Bangalore District Court
Almas Alias Almas Khan vs Reshma Parveen on 16 June, 2025
KABC020144682022
BEFORE THE COURT OF 10th ADDITIONAL SMALL CAUSES
AND MOTOR ACCIDENT CLAIMS TRIBUNAL, AT:
BENGALURU
(SCCH-16)
Present: Sri. Mohammed Yunus Athani
B.A.,LL.B.,
X Addl. Judge, Court of Small Causes
& Member, MACT, Bengaluru.
MVC No.2511/2022
Dated this 16th day of June, 2025
Petitioner: Almas @ Almas Khan D/o Late Afroz
Khan,
Aged about 16 years,
R/at No.35/51, II Main,
Nanjundeshwar Nagar,
Nandini Layout, Bengaluru - 96.
(Since minor represented by grand
father and natural guardian Shaik
Fareed)
(Sri B. S. Manjunath, Advocate)
Vs.
Respondents: 1. Reshma Parveen W/o Afroz Khan,
R/at No.33/51, III Main,
Nanjundeshwar Nagar,
2 MVC No.2511/2022
Nandini Layout, Bengaluru - 96.
(RC owner of car bearing
Reg. No.KA-04-MR-5890)
(Ex-parte)
2. Madhu N. Rao,
R/at No.L-62, Simhalaya Kirloskar
Colony, near Arabindo School,
III Stage, Basaveshwara Nagar,
Bengaluru - 79.
(Previous RC owner of car
bearing Reg. No.KA-04-MR-5890)
(Sri Adinarayana, Advocate)
3. Bajaj Alliance General Insurance
Company Limited,
No.32, Ground Floor, TBR Tower,
Adjacent to Jain College,
I Cross, Mission Road,
Bengaluru - 27.
(I.P. No.OG-22-1701-1801-
00003040, valid from 07-05-2021 to
6-07-2022)
(Sri Sunil Kumar K.N., Advocate)
JUDGMENT
This is petition filed under Section 166 of Motor
Vehicles Act, seeking compensation of Rs.15,00,000/- from
3 MVC No.2511/2022
the respondents, on account of grievous injuries sustained
by the petitioner in a road traffic accident.
2. The brief facts of the case are as follows :
On 13-02-2022 at about 10:30 a.m., the petitioner was
occupant in a car bearing Reg. No.KA-04-MR-5890 traveling
along with her parents, sister, grand mother and a relative,
all were proceeding from Bengaluru to Chitradurga, on NH-
04 i.e., on Bengaluru-Hiriyur road. The driver Afroz Khan,
who is the father of petitioner, was driving the said car at
high speed, in reckless, rash and negligent manner. While
so proceeding, near Ravi Dhaba, Adivala Village, Hiriyur
Taluk, Chitradurga District, due to over speed he lost
control over the car, jumped the car over center median
and got capsized on the other side of the road. Due to the
said impact, all the inmates have sustained severe injuries.
The driver of the car/father of the petitioner Afroz Khan
died on the spot and her grandmother died during the
course of treatment on the same day. The petitioner and
4 MVC No.2511/2022
others have sustained grievous injuries. Immediately after
the accident, the petitioner was shifted to Government
Hospital, Hiriyur, wherein first aid treatment was given and
then she was shifted to Sparsh Hospital, Bengaluru,
wherein she took treatment as an in-patient. Earlier to the
accident, she was studying in 10th standard, at Lourdes High
School, Nanjundeshwara Nagar, Bengaluru and she was
brilliant student and very good at her studies. Due to
accidental injuries and permanent physical disability, she
did not attend the classes for her remaining academic year
and did not perform well in her annual examination, which
has affected her educational career and bright future. She
is undergoing deep mental shock, pain and sufferings,
untold hardship, getting pain over left arm, she cannot lift
or carry weights, cannot concentrate on her studies, cannot
participate in sports and extracurricular activities, cannot
ride bicycle and cannot do any work. The injuries sustained
have caused permanent disability. The Hiriyur Rural Police
5 MVC No.2511/2022
have registered the case against the driver of the said car
for the offences punishable under Section 279 and 338 of
I.P.C. The respondent No.1 is the owner, respondent No.2 is
the previous owner and respondent No.3 is the insurer of
the offending vehicle. Hence, they are jointly and severally
liable to pay compensation to the petitioner. Therefore, it is
prayed to allow the petition and award compensation of
Rs.15,00,000/- with interest.
3. On service of notice to the respondents, the
respondents No.2 and 3 appeared through their counsel and
filed their separate written statements. Whereas, the
respondent No.1 did not choose to appear and remained
absent. Hence, the respondent No.1 is placed as ex-parte.
4. The respondent No.2 in his written statement has
denied all the allegations made in the petition. He has
contended that, he is the previous owner of the car bearing
Reg. No.KA-04-MR-5890 and the said car was sold to
6 MVC No.2511/2022
respondent No.1 through one of the used car dealers. The
said car was handed over on 18-01-2021 to one Naveen K.J.,
car dealer. He has also received a cheque of Rs.2,50,000/-
towards sale consideration of the car from said Naveen and
transferred the said car in favour of respondent No.1, as
per the rules of Motor Vehicles Act. Accordingly, the
respondent No.1 has become the registered owner of the
said car on February 2021. Further it is contended that, he
had taken insurance cover from HDFC ERGO General
Insurance Company Limited and the said insurance was
valid upto 6th May 2021. From 6th May 2021, the sole
responsibility for renewal of insurance policy was on the
respondent No.1. The alleged accident has taken place on
13-02-2022, which is almost one year after the said vehicle
was transferred/sold. Hence, there is no role of respondent
No.2 in the said case and he is not proper and necessary
party to the case. For the above denials and contentions, it
is prayed to dismiss the petition.
7 MVC No.2511/2022
5. Likewise, the respondent No.3 in its written statement
has denied all the allegations made in the petition. It has
admitted the issuance package policy bearing No.OG-22-
1701-1801-00003040 in favour of respondent No.2, in
respect of vehicle bearing Reg. No.KA-04-MR-5890 and it
was valid from 07-05-2021 to 06-05-2022. It has denied the
manner of accident and also involvement of the vehicle
bearing No.KA-05-MR-5890 in the alleged accident. It has
contended that, the driver of the vehicle bearing Reg.
No.KA-04-MR-5890 was not holding valid and effective
driving licence to drive the said vehicle at the time of the
alleged accident. His driving licence had expired before the
date of accident. Thus, the respondent No.2 has violated
the provisions of the Motor Vehicles Act and also committed
the breach of the terms and conditions of the policy by
permitting an unlicensed driver to drive the said vehicle and
not intimating the respondent No.3 insurance company
about the transfer of insured vehicle in favour of the
8 MVC No.2511/2022
respondent No.1. Hence, it will not be liable to indemnify
the respondents No.1 and 2. Further it seeks protection
under Section 147 and 149 of Motor Vehicles Act, 150(2) of
new act. Further it is contended that, the petition is bad for
non compliance of provisions under Sections 134(c) and
158(6) of Motor Vehicles Act. It has denied the rash and
negligent driving of the driver of the car bearing Reg.
No.KA-04-MR-5890. It has denied the age of the petitioner,
injuries sustained, medical expenses and treatment taken
by her. It has sought permission to contest even on behalf
of respondent No.1, as per Section 170 of the Motor
Vehicles Act. Further it is contended that, the compensation
claimed is highly excessive and exorbitant. For the above
denials and contentions, it is prayed to dismiss the petition.
6. On the basis of rival pleadings of both the sides, the
following issues are framed:
ISSUES
1. Whether the petitioner proves that, she
9 MVC No.2511/2022has sustained grievous injuries in the
road traffic accident, alleged to have
occurred on 13-02-2022 at about 10.30
a.m., due to the rash and negligent
driving of the driver of the Car bearing
Reg. No.KA-04-MR-5890 ?
2. Whether the petitioner is entitled for
compensation? If so, what is the
quantum and from whom ?
3. What order or Award ?
7. In order to prove her case, the petitioner has got
examined her grandfather/natural guardian as P.W.1 and
got marked total 18 documents as Ex.P.1 to 18. Further, she
has got examined one more witness namely Dr. Kalaiyarasi
M., as P.W.2. On the other hand, the respondent No.3 has
examined First Division Assistant of RTO, Bengaluru West as
R.W.1 and its Assistant Manager as R.W.2 and got marked 6
10 MVC No.2511/2022
documents as Ex.R.1 to 6. The respondent No.2 has not
adduced any evidence on his behalf.
8. I have heard the arguments of both the sides and
perused the entire material placed on record.
9. My findings on the above issues are as under:
Issue No.1: Partly Affirmative
Issue No.2: Partly Affirmative
Issue No.3: As per the final order, for the
following:
REASONS
10. Issue No.1: It is specific case of the petitioner that, on
13-02-2022 at about 10:30 a.m., the petitioner along with
her parents, sister, grand mother and a relative was
traveling in a car bearing Reg. No.KA-04-MR-5890,
proceeding from Bengaluru to Chitradurga, the same being
driven by her father Afroz Khan. While so proceeding, near
Ravi Dhaba, Adivala Village, Hiriyur Taluk, Chitradurga
11 MVC No.2511/2022
District, due to over speed, rash and negligent driving, he
lost control over the car, jumped the center median and got
it capsized to the other side of the road. Due to the said
impact, the driver of the car/father of the petitioner Afroz
Khan died on the spot and her grandmother died during
the course of treatment on the same day. The petitioner
and others have sustained grievous injuries. Further it is
contended that, earlier to the accident, she was studying in
10th standard, at Lourdes High School, Nanjundeshwara
Nagar, Bengaluru and she was brilliant student and very
good at her studies. Due to accidental injuries and suffering
permanent physical disability, she could not perform well in
her annual examination, she is undergoing deep mental
shock, pain and sufferings, untold hardship, getting pain
over left arm, she cannot lift or carry weights, cannot
concentrate on her studies, cannot participate in sports &
extracurricular activities, cannot ride bicycle and cannot do
any work.
12 MVC No.2511/2022
11. In order to prove her case, the petitioner has
examined her grandfather/natural guardian as P.W.1. The
P.W.1 has filed his examination-in-chief affidavit, wherein
he has reiterated entire averments made in the petition.
Further, in support of her oral evidence, the petitioner has
got marked total 18 documents as Ex.P.1 to 18. Out of the
said documents, Ex.P.1 is true copy of F.I.R., Ex.P.2 is true
copy of first information statement, Ex.P.3 is true copy of
sketch, Ex.P.4 is true copy of spot-mahazar, Ex.P.5 is true
copy of Motor Vehicle Accident report, Ex.P.6 is true copy of
wound certificate, Ex.P.7 is true copy of charge-sheet, Ex.P.8
and 9 are notarised copy of Aadhar cards of P.W.1 and
petitioner, Ex.P.10 is discharge summary, Ex.P.11 is out-
patient record, Ex.P.12 is MRI scanning report, Ex.P.13 are
lab reports (total 15), Ex.P.14 are medical bills (total 6),
Ex.P.15 is authorization letter, Ex.P.16 is police intimation,
Ex.P.17 is copy of MLC extract and Ex.P.18 is in-patient file.
13 MVC No.2511/2022
12. On meticulously going through the police documents
marked as Ex.P.1 to 7, prima-facia it reveals that, the
accident in question has taken place due to rash and
negligent driving of the driver of offending car bearing Reg.
No.KA-04-MR-5890. Due to over speed the driver has lost
the control over his car, jumped the car over center median
and got it capsized on the other side of the road. Due to the
said impact, the petitioner has sustained simple injuries,
other inmates have sustained grievous injuires and the
driver of said car Afroz Khan has died on the spot. The
petitioner has sustained lacerated wound of 3×1 c.m.,
behind left eye and abrasion of 3×2 c.m. over left side of the
neck. The investigation officer in his final report, marked as
Ex.P.7, has clearly stated that, the said accident is caused
due to rash and negligent driving of the driver of offending
car bearing Reg. No.KA-04-MR-5890 and the petitioner has
sustained simple injuries in the said accident.
14 MVC No.2511/2022
13. At the outset, is it pertinent to note that, in the
present case, the date, time and place of accident,
involvement of offending car bearing Reg. No.KA-04-MR-
5890 in the said accident, issuance of insurance policy in
favour of the respondent No.1 in respect of offending car
bearing Reg. No.KA-04-MR-5890 and its validity as on the
date of accident, are not in dispute. Further, it is also not
disputed that, the petitioner was occupant in the offending
car at the time of accident. Further, the oral and
documentary evidence placed on record by the petitioner
has remained undisputed by the owner of offending
vehicle/Respondent No.1, as she did not choose appear and
contest the case of the petitioner. The respondent No.2,
who is previous owner of offending vehicle has not denied
the manner and cause of accident. Whereas, the
respondent No.3 insurance company though has
specifically denied the above averred facts and
circumstances of the accident, it has failed to rebut the oral
15 MVC No.2511/2022
and documentary evidence placed on record by the
petitioner with respect to rash and negligent driving of the
driver of offending vehicle and the cause of accident. Except
the self serving statements of the R.W.2, who is the
Assistant Manager of respondent No.3 insurance company,
there is absolutely no other oral or documentary evidence
placed on record by the respondent No.3 to show that, the
accident in question has not taken place due to rash and
negligent driving of the driver of offending car bearing Reg.
No.KA-04-MR-5890. On the other hand, the oral and
documentary evidence placed on record by the petitioner
clearly establishes that, the said accident has taken place
due to rash and negligent driving of the driver of offending
car bearing Reg. No.KA-04-MR-5890. Though, the learned
counsel for respondent No.3 has cross-examined P.W.1 in
length, nothing worth has been elicited from his mouth
which creates doubt on the veracity of his evidence or
which establishes that, the said accident has not taken
16 MVC No.2511/2022
place due to negligence of the driver of the offending
vehicle.
14. The Ex.P.3 sketch and Ex.P.4 spot mahazer clearly
goes to show that, the said accident has taken place on NH-
04 Bengaluru-Hiriyur road, near Ravi Dhaba, Adivala village,
Hiriyur Taluk, Chitradurga District. It clearly reveals that,
due to over speed the driver of offending car bearing Reg.
No.KA-04-MR-5890 has lost control over his vehicle and
jumped the car over center median of the road and
capsized the same on the other side of the road. Further it
is pertinent to note, as per Ex.P.5 Motor Vehicle Accident
Report, the accident is not caused due to any mechanical
defects in the vehicle involved in the accident. When the
accident has not taken place due to the any mechanical
defects in the offending vehicle and there is no other
vehicle involved in the accident, then in the present facts
and circumstances of the case, it can be presumed that, the
said accident had occurred due to rash and negligent
17 MVC No.2511/2022
driving of the driver of offending vehicle. Further, the
investigation officer has clearly stated in his final report
that, the alleged accident has occurred due to rash and
negligent driving of the driver of offending car bearing Reg.
No.KA-04-MR-5890. Admittedly, the said final report/charge-
sheet has not been challenged by the owner of said vehicle.
In such circumstances, there is no impediment to believe
the final report filed by the investigation officer and other
police records, regarding the date, time and place of
accident, involvement of the offending vehicle in the
accident, rash and negligent driving of the driver of
offending vehicle and injuries caused to the petitioner in
the said accident. There is absolutely no material on record
to disbelieve the oral and documentary evidence placed on
record by the petitioner. In such circumstances and in the
light of above observations, it can safely be held that, the
respondent has failed to rebut the oral and documentary
evidence placed on record by the petitioner regarding the
18 MVC No.2511/2022
rash and negligent driving of the driver of offending car
bearing Reg. No.KA-04-MR-5890.
15. Further, on meticulously going through the Ex.P.6
wound certificate, Ex.P.10 discharge summary, Ex.P.11 out-
patient record, Ex.P.13 lab reports (total 15) and Ex.P.18 in-
patient file, it clearly reveals that, the petitioner has
suffered injuries in a road traffic accident and she has
sustained lacerated wound of 3×1 c.m.. behind left eye and
abrasion of 3×2 c.m., over left side of neck and for the said
injuries she has taken conservative treatment. On the other
hand, there is no rebuttal evidence produced by the
respondents No.2 and 3, to show that the above medical
records are false documents. There is nothing on record to
disbelieve the oral and documentary evidence placed on
record by the petitioner. Therefore, in such circumstances
and in the light of above observations, it can be safely be
held that, the respondents No.2 and 3 have failed to rebut
the oral and documentary evidence placed on record by the
19 MVC No.2511/2022
petitioner regarding the rash and negligent driving of the
driver of offending car bearing Reg. No.KA-04-MR-5890.
16. Further, it is well settled principle of law that, in a case
relating to the Motor Accident Claims, the claimants are not
required to prove the case as required to be done in a
criminal trial. The Hon’ble Supreme Court in the case of
Parameshwari V/s Amir Chand and others, reported in
(2011) SCC 635, has clearly held that, “in a road accident
claim cases the strict principle of proof as in a criminal case
are not required.”
17. The Hon’ble Supreme Court, in the case of Bimla Devi
and others V/s Himachal Road Transport Corporation
and others, reported in (2009) 13 SCC 513, has clearly held
that, “in a case relating to the Motor Accident Claims, the
claimants are merely required to establish their case on
touch stone of preponderance of probability and the
20 MVC No.2511/2022
standard of proof on beyond reasonable doubt could not be
applied.”
18. Therefore, in the light of observations made in the
above cited decisions and for the reasons stated above, this
Court is of the considered opinion that, the petitioner has
successfully proved that, she has sustained injuries in a
motor vehicle accident, occurred on 13-02-2022 at about
10:30 a.m., on NH-04 Bengaluru-Hiriyur road, near Ravi
Dhaba, Adivala Village, Hiriyur Taluk, Chitradurga District,
due to the rash and negligent driving of the driver of car
bearing Reg. No.KA-04-MR-5890. But, the petitioner has
failed to prove that, she has sustained grievous injury in the
said accident. As per the Ex.P.6 wound certificate and other
medical records, the petitioner has sustained simple
injuries. Hence, I answer Issue No.1 in Partly Affirmative.
19. Point No.2: While answering above point this Court
has come to conclusion that, the petitioner has successfully
21 MVC No.2511/2022
proved that, the accident has caused due to rash and
negligent driving of the driver of car bearing Reg. No.KA-04-
MR-5890 and she has sustained simple injuries in the said
accident. The petitioner has sustained lacerated wound of
3×1 c.m., behind left eye and abrasion of 3×2 c.m., over left
side of neck. Therefore, this Court is of the further opinion
that, the petitioner is entitled for compensation under
various heads. The damages are to be assessed under two
heads i.e. pecuniary damages, such as medical treatment,
attendants, transport, actual loss of earning, future loss of
earning etc., and non pecuniary damages, such as mental
and physical shock, loss of amenities, loss of expectation of
life, loss of prospects of marriage etc. But, there is
absolutely no evidence placed on record by the petitioner to
show that, she has suffered any disability or deformity due
to above injuries. The petitioner has neither examined any
doctor, nor she has produced any document for the
purpose of assessing the above pecuniary and non-
22 MVC No.2511/2022
pecuniary damages. In such circumstances, there is no
other option before this Court, except to consider global
compensation in general.
20. As per Ex.P.6 wound certificate, the petitioner has
sustained lacerated wound of 3×1 c.m., behind left eye and
abrasion of 3×2 c.m., over left side of neck. The above said
injuries are simple in nature. As per Ex.P.10 discharge
summary, the petitioner has taken treatment as in-patient
for 5 days from 13-02-2022 to 17-02-2022, in Sparsh
Hospital, Bengaluru. The petitioner has deposed that, she
has spent Rs.70,000/- towards medicine, conveyance,
attendant charges and nourishment. In order to prove the
same, she has produced 6 medical bills, as per Ex.P.14. All
the bills have been examined carefully and found that the
petitioner has spent total amount of Rs.14,525/- towards
medical expenses.
23 MVC No.2511/2022
21. Further, the petitioner has deposed in her evidence
that, earlier to the accident she was studying in 10th
standard, at Lourdes High School, Nanjundeshwara Nagar,
Bengaluru and she was brilliant student and very good at
her studies and due to accidental injuries, she could not
perform well in her annual examination, she is undergoing
deep mental shock, pain and sufferings, untold hardship,
getting pain over left arm, she cannot lift or carry weights,
cannot concentrate on her studies, cannot participate in
sports & extracurricular activities, cannot ride bicycle and
cannot do any work. But, the petitioner has failed to prove
the same. The petitioner has neither examined the doctor,
nor she has produced any document to show that, she has
suffered any permanent physical disability or deformity due
to injuries sustained in the accident. Such being the case, it
is difficult to ascertain pain and sufferings, laid up period,
conveyance charges, loss of amenities etc. No doubt, due to
above injuries the petitioner would have suffered some
24 MVC No.2511/2022
pain and sufferings and the same would have been
nourished with nutritious food and she might spent some
money for conveyance. In such circumstances, taking into
consideration the facts and circumstances of the case, even
though there is no documentary evidence placed on record
by the petitioner, taking into consideration the injuries and
pains suffered by the petitioner, on humanitarian ground
and in general-globally, this Court is of the opinion that,
some suitable compensation is required to be awarded to
the petitioner. Accordingly, awarding compensation of
Rs.50,000/- to the petitioner, including medical expenses,
would meet the ends of justice. In all, petitioner is entitled
for compensation of Rs.50,000/- with interest at the rate of
6% per annum from the date of petition till its realization.
22. Liability: Admittedly, as on the date of accident, the
respondent No.1 is the owner and respondent No.3 is the
insurer of the offending vehicle. Further, the evidence
placed on record by the petitioner clearly establishes that,
25 MVC No.2511/2022
due to rash and negligent driving of the driver of offending
car bearing Reg. No. KA-04-MR-5890, the accident in
question has occurred and the petitioner has sustained
simple injuries in the said accident. In such circumstances,
the respondent No.1 being the owner of said vehicle is
vicariously liable to compensate for the damage caused by
the said vehicle. The respondent No.3 being the insurer of
the vehicle has to indemnify the respondent No.1.
23. The respondent No.3 has taken a contention that, the
respondent No.1 has handed over her offending vehicle to
her husband namely Afroz Khan S/o Hussain Khan, who was
not having valid and effective driving licence to drive the
said vehicle, as on the date of accident. The driving licence
of said Afroz Khan S/o Hussain Khan was valid for the
period from 18-05-2001 to 17-05-2021. The said driving
licence has expired on 17-05-2021 and thereafter, it has not
been renewed. Therefore, it is clear that, as on the date of
accident i.e., on 13-02-2022 the accused/driver of offending
26 MVC No.2511/2022
car was not holding valid and effective driving licence to
drive the insured vehicle. Further it is contended that, in
order to have wrongful gain the petitioner colluding with
the police authority and respondents No.1 and 2 has
managed to file the charge-sheet against the accused,
without invoking Section 3(1), 180, 181 of Motor Vehicles
Act. Hence, it is not liable to pay any compensation to the
petitioners.
24. The learned counsel for respondent No.3 insurance
company vehemently argued that, the Ex.R.6 Insurance
Policy clearly speaks that, the policy covers the risk provided
the driver of insured vehicle holds an effective driving
licence at the time of accident and he is not disqualified
from holding or obtaining such a licence. The respondent
No.1 has not produced any document to show that, as on
the date of accident the driver of offending vehicle was
holding valid & effective driving licence to drive the said
vehicle. In such circumstances, the respondent No.1/owner
27 MVC No.2511/2022
of offending vehicle, who has consciously handed over his
vehicle to a person who did not possess driving licence
cannot be permitted to take the benefit of her wrong and
the respondent No.3/Insurance Company is entitled to raise
a defence under Sec.149(2) of Motor Vehicles Act and it is
not liable to indemnify the insured. In support of his
arguments, the learned counsel for respondent No.3 has
relied on the following decisions:
i. Hemalatha @ Hema @ Hemavathi W/o
Renukappa and others V/s Bajaj Allianz
General Insurance Company Ltd., and
another, in MFA No.6154/2019 (MV-D),
dated 14-12-2023.
ii. M/s Tata AIG General Insurance Co. Ltd.,
V/s Sri Manjunatha S/o Late Devaraja, in
MFA No.7018/2023 (MV-D) C/W MFA
No.2658/2024 (MV-D).
28 MVC No.2511/2022
25. On the other hand, the learned counsel for petitioner
vehemently argued that, it is settled principle of law that,
the insurance company is liable to pay the third party and
recover from the insured, even if there is a fundamental
breach of any condition recognised under Sec.149(2) of
Motor vehicles Act.
26. In the given facts and circumstances of the case, it is
relevant to refer the decision of the Hon’ble High Court of
Karnataka, in the case of New India Assurance Co. Ltd.,
Bijapur by its Divisional Manager V/s Yallavva and
another, reported in ILR 2020 Kar 2239, wherein the
Hon’ble High Court has clearly held that, ” i) Having regard
to Section 149(1) R/w Section 149(7), whenever a case
falls under Section 149(2)(a) and the same is successfully
established or proved by the Insurance Company, as per
the twin tests laid by the Hon’ble Supreme Court in
Swaran Singh, nevertheless, the insurer or Insurance
Company is liable to satisfy the award vis-à-vis a third
29 MVC No.2511/2022
party and is entitled to recover from the insured. This is
irrespective of, the policy being an Act policy in terms of
Section 147 pertaining to compulsory coverage of risks
of third parties and other classes of persons stated
therein or a policy covering other risks by specific
contract being entered into in that regard and where
additional premium is paid by the insured i.e., a
contractual policy.
ii) The Insurer is liable to pay the third party and
recover from the insured even if there is breach of any
condition recognized under Section 149 (2), even if it is a
fundamental breach (that is breach of condition which
is the cause for the accident) and the insurer proves the
said breach in view of the mandate under Section 149(1)
of the Act. But, no such order can be passed against the
insurer, if, on the facts and circumstances of a case, a
finding is given by the court that the third party (injured
or deceased) had played any fraud or was in collusion
30 MVC No.2511/2022
with the insured, individually or collectively, for a
wrongful gain to themselves or cause wrongful loss to
the insurer.
iii) The Court can also fasten the absolute liability
on the insurer, if there is any breach of condition which
is enumerated under Section 149(2) of the Act or any
other condition of the policy if the Insurance Company
has waived breach of any such condition or has taken
the special responsibility to pay by collecting extra
premium by covering any type of risk depending upon
facts of each case.
iv) Thus, the rule of pay and recover is applicable
in view of the mandate in Section 149(4) of the Act and
even if there is a breach of the terms of the insurance
policy, the insurer is bound to satisfy the judgment and
award as if it were a judgment debtor, even if it satisfies
the twin tests enunciated by the Hon’ble Supreme Court
under Section 149(4)(a) of the Act.
31 MVC No.2511/2022
v) Before passing any order on the Insurance
Company to pay and recover, the Court has to examine
the facts and circumstances of each case and if it finds
that the victim, injured or the deceased, in a particular
case, was solely or jointly responsible for breach of such
fundamental condition by playing fraud or in collusion
with the insured, the Court may exercise its discretion
not to fasten the liability on the insurer.
vi) However, the court should not adopt the above
guideline as a general rule in all cases, but only under
peculiar facts and circumstances of each case and on
giving appropriate reasons.
vii) If the Insurance Company makes out a case
under Section 149(2)(b) of the Act, then also the
Insurance Company has to satisfy the award so far as
Rs.9,92,968/ third party is concerned, as it is the duty of
the Insurance Company to indemnify the insured on the
basis of the policy of the insurance and even when the
32 MVC No.2511/2022
contract of insurance itself is void, nevertheless the
liability to indemnify the insured would arise and
insurer is entitled to recover from the insured.
viii) Thus, in a case where Section 149(2)(b) applies
and the Insurance Company successfully establishes
that the policy is void, in such a case also, the insurer is
not absolved of its liability to satisfy the judgment or
award as rights or obligations would flow even from a
policy which is void vis-à-vis third party. In such a case,
the insurer is not completely absolved of its liability, the
insured would have to satisfy the award vis-à-vis the
third party and recover from the insured the amount
paid to the third party and may also have a right to seek
damages from the insured.
ix) The judgment of the Division Bench of this
Court in Subramanyam, holding that a pay and recovery
order cannot be made as there is no liability to pay or
satisfy the award or decree in respect of a case falling
33 MVC No.2511/2022
under Section 149(2) is not correct. Hence, that portion
of the judgment in Subramanyam, which states that if
the case falls within the scope of Section 149(2) of the
Act and the insurer is successful in establishing any of
the defence as stated therein, it would be completely
absolved of its liability to satisfy the award is also not
correct and to that extent, it is held to be bad in law.”
27. In the present case, admittedly as on the date of
accident, the insurance policy issued by respondent No.3 in
respect of offending car bearing No.KA-04-MR-5890 was
valid from 07-05-2021 to 06-05-2022. But, admittedly as on
the date of accident, the driver of offending car was not
holding valid and effective driving licence to drive the said
vehicle. The oral evidence of R.W.1, who is the First Division
Assistant of R.T.O., Bengaluru West and the document
produced by him, which is marked as Ex.R.2, clearly goes to
show that, as on the date of accident i.e. 13-02-2022, the
driver of offending car bearing No.KA-04-MR-5890 was not
34 MVC No.2511/2022
holding valid and effective driving licence to drive the said
vehicle, as the licence issued in his favour was valid from
18-05-2001 to 17-05-2021 and thereafter it is not renewed.
Hence, there is clear breach of fundamental condition of
insurance policy by the owner of offending vehicle i.e.
respondent No.1. But, there is absolutely no evidence on
record to show that, the respondent No.1/owner of
offending vehicle was having knowledge that, as on the
date of accident her deceased husband/driver of offending
vehicle was not holding valid and effective driving licence to
drive the said vehicle and she has consciously entrusted her
vehicle to him to drive. Further, it is pertinent to note that,
the Ex.R.6 insurance policy is issued on 06-05-2021, which is
prior to commencement of Motor Vehicle (Amendment) Act,
2019. As per provision of Sec.147(4) of Motor Vehicle Act,
1988, if the insurance policy is issued prior to
commencement of Motor Vehicle (Amendment) Act, 2019,
the provision of this Act earlier to amendment would apply.
35 MVC No.2511/2022
Under such circumstances, it can be said that, even if the
driver of the offending vehicle was not holding valid and
effective driving licence to drive the said vehicle, as on the
date of accident, while exonerating the insurance company
from its liability, the respondent No.3 insurance company
would be liable to pay the compensation under pay and
recovery clause, which was available prior to
commencement of Motor Vehicle (Amendment) Act, 2019.
In such circumstances, the arguments advanced by the
learned counsel for respondent No.3 does not hold good
and the ratio laid down in the above decisions relied by him
are not applicable to the case in hand, as the facts and
circumstances in those cases and the facts and
circumstances in the present case are totally different and
there is no evidence on record to show that, the respondent
No.1/owner of offending vehicle had consciously handed
over her vehicle to a person who did not possess valid and
effective driving licence. Therefore, in the light of ratio laid
36 MVC No.2511/2022
down by the Hon’ble High Court of Karnataka, in the above
referred case of New India Assurance Co. Ltd., Bijapur by
its Divisional Manager V/s Yallavva and another and for
the above stated reasons, this Court is of the considered
opinion that, the respondent No.3 being the insurer of the
offending vehicle is primarily liable to pay the above
compensation amount to the petitioner and later recover
the same from the owner of offending vehicle/respondent
No.1. Accordingly, holding that the petitioner is entitled for
compensation of Rs.50,000/-, with interest at the rate of 6%
per annum, from the respondent No.3, from the date of
petition till its realization, I answer Issue No.2 in Partly
Affirmative.
28. Issue No.3: In view of the above findings, I proceed to
pass the following order:
ORDER
The petition is partly allowed with
costs.
37 MVC No.2511/2022
The petitioner is entitled to
compensation of Rs.50,000/- (Rupees
fifty thousand only) with interest at the
rate of 6% p.a., from the date of
petition till realisation.
The respondents No.1 and 3 are
jointly and severally liable to pay the
above compensation amount to the
petitioner. However, the primary
liability to pay the compensation
amount is fastened on respondent No.3
– Insurance Company and it is directed
to pay the said amount within two
months and recover the same from the
respondent No.1, in the very
proceedings by filing an execution
petition.
The entire compensation amount
with proportionate interest shall be
deposited in the name of petitioner as
fixed deposit in any nationalized bank,
till she attains the age of majority.
Advocate’s fee is fixed at Rs.2,000/-.
38 MVC No.2511/2022
Draw award accordingly.
(Dictated to the stenographer, directly on computer, typed by him,
corrected and then pronounced in the open court this the 16 th day of June,
2025)(Mohammed Yunus Athani)
Member, MACT, Bengaluru.
ANNEXURE
Witnesses examined on behalf of petitioner:
P.W.1: Shaik Fareed S/o Late Sabjan Sab P.W.2: Kalaiyarasi M. S/o Murugesh M.
Documents marked on behalf of petitioner:
Ex.P.1: True copy of F.I.R
Ex.P.2: True copy of First Information Statement
Ex.P.3: True copy of Sketch
Ex.P..4: True copy of Spot Mahazar
Ex.P.5: True copy of M.V.A. Report
Ex.P.6: True copy of Wound Certificate
Ex.P.7: True copy of Charge-sheet
Ex.P.8 & 9: Notarized copy of Aadhar Cards of P.W.1
and petitioner
Ex.P.10: Discharge Summary
Ex.P.11: Out-patient Record
Ex.P.12: MRI Scanning Report
39 MVC No.2511/2022
Ex.P.13: Lab Reports (total 15)
Ex.P.14: Medical Bills (total 6) Rs.14,525/-
Ex.P.15: Authorization Letter
Ex.P.16: Police Intimation
Ex.P.17: Copy of MLC Extract
Ex.P.18: In-patient File
Witnesses examined on behalf of respondents
R.W.1: Lakshmikanth Y.D. S/o Dyamappa
R.W.2: Chaitresh D. Habbu S/o Late Divakar Habbu
Documents marked on behalf of respondents
Ex.R.1: Authorization Letter
Ex.R.2: True copy of Driving Licence Register
Extract
Ex.R.3: Certified copy of Notice issued to owner of
insured vehicle
Ex.R.4: Certified copy of Postal Acknowledgment
Ex.R.5: Certified copy of Reply Notice
Ex.R.6: True copy of Insurance Policy
(Mohammed Yunus Athani)
Member, MACT, Bengaluru.
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