and Ex.P11 is the aadhar card. In Ex.P1 and Ex.P2, it is stated that rider of the two-wheeler vehicle bearing No.KA-43-U-5780 rode it in rash and negligent manner and caused the accident. It is further stated that due to the accident, the deceased has fell down from the two-wheeler vehicle and sustained grievous injuries. It is the further stated that the accident was due to rash and negligent riding of the rider of the offending vehicle. It is further stated that the rider of the vehicle of the deceased and deceased fell down and sustained grievous injuries. It is further 13 (SCCH-16) MVC 4098/2022 stated that they have shifted to hospital and the deceased succumbed to injuries in the hospital. In Ex.P3, the accident spot is stated and in Ex.P4, the accident spot is shown. As per Ex.P3 and Ex.P4, the accident spot is in the extreme right side of the offending vehicle. It is stated in the said document that the rider of the offending vehicle took his vehicle on the right side of the road urgently withuot showing any indication and caused the accident. It is further stated that the negligence of the rider of the offending vehicle is prima-facie appear from this document. In Ex.P5, the damages to both the vehicles are stated. As per Ex.P5, the head light glass of the vehicle bearing chassis No.ME4JF399AHU104522 was damaged. The head light mask and both side indicators of the vehicle bearing No.KA-43-U-5780 were damaged. The damages shown in Ex.P5 would tally with the manner of accident. In Ex.P6 and Ex.P9, the injuries to the deceased are stated. In Ex.P9, the doctor who has conducted the postmortem has opined that the cause of the death is due to infra cerebral hemorrhage, leading to herniation of brain and 14 (SCCH-16) MVC 4098/2022 respiratory arrest. It is stated that the owner of the offending vehicle has replied the notice under Section 133 of IMV Act as per Ex.P8. He has admitted the presence of his vehicle and the accident. He has stated that he was riding the vehicle at the time of accident. He has admitted that he has no valid driving licence to rode the two-wheeler vehicle. After investigation in the criminal case, the police have filed the charge sheet as per Ex.P10. In Ex.P10, it is stated that when the deceased and the rider of the Honda Deo vehicle bearing No.KA-04-JH-5458 was riding his two-wheeler vehicle slowly and cautiously on Khaninata near Doddabelavangala, the rider of the Hero Honda Splendor Plus motorcycle bearing No.KA-43-U-5780 rode his vehicle in rash and negligent manner and dashed the two-wheeler vehicle of the deceased. Due to the accident, the deceased and wife of the petitioner No.2 fell down and sustained grievous injuries. The rider and the deceased were admitted to the hospital. The deceased succumbed to the injuries in the hospital. It is further stated that the rider of the offending vehicle has 15 (SCCH-16) MVC 4098/2022 no valid driving licence at the time of accident. It is further stated that the accused No.3 has seized the said vehicle and he has sold the same to the accused No.4 and accused No.4 has sold it to accused No.5. Therefore, the police have filed the charge sheet against the rider of the two-wheeler vehicle for the offences punishable under Section 279 and 304(A) of IPC and 181 and 187 of IMV Act. They alleged the offences punishable under Section 50, 177 and 180 of IMVAct against the accused No.2 and 5. In all the documents it is stated that the accident was due to rash and negligent riding of the rider of the two-wheeler vehicle bearing No.KA-43-U- 5780.
17. The petitioner No.2 has entered into the witness box and got examined as PW1. He has re- iterated the contents of the petition in his examination- in-chief. In the cross-examination, he has denied the suggestion that the vehicle in which deceased was traveling was not having number plate and the rider of the said vehicle has no valid driving licence. He has denied the suggestion that the accident was not due to 16 (SCCH-16) MVC 4098/2022 rash and negligent riding of the rider of the offending vehicle. He has further denied the suggestion that his mother had not wore the helmet at the time of accident.
18. The official of respondent No.2 got examined as RW1. He has re-iterated the contents of the written statement of respondent No.2 in her examination-in- chief. She has stated that she has read over the contents of the police records. The respondent No.2 has not produced any independent investigation report to show the absence of rash and negligent riding of the rider of the offending vehicle. There is no contrary material to the evidence produced by the petitioners regarding the rash and negligent riding of the rider of the offending vehicle is available in this case. The version of the petitioners regarding the rash and negligent riding of the rider of the offending vehicle is not contradicted by the respondents. The petitioners have produced the documentary evidence and adduced the oral evidence to substantiate their contentions. From the documentary and oral evidence, petitioners have proved that the accident was due to rash and negligent 17 (SCCH-16) MVC 4098/2022 riding of the rider of the two-wheeler vehicle bearing No.KA-43-U-5780. The petitioners have further proved that deceased has succumbed injuries due to the accident. Hence, I answer issue No.1 in the affirmative.
ISSUE No.2:
19. As discussed above, the petitioners have shown that the vehicle of the respondent No.1 has caused the accident and the accident is due to rash and negligent driving of the offending vehicle by its driver.
The respondent No.2 is the insurance company of the vehicle of the respondent No.1. The petitioners have produced their Aadhar cards and Aadhar card of the deceased to show their relationship with the deceased. From these documents, it is clear that the petitioner No.1 is the husband and the petitioners No.2 to 4 are the sons and daughter of the deceased. Hence, the petitioners are legal representatives of the deceased. Since the petitioners are the legal representatives of the deceased, they are entitled to the compensation.
The learned counsel for the respondent No.2 has relied on the Judgment of the Hon'ble High court of Karnataka In the case of A Manvalagan Vs A 18 (SCCH-16) MVC 4098/2022 Krihnamurty ruling reported in ILR 2004 KAR 3268.In the said ruling the Hon'ble High Court of has held that when the petitioners are not dependent on the deceased, then the compensation cannot be granted under the head of loss of dependency but under the head of loss of estate. In the later rulings, the Hon'ble Supreme Court has held as follows.
In the case of National Insurance Co. vs. Birender ruling reported in (2020) 11 SCC 356, the Hon'ble Supreme Court has held as follows:
"12. The legal representatives of the deceased could move application for compensation by virtue of clause (c) of Section 166(1). The major married son who is also earning and not fully dependant on the deceased, would be still covered by the expression "legal representative" of the deceased. This Court in Manjuri Bera (supra) had expounded that liability to pay compensation under the Act does not cease because of absence of dependency of the concerned legal representative.
Notably, the expression "legal representative" has not been defined in the Act. In Manjuri Bera (supra), the Court observed thus:
"9. In terms of clause (c) of subsection (1) of Section 166 of the Act in case of death, all or any of the legal representatives of the deceased become entitled to compensation and
19 (SCCH-16) MVC 4098/2022 any such legal representative can file a claim petition. The proviso to said subsection makes the position clear that where all the legal representatives had not joined, then application can be made on behalf of the legal representatives of the deceased by impleading those legal representatives as respondents.
Therefore, the High Court was justified in its view that the appellant could maintain a claim petition in terms of Section 166 of the Act.
10. .....The Tribunal has a duty to make an award, determine the amount of compensation which is just and proper and specify the person or persons to whom such compensation would be paid. The latter part relates to the entitlement of compensation by a person who claims for the same.
11. According to Section 2(11) CPC, "legal representative" means a person who in law represents the Tractor and Trally bearing No.AP-03- AN-8690 & AP-03-AN-8712 estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.
Almost in similar terms is the definition of legal representative under the Arbitration and Conciliation Act, 1996 i.e. under Section 2(1)(g)
12. As observed by this Court in Custodian of Branches of BANCO National Ultramarino vs. Nalini Bai 20 (SCCH-16) MVC 4098/2022 Naique [1989 Supp (2) SCC 275 the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead it stipulates that a person who may or may not be legal heir competent to inherit the property of the deceased can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression "legal representative". As observed in Gujarat SRTC vs. Ramanbhai Prabhatbhai [(1987) 3 SCC 234 a legal representative is one who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child.
13. In Manjuri Bera (supra), in paragraph 15 of the said decision, while adverting to the provisions of Section 140 of the Act, the Court observed that even if there is no loss of dependency, the claimant, if he was a legal representative, will be entitled to compensation. In the concurring judgment of Justice S.H. Kapadia, as His Lordship then was, it is observed that there is distinction between "right to apply for compensation" and "entitlement to compensation". The compensation constitutes part of the estate of the deceased. As a result, the legal representative of the deceased would inherit the estate. Indeed, in that case, the Court was dealing with the case of a 21 (SCCH-16) MVC 4098/2022 married daughter of the deceased and the efficacy of Section 140 of the Act. Nevertheless, the principle underlying the exposition in this decision would clearly come to the aid of the respondent Nos. 1 and 2 (claimants) even though they are major sons of the deceased and also earning.
14. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependent on the deceased and not to limit the claim towards conventional heads only." According to the ratio laid down in this ruling, the legal representatives though not fully dependent on the deceased are entitled to claim compensation under all the heads i.e., under both conventional and non- conventional heads. The total compensation is to be calculated in the following manner:
The compensation towards loss of dependency : The petitioner No.1 is the husband and the petitioners No.2 to 4 are the sons and daughter of the deceased Mahaboob Jan. The petitioners have 22 (SCCH-16) MVC 4098/2022 stated that they were depending upon the deceased. They have shown that they are legal representatives of the deceased, hence, they are entitled to compensation under the head of loss of dependency. In order to calculate the loss of dependency, the first step is to determine the age and income of the deceased.
The determination of age and income of the deceased : The petitioners have stated that the age of the deceased as on the date of accident is 49 years. To substantiate this point, the petitioners have produced the copy of the Aadhar Card of the deceased, wherein the date of birth of the deceased is mentioned as 01-01- 1972. Admittedly, the accident took place on 14-10- 2021. Therefore, as on the date of accident the age of the deceased was about 49 years.
The petitioners have stated that the deceased was doing beedi (hand rolled cigarettes) work and she was having monthly income of Rs.20,000/-. The petitioners have not produced any documents to show the income of the deceased. Therefore, the notional income is to be considered as income of the deceased as per the 23 (SCCH-16) MVC 4098/2022 guidelines of the Karnataka State Legal Services Authority.
In G.T. Basavaraj vs. Niranjan and another in MFA No.7781/2016 judgment dated 11-08-2022, in Ramanna and another vs. Y.B. Mahesh and another in MFA No.140/2017 judgment dated 16- 01-2020, in New India Assurance Co. Ltd., vs. Anusaya and others in MFA No.101195/2014 judgment dated 05-01-2023, the Hon'ble High Court of Karnataka has held that when the income is not proved, then the notional income of the deceased as per the guidelines issued by Karnataka State Legal Services Authority is to be adopted as the income of the deceased. The accident took place in the year 2021. Therefore, the notional income is to be treated as Rs.15,000/- per month. Therefore, his annual income would be Rs.1,80,000/-.
As per the ratio laid down in the ruling of National Insurance Co. Ltd. vs. Pranay Sethi and others, reported in (2017) 16 SCC 680, the deceased is also entitled to future prospects though he is not a 24 (SCCH-16) MVC 4098/2022 permanent employee. Since the deceased is aged about 49 years and not a permanent employee, the future prospects would be 25% of her income. Therefore, 25% of Rs.1,80,000/- comes to Rs.45,000/-. Therefore, the future prospects of the deceased comes about Rs.45,000/-. If this income is added to the notional income, then it comes about Rs.2,25,000/-. This income is within the limits of the exemption limit under the Income Tax Act.
The deduction of personal expenses and calculating the multiplicand : The family of the deceased consist of 5 persons i.e., petitioners No.1 to 5. Therefore, the number of the dependents is 5. Therefore, deduction towards the personal expenses comes about 1/4th of the total income i.e., Rs.56,250/-. Therefore, the multiplicand is as follows:
Rs.2,25,000/- - Rs.56,250/- = Rs.1,68,750/- is the contribution towards the family/multiplicand.
Ascertaining the multiplier : The appropriate multiplier should be applied as per the decision of the Hon'ble Supreme Court in Sarla Verma and others 25 (SCCH-16) MVC 4098/2022 vs. Delhi Transport Corporation and another reported in 2009 ACJ 1298. The age of the deceased is found as 49 years. Therefore, the appropriate multiplier is 13.
Therefore, the compensation under the head of loss of dependency is calculated as follows :
The age of the deceased is 49 years, number of dependents are 5, the notional income + future prospects is Rs.2,25,000/- per annum. Multiplicand is Rs.1,68,750/-, multiplier is 13. Therefore, the compensation to the petitioners under the head of loss of dependency is Rs.21,93,750/-. Hence, an amount of Rs.21,93,750/- is awarded to the petitioners towards loss of dependency.
Compensation under conventional heads : As per the judgment of the National Insurance Co. Ltd.
vs. Pranay Sethi and others reported in (2017) 16 SCC 680, following conventional heads they are permissible.
1) Loss of estate Rs.15,000/-
2) Loss of consortium Rs.40,000/-
26 (SCCH-16) MVC 4098/2022
3) Funeral expenses Rs.15,000/-
Six years have been lapsed from the date of the judgment. Therefore, 20% is to be increased on this amount. Therefore, the loss of consortium comes about Rs.48,000/-, funeral expenses comes about Rs.18,000/- and loss of estate comes about Rs.18,000/-.
In Magma General Insurance Co.
Ltd vs Nanu Ram Alias Chuhru Ram and others ruling reported in (2018) 18 SCC 130, the Hon'ble Supreme Court has held as follows:
"21. A Constitution Bench of this court in Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680: (2018) 3 SCC (Civ) 248: (2018) 2 SCC (Cri) 205] dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is loss of consortium. In legal parlance, "consortium" is a compendious term which encompasses "spousal consortium", "parental consortium", and "filial consortium". The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse:
[Rajesh v. Rajbir Singh, (2013) 9 SCC 54 (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] 27 (SCCH-16) MVC 4098/2022 21.1. Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of "company, society, cooperation, affection, and aid of the other in every conjugal relation":
(Black's Law Dictionary (5th Edn., 1979).
21.2. Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training".
21.3. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.
22. Consortium is a special prism reflecting changing norms about the status and worth of actual relationships.
Modern jurisdictions world-over have recognised that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.
As per the ratio laid down in this case, the consortium is to be given under 3 heads i.e., spousal 28 (SCCH-16) MVC 4098/2022 consortium, parental consortium and filial consortium. Therefore, the petitioners No.1 to 5 are entitled to Rs.48,000/- each towards spousal and parental consortium.
20. The details of compensation proposed to be awarded are as under:
Sl. Head of
Amount/Rs
No. Compensation
1. Loss of dependency Rs. 21,93,750-00
2. Loss of spousal and Rs. 2,40,000-00
parental consortium
3. Loss of estate Rs. 18,000-00
4. Funeral expenses Rs. 18,000-00
Total Rs. 24,69,750-00
21. In all, petitioners are entitled for compensation of Rs.24,69,750/- with interest at the rate of 6% per annum from the date of petition till its realization.
Liability:
22. The respondent No.1 is the owner and respondent No.2 is the insurer of the offending vehicle. The respondent No.2 has admitted the insurance policy to the offending vehicle as on the date of accident. The respondent No.2 has stated that the rider of the 29 (SCCH-16) MVC 4098/2022 offending vehicle has no valid driving licence as on the date of accident. In the charge sheet, it is stated that the rider of two wheeler of the car bearing No.KA-43-U- 5780 has no valid driving licence as on the date of the accident. A defence of the respondent No.2 is that since the driver of the offending vehicle has no valid driving licence, hence the insurance company is not liable to pay any compensation. The advocate for petitioner has relied on judgment of the Hon'ble Supreme Court in Shamanna and another vs. Divisional Manager, Oriental Insurance Co. Ltd., and others ruling reported in (2018) 9 SCC 650. Advocate for Respondent No.2 has relied upon rulings as follows:
1)National Insurance Co. Ltd vs Swarna Singh, ruling reported in AIR 2004 SC 3268, 2) Pappu vs Vinodkumar ruling reported in (2018)3 SCC 208,
3) The Oriental Insurance Co. Ltd vs Annemma, ruling reported in 2019 ACJ 409, 4) Beli Ram vs Rajinder Kumar, ruling reported in AIR 2020 SC 4453, 5) Padma vs Ramanjali, MFA No.100226/2016,6) Reliance Genaral Insurance
30 (SCCH-16) MVC 4098/2022 Co. Ltd vs Arjun Dattatreaya, MFA No.22781/2012and 7) Adilakshmamma vs Raju, MFA 3297/2019.Out of the said rulings, in the rulings relied by the Advocate for Respondent No.2 ,ie in
1)National Insurance Co.ltd vs Swarna Singh, ruling reported in AIR 2004 SC 3268, 2) Pappu vs Vinodkumar ruling reported in (2018)3 SCC 208, 3) The Oriental Insurance Co.ltd vs Annemma, ruling reported in 2019 ACJ 409,5) Padma vs Ramanjali, MFA No.100226/2016,the Hon'ble Supreme Court and the Hon'ble High Court have held that when there is no valid driving licence to the driver of the offending vehicle, then the principle of pay and recovery is to applied. In the rulings relied by the Advocate for Respondent No.2 i.e., in 4) Beli Ram vs Rajinder Kumar, ruling reported in AIR 2020 SC 44536) Reliance Genaral Insurance Co.ltd vs Arjun Dattatreaya, MFA No.22781/2012and 7) Adilakshmamma vs Raju, MFA 3297/2019, the Hon'ble Supreme Court and the Hon'ble High Court have held that when there is no valid driving licence to the driver of the offending vehicle, then insurance company is 31 (SCCH-16) MVC 4098/2022 liable to pay compensation. But the rulings relevant to the above principle are discussed as follows.
23. In New India Assurance Company Limited, Bijapur, vs. Yallavva w/o. Yamanappa Dharanakeri and another ruling reported in ILR 2020 KAR 2239, the full bench of Hon'ble High Court of Karnataka referring to the catena of decisions rendered by the Hon'ble Apex Court has held that breach of policy conditions would not exonerate the Insurance Company to pay the compensation. It has held that even if fundamental breach of policy conditions is established, the Insurance Company is still liable to satisfy the award by paying the compensation to the third party and thereafter, it can recover it from the owner of the vehicle involved in the accident. It has held that the pay and recovery cannot be ordered against the insurance company only when the claim petition filed is a fraudulent and collusive petition.
24. In United India Insurance Co. vs. V. Janardhan ruling reported in 2021 SCC Online KAR 32 (SCCH-16) MVC 4098/2022 12643, the Hon'ble High Court of Karnataka has held as follows:
"It would be irrelevant as to whether the owner of the vehicle appear or did not appear or did not contest or contested the proceedings for applying the pay and recovery principle. So long as it is established that there was an insurance policy issued in respect of motor vehicle which was involved in the accident, the insurer would be liable to pay the victim, even if the insurer is able to establish its defence that there has been a breach of policy condition and it can avoid liability".
25. In Shivanna vs. Muniyappa ruling reported in 2022 SCC Online KAR 16660, the Hon'ble High Court of Karnataka has held that the insurer would have to satisfy the compensation i.e., liable to be paid to the claimants and thereafter to proceed to recover the same from the owner of the offending vehicle.
26. In Balu Krishna Chavan vs. Reliance General Insurance Co. Ltd., 2022 Live Law (SC) 932, judgment dated 03-11-2022, the Hon'ble Supreme Court has held that when the insurance policy is in force then even if the insurer is able to show the 33 (SCCH-16) MVC 4098/2022 breach of policy condition and it can avoid the liability then also it is liable to pay the victim and recover from the owner of the offending vehicle.
27. In Pappu and others vs. Vinod Kumar Lamba and another ruling reported in (2018) 3 SCC 208, the Hon'ble Supreme Court has held as follows:
"110. The summary of our findings to the various issues as raised in these petitions areas follows:
(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.
(ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163Aor Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said Act.
(iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to reproved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for 34 (SCCH-16) MVC 4098/2022 driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured,the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them.
(v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case.
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to 35 (SCCH-16) MVC 4098/2022 allow defences available to the insured under Section 149(2) of the Act.
(vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), doesn't fulfill the requirements of law or not will have to be determined in each case.
(viii) - (ix) xxxxx
(x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to payto the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section(3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal.
(xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies 36 (SCCH-16) MVC 4098/2022 mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims."
28. In Shamanna and another vs. Divisional Manager, Oriental Insurance Co. Ltd., and others ruling reported in (2018) 9 SCC 650, the Hon'ble Supreme Court of India has held as follows:
"12. Since the reference to the larger bench in Parvathneni case has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently the decision in Swaran Singh case followed in Laxmi Narain Dhut and other cases hold the field. The award passed by the Tribunal directing the insurance company to pay the compensation amount awarded to the claimants and thereafter, recover the same from the owner of the vehicle in question, is in accordance with the judgment passed by this Court in Swaran Singh and Laxmi Narain Dhut cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the owner of the vehicle. The impugned judgment of the High Court exonerating 37 (SCCH-16) MVC 4098/2022 the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside and the award passed by the Tribunal is restored".
29. In Kurvan Ansari @ Kurvan Ali vs. Shyam Kishore Murmu, ruling reported in (2022) 1 SCC 317, the Hon'ble Supreme Court of India has held as follows:
"The entire compensation shall be paid to the appellants by respondent No.2
- Insurance Company, and we keep it open to the Insurance Company to recover the same from respondent No.1 - owner of the motorcycle by initiating appropriate proceedings as the motorcycle was driven by the driver who was not possessing valid driving licence on the date of the accident".
30. In IFFCO Tokio General Insurance Co. Ltd., vs. Geeta Devi and others ruling reported 2023 SCC OnLine SC 1398 the Hon'ble Supreme Court has held as follows:
"even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or 38 (SCCH-16) MVC 4098/2022 breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident".
31. The respondent No.1 has not produced any documents to show that there is valid and effective driving licence to the driver of his vehicle as on the date of accident. Further, the charge sheet which is marked as Ex.P10 would show that there was no valid licence to the driver of the offending vehicle as on the date of accident. Therefore, from the materials available on record, it is clear that the driver of the offending vehicle has no valid driving licence as on the date of accident. Therefore, the respondent No.1 has violated the terms and conditions of the insurance policy. The insurance policy is valid as on the date of accident. This fact is admitted by the respondent No.2. Therefore, the respondent No.2 i.e., insurance company is primarily liable to pay the compensation along with respondent No.1. Since there is violation of the terms and conditions of the policy, the respondent No.2 is entitled to recover the compensation amount from the respondent No.1 39 (SCCH-16) MVC 4098/2022 after pay the amount to the petitioners. Hence, the respondent No.1 and 2 both are jointly and severally liable to pay the compensation amount to the petitioners. But, the respondent No.2 is entitled to recover the compensation amount to be paid to the petitioners after paying it to them from the respondent No.1 on pay and recovery basis.
32. As discussed above, the petitioners have shown that the two-wheeler vehicle bearing No.KA-43-U- 5780 has caused the accident to the wife of the petitioner No.1 and the accident was due to negligent riding of the offending vehicle by the rider of the said vehicle. They have further shown that they are entitled to total compensation of Rs.24,69,750/-. They have further shown that the insurance to the said vehicle was in force as on the date of accident. Therefore, the respondent No.1 and 2 are jointly and severally liable to pay the compensation. Hence, I answer issue No.2 partly in the affirmative.
ISSUE No.3:
33. In view of the findings, the petition deserves to be allowed in part. Hence, the following order is passed:
40 (SCCH-16) MVC 4098/2022 ORDER The petition is partly allowed with costs.
The petitioners are entitled to compensation of Rs.24,69,750/- (Rupees twenty four lakhs, sixty nine thousand, seven hundred and fifty only) with interest at the rate of 6% p.a., from the date of petition till realisation.
The respondent No.2 is directed to pay the compensation amount on pay and recovery basis to the petitioners within two months from the date of this order in the first instance and then recover the same from respondent No.1 through due course of action.
Compensation amount is
apportioned as follows:-
Petitioner No.1 - Husband 40%
Petitioner No.2 - Son 15%
Petitioner No.3 - Son 15%
Petitioner No.4 - Daughter 15%
Petitioner No.5 - Son 15%
Out of the compensation amount
awarded to petitioners No.1 to 5, 30% of the compensation amount with proportionate interest shall be 41 (SCCH-16) MVC 4098/2022 deposited in their names as FD in any nationalized bank for the period of two years with liberty to draw the accrued interest periodically and the remaining 70% amount with proportionate interest shall be released to them through E- payment on proper identification and verification.
Advocate's fee is fixed at Rs.2,000/-. Draw an award accordingly.
(Dictated to the stenographer, directly on computer, typed by him, corrected and then pronounced in the open court this the 30th day of April 2024) (Ganapati Bhat) Member, MACT, Bengaluru.
ANNEXURE Witnesses examined on behalf of petitioners:
PW1 Sri Kalandar Pasha Documents marked on behalf of petitioners:
Ex.P1 True copy of FIR
Ex.P2 True copy of Complaint
Ex.P3 True copy of Spot Mahazar
Ex.P4 True copy of Sketch
Ex.P5 True copy of IMV Report
Ex.P6 True copy of Inquest
Ex.P7 True copy of 133 Notice
Ex.P8 True copy of Reply
Ex.P9 True copy of Postmortem Report
Ex.P10 True copy of Charge Sheet
Ex.P11 Notarized copy of Aadhar Cards (6 in
nos.)
42 (SCCH-16) MVC 4098/2022
Witnesses examined on behalf of respondents:
RW1 Smt. Vaishnavi Inamdar Documents marked on behalf of the respondents:
Ex.R1 Authorization Letter Ex.R2 Certified copy of Policy Ex.R3 Letter dated 18-08-2022 Ex.R4 Acknowledgment Letter Ex.R5 Certified copy of Section 133 Notice Ex.R6 Certified copy of Reply (Ganapati Bhat) Member, MACT, Bengaluru.