Bangalore District Court
Aruna vs Gangadhara on 24 March, 2025
KABC020175072022
BEFORE THE COURT OF XXIV ADDITIONAL SMALL
CAUSES JUDGE AND THE MOTOR ACCIDENT CLAIMS
TRIBUNAL AND ACJM (SCCH-26) AT BENGALURU
DATED THIS THE 24th DAY OF MARCH 2025
PRESENT : SRI. APPASAB NAIK,
B.A.L.L.B.(Spl)
XXIV ADDL. SCJ & ACJM
& MEMBER - MACT BENGALURU.
M.V.C.No.3092/2022
PETITIONERS: 1. Aruna,
W/o. Late Lokesh,
Aged about 30 years,
2. Baby @ Pavithra
D/o. Late Lokesh,
Aged about 12 years.
3. Pushpalatha,
D/o.Late Lokesh,
Aged about 10 years.
4. Pravalika
D/o. Late Lokesh,
Aged about 8 years.
5. Amala,
D/o. Late Lokesh,
Aged about 6 years.
(Since Petitioner No.1 to 4 are
Minors Rep. by Mother & Natural
Guardian, Aruna (Petitioner No.1)
SCCH-26 2 MVC 3092/2022
6. Hanumappa Gari Sanirappa,
S/o.Late Hanumappa,
Aged about 60 years,
7. Gangamma,
W/o.Hanumappa,
Gari Sanirappa,
Aged about 55 years,
All are R/at No.16-72b,
Vadarahatti Village, Rolla Post
& Hobli, Madakasira Taluk
Satyasai District,
Andhra Pradesh State
(By Sri.C.C. Harish - Advocate)
Vs.
RESPONDENTS: 1) Gangadhara,
S/o.Dasappa,
Age Major,
Ginnappanahatti Village,
Yaradakatte Post,
Sira Taluk,
Tumkur District,
PIN - 572137
(RC Owner of the Motor Cycle Engine
No.HA11EYM5G65173 and Chasis
No.MBLHAW120M5G28610)
(Expartee)
2) HDFC ERGO GENERAL INS COMPANY
LTD., Regional Office No.25/1, 2nd Floor,
Building No.2, Shankarnarayana Building,
M.G.Road, Bangalore - 01.
(Policy No.2312910147381500000
SCCH-26 3 MVC 3092/2022
Valid from 14.10.2021 to 13.10.2026)
(By Sri. K.Suresh - Advocate)
***
JUDGMENT
This claim petition is filed under the provisions
of Sec.166 of M.V Act, 1988 seeking compensation for
the death of Sri.Lokesh caused in a Road Traffic
accident.
2. The brief facts of the petitioners case are
as under:
It is the case of the petitioners that, on
20.05.2022 at about 6.00 p.m., when Sri.Lokesh
(hereinafter referred as deceased) was proceeding as a
pillion rider on the motor cycle Engine
No.HA11EYM5G65173 and Chasiss No.MBLHAW
120M5G28610, which was ridden by its rider, when
they reached near Shettigondanahalli Gate Gubbi,
Yediyur State Highway Road, Turuvekere Taluk,
Tumkur District, in a rash and negligent manner,
endangering human life, without observing traffic rules
SCCH-26 4 MVC 3092/2022and regulations lost control over the said vehicle and
dashed against the another motor cycle bearing
Reg.No.KA-06-ES-4594, as a result the pillion
rider/deceased fell down and sustained grievous
injuries and succumbed to death. Immediately after
the accident the deceased was shifted to nearby Govt.
Hospital, Turuvekere, Post Mortem was conducted and
handed over the body to the petitioners. Thereafter the
funeral and obsequies ceremony was conducted and
spent more than Rs.2,00,000/- towards medical and
other incidental charges. Due to sudden demise of the
deceased the petitioners were put to great mental
shock, pain and sufferings.
Prior to the accident the deceased was hale and
healthy, aged about 38 years, doing Pipe Line work
and earning a sum of Rs.30,000/- per month and he
was contributing his entire income towards the
maintenance of the family. Due to untimely death of
deceased petitioners life has become dark, miserable,
SCCH-26 5 MVC 3092/2022
depressed and put to great financial hardship. The
Petitioner No.1 being wife of deceased and Petitioners
No.2 to 5 being minor children of the deceased and
Petitioner No.6 & 7 being the parents of the deceased
have lost their beloved care taker, loving husband, son
and father. The accident took place due to rash and
negligent riding of the rider of the motor cycle bearing
Engine No.HA11EYM5G65173 & Chassis No.MBL
HAW 120M5G28610. In this regard a case has been
registered by Turuvekere under crime No.100/2022.
Hence, petitioners have prayed to award compensation
of Rs.50,00,000/- from the respondents.
3. After service of summons, the Respondent
No.1 remained absent and has been placed exparte.
The Respondent No.2/Insurance Company has
appeared before this tribunal and filed its written
statement denying the entire petition averments as
false and baseless. As per Sec.134(c) of MV Act, the
respondent have failed to furnish the particulars of
SCCH-26 6 MVC 3092/2022
policy, date, time, place of accident, particulars of
injured and the name of the driver and particulars of
driving licnse and has not complied with the statutory
demand. As per Sec.158 (6) of MV Act, it is the
mandatory duty of the concerned Police Station to
forward the entire relevant document to the concerned
insurer within 30 days from the date of information
but they have failed to do so. It has contended that
the insured knowingly entrusted the vehicle to the
rider who was not possessing valid and effective
driving license to drive the said vehicle and they by
breached the terms and conditions of the policy. After
due investigation Police have filed the Charge Sheet
against the driver and owner of the motor cycle
U/Sec.3(1) & Sec.180,1818, 192 of MV act as the rider
was not having DL and owner of the vehicle allowed
the unlicensed person to drive the offending vehicle
and using vehicle without registration with 3 pillion
rider, thereby the insured has breached the terms and
SCCH-26 7 MVC 3092/2022
conditions of the policy and this respondent is not
liable to the pay compensation to the petitioners. It
has admitted that it has issued policy of insurance in
respect of respondent No.1 in respect of motor cycle
rider of the motor cycle bearing Engine
No.HA11EYM5G65173 & Chassis No.MBL HAW
120M5G28610 and the risk of the pillion rider is not
covered under this policy and it was valid as on the
date of accident and the liability if any is subject to
terms and conditions of the policy. The policy has
become null and void and the insured vehicle had not
FC as on the date of alleged accident. It has further
contended that the deceased was pillion rider on motor
cycle with 3 pillion riders and it is skid fall from the
bike without wearing the helmet and the accident
occurred only due to the negligence of the deceased.
The petitioners colluding with the jurisdictional Police
have created false and concocted documents and filed
false complaint and the motor cycle is falsely
SCCH-26 8 MVC 3092/2022
implicated. Further the respondents denied the name,
age, occupation and income of the deceased. Further
denied the compensation claimed by the petitioners is
highly excessive and exaggerated one. Hence, prayed
to dismiss the petition.
4. On the basis of above pleadings, the following
Issues have been framed:
ISSUES
1. Whether the petitioners prove that the
death of deceased Lokesh
S/o.Hanumappa was only due to rash
and negligent driving by the driver of the
Motor Cycle bearing Engine
No.HA11EYM5G65173 and Chassis
No.MBLHAW120M5G28610, its rider to
drive the rash and negligent manner
endangering to human life without
observing the traffic rules and
regulations and loss to the control his
riding and dashed against another
motor cycle bearing Reg.No.KA-06-ES-
4594 on 20.05.2022 at about 6.00 p.m.,
on Gubbi Yadiyuru State Highway Road
near Shettigondanahalli Gate,
Turuvekere Taluk, Tumkuru District?
2. Whether petitioners are entitled?
3. What Order ?
SCCH-26 9 MVC 3092/2022
5. The Petitioner No.1 got examined herself as
PW.1 and got marked 15 documents as Ex’s.P1 to 15. On
the other hand, Senior Manager of Respondent Insurance
Company has got examined himself as RW.1, got marked
document as Ex.R1 and closed its side evidence.
6. Heard the arguments on both sides. Perused the
entire materials placed on record. Learned counsel for
petitoners has submitted the written arguments.
The learned counsel for petitioner has filed the
following citations:
1) 2011 ACJ 2216 (National Insurance Co. Ltd.,
V/s Vishnu Motiram Maske & anr.)
2) 1985 ACJ 397 Sc (Narcina V/s Kamat & anr. V/s
Alfredo Doe Martin and Others)
3) 2013 ACJ 1642 (National Ins. Co., Ltd., V/s
Narmada Rai & Ors.)
4) 2013 ACJ 1758 (Ramlal V/s Prakash & Ors.)
5) MFA No.7089/2016 c/w 6824/2016 (The Legal
Manager V/s Smt. Nagamma Ors.) Hon’ble High Court of
Karnataka.
6) SCC 2018 (3) Para No,.208 (SC) (Pappu & Ors.
V/s Vinod Kumar & Ors.)
7) SCC 2018 (9) (Shamanna & Ors V/s Oriental
SCCH-26 10 MVC 3092/2022
Ins.Co.Ltd., & Ors.)
8) ACJ 2020 New India Assurance Co.Ltd., V/s
Yellavva & Ors.)
9) MFA No.2374/2021 (Prabhu V/s Ratnakar)
10) MFA No.4952 (Sagayamarry. M V/s Ravi & Ors.)
11. 2025 AHC 14110 of Hon’ble Allahabad High
court)
7. My answers to the above issues are as follows :-
Issue No.1 : In the Affirmative
Issue No.3 : Partly Affirmative
Issue No.4 : As per final order
for the following :
REASONS
8. ISSUE NO.1 : PW.1 has produced Ex.P10 to 15 –
Aadhaar cards of deceased and petitioners. Ongoing
through the said documents, it is clear that petitioners No.1
to 7 are considered as legal heirs of the deceased and they
are entitled for compensation.
9. As already stated supra, it is the case of PW.1
that on 20.05.2022 at about 6.00 p.m., when Sri.Lokesh
deceased was proceeding as a pillion rider on the motor
cycle bearing Engine No.HA 11EYM5G65173 and Chassis
SCCH-26 11 MVC 3092/2022
No.MBLHAW120M5G2 8610, which was ridden by its rider,
when they reached near Shettigondanahalli Gate Gubbi,
Yediyur State Highway Road, Turuvekere Taluk, Tumkur
District, in a rash and negligent manner, endangering
human life, without observing traffic rules and regulations
lost control over the said vehicle and dashed against the
another motor cycle bearing Reg.No.KA-06-ES-4594, as a
result the pillion rider/deceased fell down and sustained
grievous injuries and succumbed to death.
10. On the other hand, it is the contention of the
respondents that, death caused due to not wearing helmet
and also proceeding as 3 pillion riders on the motor cycle at
the time of accident. Therefore, the burden is on the
petitioners to prove the actionable negligence on the part of
rider of the offending motor cycle. As already stated supra
the Petitioner No.1 has examined herself as PW1. She has
filed affidavit for her chief examination and re-iterated the
entire petition averments and got marked 15 documents as
Ex.P1 to P15. The Ex.P.1 is the compliant, Ex.P.2 is the FIR,
SCCH-26 12 MVC 3092/2022
Ex.P.3 is the Spot Panchanama, Ex.P.4 is the Seizur
panchanama, Ex.P.5 is the Hand sketch, Ex.P.6 is the
Accident inspection report, Ex.P.7 is the inquest report, Ex.P.8
is the Post mortem report, Ex.P.9 is the Final report(Charge
Sheet) and Ex.P.10 to Ex.P.15 are the Aadhar cards.
11. As per Ex.P.2 i.e., FIR, the case is registered
against the rider of the motor cycle rider of the motor cycle
bearing Engine No.HA11EYM5G65173 & Chassis No.MBL
HAW 120M5G28610 for the offence punishable U/Sec.279,
337 and 304(A) of IPC and after investigation the police have
filed charge sheet against the driver of rider of motorcycle for
the offence punishable U/Sec.279, 337 and 304(A) of IPC
R/w. sec. 181, 3,180 and 192 of I.M.V.Act.
12. The respondent No.2 contended that, the rider of
the offending motorcycle was not holding valid and effective
driving licence. Therefore it is violated the Rule 3 of Central
Motor vehicle Rules 1989. The respondent No.2 has
knowingly full well entrusted the vehicle to the driver who has
not holding valid and effective driving licence. Therefore the
insurance company is not liable to pay compensation to the
SCCH-26 13 MVC 3092/2022
petitioners.
13. On perusal of the documents and cross-examination
made by the respondent No.2/insurance Company it shows
that, the accident and involvement of the offending vehicle is
not seriously disputed. The police have filed the charge sheet
for the offence punishable under section 3 of MV Act. The
owner has not appeared and not filed the written statement
and not contested the matter and also not challenged the
charge sheet.
14. Though the learned counsel for the respondent
No.2 has cross examined PW.1, but he has failed to prove
that deceased Lokesh was died due to not wearing the
helmet the time of accident. Moreover by the said defence
evidence, there is nothing on record to show that the
charge-sheet filed by the police is collusive or defective.
15. The official of Respondent No.2 is examined as
RW.1 and filed the affidavit in lieu of chief examination. In
his chief affidavit, he has repeated the averments of the
written statement, but not denied the accident. In the cross-
examination he is admitting that after completion of the
SCCH-26 14 MVC 3092/2022
investigation, the I.O has submitted the charge sheet
against him and not questioned the said charge sheet.
14. The counsel for the petitioner argued that, the
accident occurred due to the rash and negligent riding of
the offending vehicle, hence there is no any contributory
negligence of the rider of the Motor cycle. Per contra, the
counsel for the respondent No.2 argued that, at the time of
the accident, the rider of the Motor cycle is not possesses
the valid and effective driving license and also the accident
was occurred due to the negligent riding of the Motor cycle.
15. I have perused the documents produced by the
petitioners it appears that, the Turuvekere Police have
registered the case in Crime No.100/2022 against the rider
of the offending motor cycle for the offenses punishable
u/s.279, 337 & 304(A) of IPC, on the basis of the complaint
lodged by the complainant. After submitting the FIR, the
police have conducting the spot mahazar and also prepared
the rough sketch of the accident took place and seized the
vehicles. After received the IMV report and completion of the
SCCH-26 15 MVC 3092/2022
investigation, the I.O has submitted the charge sheet
against the driver of the offending vehicle. The police have
alleged that, the rider of the offending motor cycle rode the
same in a rash and negligent manner with high speed and
dashed lost the control over his vehicle and dashed against
the Motor cycle bearing No.KA-06-ES-4594 as a result, the
pillion rider fell down and succumbed to death due to the
injuries sustained in Road Traffic Accident.
16. Though, the respondent No.2 has taken the
contention that, the accident occurred due to sole negligent
riding of the Motor cycle and also there is a contributory
negligence of the rider, but not denied the accident and also
death of the deceased in the accident. The respondent No.2
counsel nothing has been eliciting about the denial of the
accident, but they have only suggesting that, the accident
was occurred due to the rash and negligent riding of the
Motor cycle. Though the legal head of respondent No.2 has
examined, but he is admitting that after completion of the
investigation, the I.O. has submitted the charge sheet
SCCH-26 16 MVC 3092/2022
against him and they were not challenged the complaint
and charge sheet. Further the respondent No.1 has not
denied the mahazar and also rough sketch of the accident
took place. Though the counsel for the respondent No.1
submits that there is a contributory negligence of the Motor
cycle, but in support of the contributory negligence, there is
no any material placed on record. Mere, the rider of the
Motor cycle has not produced the driving license is not a
ground to considered as accident was occurred due to
negligence of the rider of the Motor cycle. Therefore
considering all the materials available on hand and
circumstances of the case, it is clear that, the accident was
occurred due to the rash and negligent driving of the rider
of the offending motorcycle.
17. Therefore, from the evidence of both the
parties it is clear that the accident occurred due to the rash
and negligence on the part of the rider of the offending
motor cycle. Moreover, it is settled law that the term
“rashness and negligence” has to be construed lightly while
SCCH-26 17 MVC 3092/2022
deciding a petition for claim of compensation under the MV
Act as compared to the word “rashness and negligence” as
finds mention in the Indian Penal Code. This is because the
chapter in M.V.Act dealing with compensation is a
benevolent legislation and not a penal one. Therefore, based
on the above discussion, I hold that the actionable
negligence on the part of the driver of the offending motor
cycle is proved. As such, I answer issue No.1 in the
Affirmative.
18. ISSUE No.2: As discussed at issue No.1, all the
petitioners are considered as legal heirs of the deceased
Lokesh S/o Hanamappa Gari Sanirappa . Hence, they are
entitled under the head loss of dependency.
19. LOSS OF DEPENDENCY:- PW.1 has produced
the notarized copy of Aadhaar card of deceased at Ex.P.12.
As per this document, he was born in the year 1986.
Therefore, as on the date of accident he was 36 years. As
per the principles laid down by their Lordships in 2009
ACJ 1298 (Sarla Verma Vs Delhi Transport
SCCH-26 18 MVC 3092/2022
Corporation), the multiplier applicable to the present case
is ’15’.
20. According to PW.1, her deceased husband was
doing Pipe Line work and earning a sum of Rs.30,000/- per
month. But not produced any document to prove his
income. Therefore, in the absence of proof of avocation and
income, this tribunal has to consider notional income for
calculating the compensation. As per the guidelines issued
by Karnataka State Legal Service Authority, the notional
income of the deceased is taken as Rs.15,500/- as the
accident took place in the year 2023.
21. As per the Hon’ble Apex court reported in a
decision reported in (2017) 16 Supreme Court cases 680
(National Insurance company Ltd., Vs Pranay Sethi and
others), 25% of income is to be added towards future
prospects as the age of deceased was below 40 years.
Therefore, 40% of Rs.16,500/- works out to Rs.6,200/-.
Then, the total income of the deceased works out to
Rs.21,700/- (Rs.15,500/- + Rs.6,200/-). Since the
SCCH-26 19 MVC 3092/2022
petitioners No.1 to 7 are the dependents of the deceased,
the 1/5th of the total income is to be deducted towards
his personal expenses. Hence, 1/5th of Rs.21,700/- works
out to Rs.4,340/-. Income for consideration is Rs.17,360/-
(21,700/- (-) 4,340/-). Annual income works out to
Rs.2,08,320/- (17,360/- x 12). Appropriate multiplier is
“15”. Thus loss of dependency works-out to
Rs.31,24,800/- (2,08,320/- x 15).
22. Further, as laid down by the Hon’ble Apex Court
in National Insurance Company Limited Vs. Pranay
Sethi and Others, amounts should be enhanced at the rate
of 10% in every three years under the following conventional
heads. As such, Petitioner No.1 is entitled to Rs.44,000/-
towards loss of consortium, Rs.16,500/- towards loss of
estate and Rs.16,500/- towards Funeral expenses.
23. As held by the Hon’ble Apex Court in Magma
General Insurance Co. Ltd., Vs. Nanu Ram Alias Chuhru
Ram and Others (Civil Appeal No.9581/2018
D.D.18.09/2018) the petitioner No.2 to 5 being the minor
SCCH-26 20 MVC 3092/2022
childrens of the deceased is awarded Rs.44,000/- each
and petitioner No. 6 and 7 have lost their son is awarded
Rs.44,000/- each under the head of Loss of parental
consortium and Loss of filial consortium.
24. The calculation table stands as follows :-
1 Loss of dependency Rs. 31,24,800/-
2 Loss of consortium to Rs. 44,000/-
petitioner No.1
3 Loss of parental Rs. 1,76,000/-
consortium to petitioner
No.2 to 5 (44,000 x 4)
4 Loss of Filial consortium Rs. 88,000/-
to petitioner No.6 and 7
(44,000 x 2)
4 Loss of estate Rs. 16,500/-
5 Funeral expenses Rs. 16,500/-
GRAND TOTAL Rs. 34,65,800/-
Hence, the petitioners are entitled for total compensation
of Rs. 34,65,800/-.
25. REGARDING INTEREST & LIABILITY: 27.
LIABILITY: Having regard to the nature of the claim and
current bank rate of interest, this Tribunal is of the view
that if interest at the rate of 6% p.a, is awarded, it would
SCCH-26 21 MVC 3092/2022
meet the ends of justice. On perusal of the contents of
petition and contents of objection statement, it reveals that,
the respondent No.1 is the owner and the respondent No.2
is the insurer of the offending motorcycle. Further, as
stated above that, the alleged accident has occurred due to
rash and negligent driving of the rider of the offending
motorcycle and the policy was in force as on the date of
accident.
26. The respondent No.2 contended that, the police
have filed the charge sheet against the rider of the
offending motorcycle Engine No.HA 11EYM5G65173 and
Chassis No.MBLHAW120M5G2 8610, for offence punishable
under section 279, 337 and 304(a) of IPC R/w. sec. 181,
3,180 and 192 of I.M.V.Act. Therefore the rider of the
offending motor had no valid and effective driving license at
the time of accident. The owner of the offending motorcycle
has knowingly full well entrusted the vehicle to the person
who had not having valid and effective driving licence.
Therefore the owner has violated the terms and conditions
SCCH-26 22 MVC 3092/2022
of the policy. Therefore the insurance company is not liable
to pay the compensation. The respondent No.2 insurance
company has got examined its official as RW-1 and
insurance policy copy is got marked as Ex.R.1.. However,
no doubt the police have filed charge sheet against the rider
of the offending motorcycle U/S.3 of M.V.Act. If the rider of
the offending vehicle had not valid and effective driving
license at the time of accident, the policy was in force at
that time who is liable to pay compensation is the question.
29.Therefore, learned counsel for petitioner has relied the
decision reported in, (2018) 9 SCC 650 (Shamanna and
another V/s. Divisional Manager, Oriental Insurance
Company Limited and others).
A.Motor Vehicles Act, 1988 – Ss.149 and 147 –
Third-party victim of motor vehicles accidents –
Award passed against insured owner – Duty of
insurer to satisfy the award in case of – Principle
of “Pay and Recover” – Law summarised.
– Tribunal awarded compensation of Rs.3,55,500
with interest 6% p.a. from the date of claim
SCCH-26 23 MVC 3092/2022
petition till realization – Since driver had no valid
driving licence and insurance policy written
statement violated, Tribunal directed insurance
company to pay compensation to claimants and
granted liberty to recover same from owner – High
Court while enhancing compensation to
Rs.4,94,700/- with interest @ 6% p.a., adopting
multiplier 18 instead of 14, set aside direction
issued to insurance company to “pay and recover”
– Held, since reference to larger Bench in
Parvathneni, (2009) 8 SCC 785 has been disposed
of by keeping questions of law open to be decided
in an appropriate case, presently award passed
by Tribunal is in accordance with judgment
passed by Supreme Court in Swarna Singh, (2004)
3 SCC 297 and Laxmi Narain Dhut, (2007) 2 SCC
700 cases holding that onus is always upon
insurance company to prove that driver had no
valid driving licence and that there was breach of
policy conditions – High Court ought not to have
SCCH-26 24 MVC 3092/2022interfered with award passed by Tribunal –
Impugned judgment of High Court insofar as
enhancement of compensation is concerned is
affirmed and exonerating insurance company from
its liability and directing claimants to recover
compensation from owner of vehicle is set aside
and award passed by Tribunal restored.
B. Motor Vehicles Act, 1988 – Ss.149, 147 and 168 –
Third-party insurance – Award passed against
insured owner to be paid by insurer and recovered
from owner – Mode of recovery – Following
Nanjappan, 92004) 13 SCC 224, held, insurer not
required to file a suit – It may initiate a proceeding
before executing court concerned as if dispute
between insurer and owner was subject-matter of
determination before Tribunal and issue is decided
against owner and in favour of insurer.Therefore, learned counsel for petitioner has relied the
decision reported in, (2018) 3 SCC 208 (Pappu and another
V/s. Vinodkumar and others).
It is held that
C.Motor Vehicles Act, 1988 – Ss.
149(2), 166 and 168 – Defence of unauthorised
SCCH-26 25 MVC 3092/2022driver with invalid licence – Insurer succeeding
in establishing its Consequence of – Held, owner
of vehicle ha produced insurance certificate
indicating that veicle was comprehensively
insured by Insurance company for unlimited
liability – Applying Swaran Singh, (2004) 3 Scc
297 to subserve ends of justice, insurer directed
to pay claim amount awarded by Tribunal to
claimants to first instance with liberty to recover
same from owner of vehicle in accordance with
laws.
Therefore, learned counsel for petitioner has relied the
decision reported in, 2020 ACJ 2500 (New India Assurance
Co.Ltd V/s Yallavva and another).
It is held that
Motor vehicles Act 1988, Section 149(2) (a)
and (b) read with section 149(3), 149 (4)
and 149 (7) – Motor, insurance Act or
comprehensive policy – Breach of – Liability of
insurance company – pay and recover order –
in a case where insurance company
successfully establishes that insured had
committed breach of policy as per section
149(2) (a) and breach was fundamental
SCCH-26 26 MVC 3092/2022contributing to the cause of accident or policy
is void as per section 149(2) (ii) whether in
view of the mandate under section 149(1)
insurance company would be liable to satisfy
the award vis a vis third party and entitled to
recover the amount from the insured – Held
– : yes: however if court comes to a finding
that third party has played fraud or was in
collusion with the insured for wrongful gain to
themselves then court may exercise its
discretion not to fasten liability on insurance
company – (2004 ACJ 1 (SC) followed)Learned counsel for respondent No.2 has argued that
after amendment of Motor vehicle Act 2019 w.e.f 01-04-
2022, the the principle of pay and recover is not existence
and respondent No.2 is not liable to pay the compensation
to petitioners. In this regard the learned counsel for
petitioner has relied the decision reported in, (2018) 9 SCC
650 Therefore, learned counsel for petitioner has relied the
decision reported in, 2025 AHC 14110( ICICI Lombard
General Insurance co.ltd V/s Smt.Arti Devi and others ).
SCCH-26 27 MVC 3092/2022It is held that,
The court therefore, hold that mere omission
or proviso attached to sub-section(4) of
Section 149 of Motor Vehicles Act, 1988 after
its replacement by Section 150 of Motor
Vehicles (Amendment) Act, 2019 32 of 2019,
neither takes away the liability of the insurer
to pay the claimants nor its right to recover
the said amount from the owner. The law to
this effect remains intact and unaffected by
Amendment Act, 2019 and hence, insurer
shall continue to indemnify the owner’s risk
in relation to accidents taking place after
01.04.2022 and “PAY & RECOVER” principle
will still continue to govern the held
advancing social object of the Statute
protecting third party interest. Principle of
law laid down by the Supreme Court, in
National Insurance Company Limited V/s.
SCCH-26 28 MVC 3092/2022Swaran Singh and others, JT 2004 (1) SC
109 has not lost its significances and
binding effect despite omission of proviso.
In view of the above decisions and discussions. I am of
the opinion the owner of the motorcycle is liable to pay
compensation, but in view of the policy to the motorcycle
by respondent No.2 though rider of the motorcycle had not
valid effective driving licence, at the time of accident, but in
view of policy and indemnify of the insurer to the owner,
the insurer is liable to pay the compensation to the third
party injured and insurer has right to recover the same
from the owner as a petitioner is a third party. Therefore
the respondent No.1 and 2 are jointly and severally liable to
pay compensation to the petitioner. However, the
respondent No.2 being the insurer of alleged motorcycle is
liable to pay compensation of Rs. 34,65,800/- with interest
@ 6% p.a. from the date of petition till the date of deposit
and recover the same from the owner/ respondent No.1.
SCCH-26 29 MVC 3092/2022Accordingly, I answer the issue No.2 in the partly
affirmative.
27. Issue No.3: In view of my findings on issue No.1 &
2, I proceed pass the following:
ORDER
The claim petition filed by the petitioners
U/Sec.166 of M.V.Act is hereby partly allowed
with cost.
The petitioners are entitled for
compensation of Rs. 34,65,800/-( Thirty
four Lakhs sixty five thousand eight
hundred only) with interest @ 6% p.a. from
the date of petition till the date of deposit.
The respondent No.1 and 2 are jointly and
severally liable to pay compensation to the
petitioners. However, the respondent No.2 being
insurer is directed to deposit the compensation
amount in this tribunal within two months from
the date of this order and recover the same from
the owner/ respondent No.1.
On deposit of the award amount together
with interest, the claimants are entitled for the
compensation amount by way of
apportionment as follows :
Petitioner No.1 – 40%
SCCH-26 30 MVC 3092/2022Petitioner No.2 to 5 – 10% each
Petitioner No.6 and 7- 10% eachAfter deposit of compensation amount,
release the 75% amount to the petitioner
No.1 through NEFT/RTGS by way of E-
payment on proper identification and the
remaining 25% of compensation amount
shall deposited in the name of the petitioner
No.1 as fixed deposit in any
nationalized/Scheduled bank for her choice
for a period of 3 years. However the said
Petitioner No.1 is at liberty to withdraw the
periodical interest accrued on their deposit
amount from time to time.
Entire compensation amount of petitioner
No.2 to 5, shall be kept in FD in their respective
name in any nationalized bank of petitioner
No.1’s choice till they attains the age of
majority.
After deposit of compensation amount,
release the entire apportionment amount to
the petitioner No.6 and 7 through NEFT/RTGS
by way of E-payment on proper identification.
Advocate fee is fixed at Rs.1,000/-.
SCCH-26 31 MVC 3092/2022
Draw award accordingly.
(Dictated to the stenographer, directly over computer, typed
by her, corrected by me and then pronounced in the open Court
on this day 24th March 2025)(APPASAB NAIK)
XXIV Addl. Small Causes Judge
& A.C.J.M. Bengaluru.
ANNEXURE
I. LIST OF WITNESSES EXAMINED ON BEHALF OF THE
PETITIONERS:
PW.1 Aruna
II. LIST OF DOCUMENTS MARKED ON BEHALF OF THE
PETITIONERS:
Ex.P1 Copy of Complaint
Ex.P2 Copy of Fir in Crl.No.100/2022 of
Turuvekere Police
Ex.P3 Copy of Spot Panchanama
Ex.P4 Copy of Seizure Panchanama
Ex.P5 Copy of Hand Sketch Map
Ex.P6 Copy of Accident Inspection Report
Ex.P7 Copy of Inquest Panchanama
Ex.P8 Copy of Post Mortem Report
Ex.P9 Copy of Final Report in Cr.No.110/2022
SCCH-26 32 MVC 3092/2022
of Turuvekere PS
Ex.P10 to 12 Notarized copy of Aadhaar Cards
deceased and Petitioner No.1 & 3
Ex.P13 to 15 Notarized copy of Aadhaar Cards
Petitioner No.2, 6 & 7III. LIST OF WITNESSES EXAMINED ON BEHALF OF THE
RESPONDENTS:
RW1 Suresh.G
IV. LIST OF DOCUMENTS MARKED ON BEHALF OF THE
RESPONDENTS:
Ex.R1 Copy of Insurance Policy
(APPASAB NAIK)
XXIV Addl. Small Causes Judge
& A.C.J.M. Bengaluru.
Digitally signed
APPASAB by APPASAB
RAMAPPA NAIK
RAMAPPA Date:
NAIK 2025.03.26
16:32:54 +0530
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