Bangalore District Court
Hanumavva vs Hasanna Sab on 28 February, 2024
KABC020088752022
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.1514/2022
Dated: 28th February 2024
Petitioners 1. Hanumavva,
D/o Govindappa,
Aged about 16 years,
2. Kalakappa,
S/o Govindappa,
Aged about 10 years,
Both are residents of
Malkapura Village,
Adavibhavi Post, Kushtagi Taluk,
Koppal District.
Petitioners being minors
represented by their
uncle/mother's brother
Bheemappa,
S/o Phakirappa,
Aged about 28 years,
R/o Tonasinala, Adavibhavi Post,
Kushtagi Taluk, Koppal District.
Presently residing at
Chakasanahalli Village,
2 (SCCH-16) MVC 1514/2022
Narasapura Hobli,
Kolar Taluk and District.
(Sri Harisha S.K., Advocate)
Vs.
Respondents 1. Hasanna Sab,
S/o Bade Sab,
#289, Near Shanimahathma
Temple, Devara Beesanahalli,
Bengaluru - 560 103.
(RC owner of Honda CB 125 Shine
Motorcycle bearing No.KA-51-ET-
8432)
(Exparte)
2. United India Insurance Co. Ltd.,
Regional Office, T.P.Hub,
5th & 6th Floors, Krishi Bhavan,
Hudson Circle, Opp. BBMP Head
Office, Nrupathunga Road,
Bengaluru - 560 001.
(Insurer of Honda CB 125 Shine
Motorcycle bearing No.KA-51-ET-
8432)
Policy
No.2402823119P105290250
valid from 25-07-2019 to
24-07-2020
(Sri R.S. Srikanta Reddy,
Advocate)
3. Govindappa,
S/o Kalakappa,
Aged about 41 years,
R/at Malkapura Village,
Adavibhavi Post, Kushtagi Taluk,
Koppal District.
(Husband of the deceased)
(Exparte)
3 (SCCH-16) MVC 1514/2022
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 Yamanavva, who died due to the accident caused by the rider of the motorcycle bearing No.KA-51- ET-8432.
2. The facts in brief stated in the petition are as under;
The petitioners Nos.1 and 2 are the daughter and son of the deceased and they are represented by their mother's brother. The respondent No.3 is the husband of the deceased. On 10-05-2020 at about 2.40 p.m., the deceased was proceeding as pillion rider on the motorcycle bearing No.KA-51-ET-8432. The rider of the said motorcycle was one Hanumanth. He was riding the motorcycle on the outer ring road from Devara Beesanahalli towards Marathahalli bridge in rash and negligent with high speed. When they reached near Marathahalli Multiplex, the rider of the motorcycle applied the brake suddenly. Due to that act, the deceased fell down from the vehicle and sustained grievous head 4 (SCCH-16) MVC 1514/2022 injuries and bodily injuries. Immediately after the accident, she was shifted to Sakra Hospital. In the said hospital, the doctors have declared deceased as brought dead. After postmortem, her body was handed over to the family members of the petitioners. They have performed the funeral function and incurred Rs.1,00,000/- towards transportation of body and funeral ceremony. At the time of accident, the deceased was hale and healthy and aged about 39 years. She was working as building construction labour. Due to the death of the deceased, the petitioners have lost their mother and earning member of the family. They have undergone mental shock and agony. The accident was due to rash and negligent riding of the motorcycle bearing No.KA-51-ET- 8432. The Airport Traffic Police have registered the criminal case and filed the charge sheet against the rider of the motorcycle 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 said motorcycle. The respondent No.3 is the husband of the deceased. The respondent No.1 and 2 are jointly and 5 (SCCH-16) MVC 1514/2022 severally liable to pay the compensation. The petitioners have sought for compensation of Rs.40,00,000/- with interest at the rate of 12% per annum. They have prayed to allow the petition.
3. In response to the notice, the respondent No.2 appeared through its counsel and filed the written statement. In spite of service of notice, the respondent No.1 remained absent, hence, placed as exparte.
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 denied the age, income and avocation of the deceased. It has stated that apart from the Section 279 and 304(A) of IPC, the police have filed the charge sheet under Section 3(1) r/w 181 and Section 5 r/w 180 of IMV Act against the rider and owner of the said offending vehicle for the rider not having valid driving licence at the time of accident. It has stated that the respondent No.1 has entrusted the two-wheeler vehicle to the Hanumanth who has no valid driving licence at the time of accident. Hence, the respondent No.1 has violated the 6 (SCCH-16) MVC 1514/2022 terms and conditions of the policy. It has stated that the motorcycle was having valid insurance policy at the time of accident, but the said liability subject to terms and conditions of the policy. It has further stated that the respondent No.1 has violated the terms and conditions of the policy. Hence it is not liable to pay compensation to the petitioners. It has further stated that the respondent No.1 has not furnished the vehicle documents and particulars of accident in compliance of Section 134(c) of IMV Act. He has further stated that the police have not forwarded the documents to it in compliance of Section 158(6) of IMV Act. It has denied the manner of accident stated in the petition. It has stated that the deceased herself fell down and she sustained injuries due to her negligence. It has stated that the rider of the two-wheeler was not liable to pay compensation. It has stated that the compensation claimed is excessive and highly exaggerated. Hence, it has prayed to dismiss the petition.
5. Based on the pleadings the following issues came to be framed:
7 (SCCH-16) MVC 1514/2022
1. Whether the petitioners prove that deceased Yamanavva succumbed to the injuries sustained in vehicular accident alleged to have been occurred on 10-05-
2020 at about 2.40 p.m., due to the rash and negligent riding of the rider of the motorcycle bearing No.KA-51-ET-8432?
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 petitioners have got examined their natural guardian as PW1 and got marked documents as Ex.P1 to Ex.P9. The Respondent No.2 got examined its official as RW1 and got marked documents as Ex.R1 to Ex.R6.
7. Heard arguments of learned counsel for petitioners and learned counsel for the respondent No.2. The learned counsel for the petitioners has relied on the following rulings. (1) (2018) 3 SCC 208, in the case of Pappu and others vs. Vinod Kumar Lamba and another, (2) (2018) 9 SCC 650, in the case of Shamanna and 8 (SCCH-16) MVC 1514/2022 another vs. Divisional Manager, Oriental Insurance Co. Ltd., and others, (3) Civil Appeal No.6902/2021 in the case of Kurvan Ansari alias Kurvan Ali and another vs. Shyam Kishore Murmu and another. The learned counsel for the respondent No.2 has relied on the following rulings. (1) ILR 2023 KAR 459 in the case of Gohar Mohammed vs. UPSRTC and others, (2) MFA No.6154/2019 (MV-D) in the case of Hemalatha @ Hema @ Hemavathi and others vs. Bajaj Allianz General Insurance Co. Ltd., and another, (3) MFA No.4716/2011 (MV) in the case of the United India Insurance Co. Ltd., vs. Umamaheshwari @ Umadevi and others, (4) MFA No.23290/2012 (MV) in the case of The Branch Manager, Cholamandalam MS General Insurance Co. Ltd., vs. Tulasawwa and others. Perused the pleadings and evidences, on the basis, findings on the issues are as under:
Issue No.1 : In the Affirmative Issue No.2 : Partly in the Affirmative Issue No.3 : As per final order for the following
9 (SCCH-16) MVC 1514/2022 REASONS ISSUE No.1:
8. The petitioners have stated that the rider of the motorcycle bearing No.KA-51-ET-8432 in which the deceased was pillion rider was riding the vehicle in rash and negligent manner. It is the further case of the petitioners that due to the rash and negligent riding of the said two-wheeler, the deceased fell down from the motorcycle and sustained grievous injuries. They have further contended that the deceased succumbed to the injuries on the way to the hospital. They have further stated that the accident was due to sole negligence of the rider of the offending vehicle. It is the further contention of the petitioners that the Airport Traffic Police have registered criminal case against the rider of the offending vehicle and filed the charge sheet against the said rider 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 10 (SCCH-16) MVC 1514/2022 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.
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 11 (SCCH-16) MVC 1514/2022 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 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, 12 (SCCH-16) MVC 1514/2022 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 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 9 documents and they are marked as Ex.P1 to Ex.P9. 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 inquest, Ex.P6 is the postmortem report, Ex.P7 is the MVA report, Ex.P8 is the charge sheet and Ex.P9 is the aadhar cards. In Ex.P1 and Ex.P2, it is stated that the rider of the two- wheeler vehicle bearing No.KA-51-ET-8432 was riding the said vehicle in rash and negligent manner. It is further stated that he rode the vehicle in very speed 13 (SCCH-16) MVC 1514/2022 manner and applied the brake, suddenly. It is further stated that due to the said act of the rider of the two- wheeler, the deceased fell down from the vehicle and sustained head injuries. It is further stated that she has succumbed to the injuries on the way to the hospital. In Ex.P3, the accident spot is narrated. In Ex.P4, the accident spot is shown. As per Ex.P4, the accident took place in the middle of the road. In Ex.P5 and Ex.P6, the injuries to the deceased are mentioned. In Ex.P6, the doctor who has conducted the postmortem has opined that the death was due to shock and haemorrhage as a result of injuries sustained. In Ex.P7, the damages to the offending vehicle is shown. As per Ex.P7, front LH clutch lever of the offending vehicle was damaged. The damages shown in this document tally with the manner of accident stated in the petition. As per Ex.P8, the police have filed the charge sheet against the rider of the two-wheeler vehicle bearing No.KA-51-ET-8432 for the offences punishable under Section 279 and 304(A) of IPC. They have further alleged the offences punishable under Section 3(1) r/w 181 and Section 5 r/w 14 (SCCH-16) MVC 1514/2022 180 of IMV Act against the rider for not having the valid driving licence at the time of accident and owner for entrusting the vehicle to the said rider who did not possess the valid driving licence. In Ex.P8, it is stated that the rider of the two-wheeler vehicle was riding the said vehicle in rash and negligent manner at the time of accident. It is further stated that at the time of accident, he has suddenly applied the brake to the said vehicle. It is further stated that due to the sudden application of the brake, the deceased fell down and sustained injuries. It is further stated that the deceased succumbed to the injuries on the way to the hospital. It is stated in the said document that the accident was due to rash and negligent riding of the two-wheeler vehicle by its rider. It is relevant to note that the rider of the offending vehicle had no valid driving licence at the time of accident. In all the documents produced by the petitioners, it is stated that the rider of the two-wheeler vehicle was negligent at the time of accident and he has caused the accident.
15 (SCCH-16) MVC 1514/2022
17. The next friend of the petitioners 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 of PW1, the counsel for respondent No.2 has suggested that the deceased was the pillion rider of the said motorcycle at the time of accident. He has denied the suggestion that the deceased fell down from the two-wheeler vehicle not due to the accident, but her fall was a self fall. The official of the respondent No.2 got examined as RW1. He has admitted the insurance policy to the offending vehicle at the time of accident. He has admitted that his evidence is based on police documents and other documents. He has admitted that the charge sheet is filed against the rider of the offending vehicle. Therefore, there is no contrary material available to the documentary evidence produced by the petitioners regarding the fact of rash and negligent riding of the offending vehicle by its rider. In all the documents produced by the petitioners, it is stated that the rider of the two-wheeler vehicle bearing No.KA-51-ET-8432 16 (SCCH-16) MVC 1514/2022 caused the accident by riding it in rash and negligent manner. Therefore, there is no material available to disbelieve the version of the petitioners. From the documentary and oral evidence, the petitioners have proved that the accident was due to rash and negligent riding of the rider of the two-wheeler vehicle bearing No.KA-51-ET-8432. They have further proved that due to the accident, the petitioner sustained injuries and succumbed to the injuries. Hence, I answer issue No.1 in the affirmative.
ISSUE No.2:
18. 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 or negligent riding of the rider of the offending vehicle. The respondent No.2 is the insurance company of the vehicle of the respondent No.1. The petitioners have produced their Aadhar cards and the Aadhar card of the deceased to show their relationship with the deceased.
From these documents, it is clear that next friend of the petitioners is the brother of their mother and the 17 (SCCH-16) MVC 1514/2022 petitioners No.1 and 2 are the daughter and son of the deceased. The respondent No.3 is shown as the husband of the deceased but he has filed the affidavit dated 05-12-2023 stating that he has no interest to claim the compensation amount in this case. He has stated that the compensation amount awardable may be awarded among petitioners only. Hence, he will not be considered as legal representative of the deceased in calculating the compensation as he has relinquished his right to claim his right to compensation in favour of the petitioners. The petitioners are legal representatives of the deceased. Since the petitioners are the legal representatives of the deceased, they are entitled to the compensation.
In the case of National Insurance Co. vs. Birender ruling reported in (2020) 11 SCC 356, the Hon'ble Supreme Court has held as follows:
"12. The legal representatives of the deceased could move application for compensation by virtue of clause (c) of Section 166(1). The major married son who is also earning and not fully dependant on the deceased, would be still covered by the expression "legal representative" of the deceased. This
18 (SCCH-16) MVC 1514/2022 Court in Manjuri Bera (supra) had expounded that liability to pay compensation under the Act does not cease because of absence of dependency of the concerned legal representative.
Notably, the expression "legal representative" has not been defined in the Act. In Manjuri Bera (supra), the Court observed thus:
"9. In terms of clause (c) of subsection (1) of Section 166 of the Act in case of death, all or any of the legal representatives of the deceased become entitled to compensation and any such legal representative can file a claim petition. The proviso to said subsection makes the position clear that where all the legal representatives had not joined, then application can be made on behalf of the legal representatives of the deceased by impleading those legal representatives as respondents.
Therefore, the High Court was 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 estate of a deceased person, and includes any person who intermeddles
19 (SCCH-16) MVC 1514/2022 with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.
Almost in similar terms is the definition of legal representative under the Arbitration and Conciliation Act, 1996 i.e. under Section 2(1)(g)
12. As observed by this Court in Custodian of Branches of BANCO National Ultramarino vs. Nalini Bai Naique [1989 Supp (2) SCC 275 the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead it stipulates that a person who may or may not be legal heir competent to inherit the property of the deceased can represent the estate of the deceased person. It includes heirs as well as 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 20 (SCCH-16) MVC 1514/2022 entitled to compensation. In the concurring judgment of Justice S.H. Kapadia, as His Lordship then was, it is observed that there is distinction between "right to apply for compensation" and "entitlement to compensation". The compensation constitutes part of the estate of the deceased. As a result, the legal representative of the deceased would inherit the estate. Indeed, in that case, the Court was dealing with the case of a married daughter of the deceased and the efficacy of Section 140 of the Act. Nevertheless, the principle underlying the exposition in this decision would clearly come to the aid of the respondent Nos. 1 and 2 (claimants) even though they are major sons of the deceased and also earning.
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- 21 (SCCH-16) MVC 1514/2022 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 daughter and the petitioner No.2 is the son of the deceased Yamanavva. The petitioners have stated that they were depending upon the deceased. They have shown that they are legal representatives of the deceased, hence, they are entitled to compensation under the head of loss of dependency. In order to calculate the loss of 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 39 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- 1981. Admittedly, the accident took place on 10-05- 2020. Therefore, as on the date of accident the age of the deceased was about 39 years.
22 (SCCH-16) MVC 1514/2022 The petitioners have stated that the deceased was working as a building construction labour and she was having monthly income of Rs.25,000/-. The petitioners have not produced any documents to show the income of the deceased. Therefore, the notional income is to be considered as income of the deceased as per the guidelines of the Karnataka State Legal Services Authority.
In G.T. Basavaraj vs. Niranjan and another in MFA No.7781/2016 judgment dated 11-08-2022, in Ramanna and another vs. Y.B. Mahesh and another in MFA No.140/2017 judgment dated 16- 01-2020, in New India Assurance Co. Ltd., vs. Anusaya and others in MFA No.101195/2014 judgment dated 05-01-2023, the Hon'ble High Court of Karnataka has held that when the income is not proved, then the notional income of the deceased as per the guidelines issued by Karnataka State Legal Services Authority is to be adopted as the income of the deceased. The accident took place in the year 2020. Therefore, the notional income is to be treated as 23 (SCCH-16) MVC 1514/2022 Rs.14,500/- per month. Therefore, his annual income would be Rs.1,74,000/-.
As per the ratio laid down in the ruling of National Insurance Co. Ltd. vs. Pranay Sethi and others, reported in (2017) 16 SCC 680, the deceased is also entitled to future prospects though he is not a permanent employee. Since the deceased is aged about 39 years and not a permanent employee, the future prospects would be 40% of his income. Therefore, 40% of Rs.1,74,000/- comes to Rs.69,600/-. Therefore, the future prospects of the deceased comes about Rs.69,600/-. If this income is added to the notional income, then it comes about Rs.2,43,600/-. This income is within the limits of the exemption limit under the Income Tax Act.
The deduction of personal expenses and calculating the multiplicand : The family of the deceased consist of persons i.e., petitioner No.1 and 2. Therefore, the number of the dependents is 2. Therefore, deduction towards the personal expenses 24 (SCCH-16) MVC 1514/2022 comes about 1/3rd of the total income i.e., Rs.81,200/-. Therefore, the multiplicand is as follows:
Rs.2,43,600/- - Rs.81,200/- = Rs.1,62,400/- is the contribution towards the family/multiplicand.
Ascertaining the multiplier : The appropriate multiplier should be applied as per the decision of the Hon'ble Supreme Court in Sarla Verma and others vs. Delhi Transport Corporation and another reported in 2009 ACJ 1298. The age of the deceased is found as 39 years. Therefore, the appropriate multiplier is 15.
Therefore, the compensation under the head of loss of dependency is calculated as follows :
The age of the deceased is 39 years, number of dependents are 2, the notional income + future prospects is Rs.2,43,600/- per annum. Multiplicand is Rs.1,62,400/-, multiplier is 15. Therefore, the compensation to the petitioners under the head of loss of dependency is Rs.24,36,000/-. Hence, an amount of Rs.24,36,000/- is awarded to the petitioners towards loss of dependency.
25 (SCCH-16) MVC 1514/2022 Compensation under conventional heads : As per the judgment of the National Insurance Co. Ltd. vs. Pranay Sethi and others reported in (2017) 16 SCC 680, following conventional heads they are permissible.
1) Loss of estate Rs.15,000/-
2) Loss of consortium Rs.40,000/-
3) Funeral expenses Rs.15,000/-
Six years have been lapsed from the date of the judgment. Therefore, 20% is to be increased on this amount. Therefore, the loss of consortium comes about 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 26 (SCCH-16) MVC 1514/2022 these heads is loss of consortium. In legal parlance, "consortium" is a compendious term which encompasses "spousal consortium", "parental consortium", and "filial consortium". The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse:
[Rajesh v. Rajbir Singh, (2013) 9 SCC 54 (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] 21.1. Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of "company, society, cooperation, affection, and aid of the other in every conjugal relation":
(Black's Law Dictionary (5th Edn., 1979).
21.2. Parental consortium is granted to the child upon the premature 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 27 (SCCH-16) MVC 1514/2022 the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.
As per the ratio laid down in this case, the consortium is to be given under 3 heads i.e., spousal consortium, parental consortium and filial consortium. Therefore, the petitioners No.1 and 2 are entitled to Rs.48,000/- each towards parental consortium.
19. The details of compensation proposed to be awarded are as under:
Sl. Head of
Amount/Rs
No. Compensation
1. Loss of dependency Rs. 24,36,000-00
2. Loss of parental Rs. 96,000-00
consortium
3. Loss of estate Rs. 18,000-00
4. Funeral expenses Rs. 18,000-00
Total Rs. 25,68,000-00
20. In all, petitioners are entitled for compensation of Rs.25,68,000/- with interest at the rate of 6% per annum from the date of petition till its realization. 28 (SCCH-16) MVC 1514/2022 Liability:
21. The respondent No.2 has stated that the rider of the offending vehicle has no valid driving licence as on the date of accident. In the charge sheet, it is stated that the rider of the two-wheeler bearing No.KA-51-ET-
8432 has no valid driving licence as on the date of the accident. A defence of the respondent No.2 is that since the rider of the offending vehicle has no valid driving licence, hence the insurance company is not liable to pay any compensation. But, the comprehensive insurance policy of the offending vehicle was in force as on the date of the accident. The deceased is pillion rider in the said vehicle. The learned counsel for the respondent No.2 has relied upon the judgment of Hon'ble Supreme Court of India reported (1) ILR 2023 KAR 459 in the case of Gohar Mohammed vs. UPSRTC and others, (2) MFA No.6154/2019 (MV-D) in the case of Hemalatha @ Hema @ Hemavathi and others vs. Bajaj Allianz General Insurance Co. Ltd., and another, (3) MFA No.4716/2011 (MV) in the case of the United India Insurance Co. Ltd., vs. Umamaheshwari @ Umadevi and 29 (SCCH-16) MVC 1514/2022 others, (4) MFA No.23290/2012 (MV) in the case of The Branch Manager, Cholamandalam MS General Insurance Co. Ltd., vs. Tulasawwa and others.
22. In the first ruling, the principle of pay and recovery not discussed. In the second ruling, it is held that if the driver of the offending vehicle is not possessing the driving licence and insured has not contesting the suit then the insurance company cannot be fastened with pay and recovery when there is a clear breach of policy conditions and liability to pay compensation is on the owner of the offending vehicle. The facts and circumstances stated in the ruling is not applicable to the facts and circumstances of the case on hand.
23. In the third ruling relied upon by the petitioner, it is held as follows:
"2. Learned counsel for the appellant, points to the written statement filed before the MACT, advancing a plea that the driver of the motor vehicle did not possess a valid driving licence as also the contents of Ex.P2 the charge sheet, wherein, the driver of the offending motor vehicle is charged under clause (1) of Section 3 read with Section 181 of the Motor Vehicles Act, 1988, as he did not 30 (SCCH-16) MVC 1514/2022 possess a valid driving licence as on the date of the accident. In that view of the matter, it cannot be said that there was a fundamental breach of the conditions of the indemnity extended by the appellant/insurer in favour of the insured against the claims put-forth by the third parties".
In this case, it is held when the driver of the offending vehicle did not possess the valid driving licence then it cannot be said as fundamental breach of the condition of the policy. Hence, order of the Tribunal is modified and pay and recovery is ordered against the insurance company.
24. The fourth and fifth ruling are not related to the principle of pay and recovery. Hence, they are not applicable to the present set of facts and circumstances.
25. 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 31 (SCCH-16) MVC 1514/2022 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.
26. In United India Insurance Co. vs. V. Janardhan ruling reported in 2021 SCC Online KAR 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".
27. In Shivanna vs. Muniyappa ruling reported in 2022 SCC Online KAR 16660, the 32 (SCCH-16) MVC 1514/2022 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.
28. 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 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.
29. 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 33 (SCCH-16) MVC 1514/2022 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 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.
34 (SCCH-16) MVC 1514/2022
(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 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 35 (SCCH-16) MVC 1514/2022 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 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."
30. 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:
36 (SCCH-16) MVC 1514/2022 "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 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".
31. 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 37 (SCCH-16) MVC 1514/2022 by the driver who was not possessing valid driving licence on the date of the accident".
32. 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 breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident".
33. The respondent No.1 has not resisted the claim of the petitioners and not produced any documents to show that there is valid and effective driving licence to the rider of his vehicle as on the date of accident. Further, the charge sheet which is marked as Ex.P8 would show that there was no valid licence to the rider of the two-wheeler vehicle as on the date of accident. Therefore, from the materials available on record, it is 38 (SCCH-16) MVC 1514/2022 clear that the rider 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 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.
Apportionment :
34. The petitioners No.1 and 2 are the legal representatives and they are entitled for the
39 (SCCH-16) MVC 1514/2022 compensation. The petitioner No.1 and 2 are the daughter and son of the deceased, they are entitled to 50% each of the total compensation. As discussed above, the respondent No.3 has filed the affidavit stating that he will relinquish his right to claim compensation to the petitioners. Hence, no compensation is awarded to him.
35. As discussed above, the petitioners have shown that the vehicle bearing registration No.KA-51-ET- 8432 has caused the accident to the mother of the petitioners and the accident was due to rash and negligent riding of the rider of the said vehicle. They have further shown that they are entitled to total compensation of Rs.25,68,000/-. 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 and respondent No.2 is entitled to recover the compensation from the respondent No.1 after paying it to the petitioners. Hence, I answer issue No.2 partly in the affirmative.
40 (SCCH-16) MVC 1514/2022 ISSUE No.3:
36. In view of the findings, the petition deserves to be allowed in part. Hence, the following order is passed:
ORDER The petition is partly allowed with costs.
The petitioners are entitled to compensation of Rs.25,68,000/- (Rupees twenty five lakhs and sixty eight thousand 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 - Daughter 50% Petitioner No.2 - Son 50% Out of the compensation amount so apportioned in favour of the petitioners No.1 and 2 being the minors,
41 (SCCH-16) MVC 1514/2022 entire compensation amount shall be deposited in their names as FD in any nationalized bank of the choice of next friend of petitioners till they attain age of majority.
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 28th day of February 2024) (Ganapati Bhat) Member, MACT, Bengaluru.
ANNEXURE Witnesses examined on behalf of petitioners:
PW1 Sri Bheemappa 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 Inquest
Ex.P6 Postmortem Report
Ex.P7 True copy of MVA Report
Ex.P8 True copy of Charge Sheet
Ex.P9 Notarized copy of Aadhar Card (4 in
nos.)
Witnesses examined on behalf of respondents:
RW1 Sri Prashanth N.G.S. 42 (SCCH-16) MVC 1514/2022
Documents marked on behalf of the respondents:
Ex.R1 Authorization Letter Ex.R2 True copy of the Policy Ex.R3 Letter dated 04-07-2022 Ex.R4 RPAD Cover Ex.R5 True copy of Section 133 Notice Ex.R6 True copy of Reply to Section 133 Notice (Ganapati Bhat) Member, MACT, Bengaluru.