Bangalore District Court
Amanath Khan vs Reshma Parveen on 16 June, 2025
KABC020144692022
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.2512/2022
Dated this 16th day of June, 2025
Petitioner: Amanath Khan S/o Late Afroz Khan,
Aged about 11 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,
Nandini Layout, Bengaluru - 96.
2 MVC No.2512/2022
(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.10,00,000/- from
3 MVC No.2512/2022
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 his 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 the 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 his grandmother died during the
course of treatment on the same day. The petitioner and
4 MVC No.2512/2022
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 he was shifted to Sparsh Hospital, Bengaluru, wherein
he took treatment as an in-patient. Earlier to the accident,
he was studying in 4th standard, at Lourdes High School,
Nanjundeshwara Nagar, Bengaluru and he was brilliant
student and very good at his studies. Due to accidental
injuries and permanent physical disability, he did not attend
the classes for his remaining academic year and did not
perform well in his annual examination, which has affected
his educational career and bright future. He is undergoing
deep mental shock, pain and sufferings, untold hardship,
getting pain over left arm, he cannot lift or carry weights,
cannot concentrate on his 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 have
5 MVC No.2512/2022
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.10,00,000/- 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.2512/2022
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.2512/2022
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.2512/2022
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 him. 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, he
9 MVC No.2512/2022has 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 his case, the petitioner has got
examined his grandfather/natural guardian as P.W.1 and
got marked total 13 documents as Ex.P.1 to 13. Further, he
has got examined one more witness namely Dr. B.
Vishwanath 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
10 MVC No.2512/2022
R.W.2 and got marked 6 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: 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
his 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 his father Afroz Khan. While so proceeding, near
11 MVC No.2512/2022
Ravi Dhaba, Adivala Village, Hiriyur Taluk, Chitradurga
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 his 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, he was studying in
4th standard, at Lourdes High School, Nanjundeshwara
Nagar, Bengaluru and he was brilliant student and very
good at his studies. Due to accidental injuries and suffering
permanent physical disability, he could not perform well in
his annual examination, he is undergoing deep mental
shock, pain and sufferings, untold hardship, getting pain
over left arm, he cannot lift or carry weights, cannot
concentrate on his studies, cannot participate in sports &
12 MVC No.2512/2022
extracurricular activities, cannot ride bicycle and cannot do
any work.
11. In order to prove his case, the petitioner has got
examined his 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 his oral evidence the petitioner has
got marked total 13 documents as Ex.P.1 to 13. 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
is notarised copy of Aadhar card, Ex.P.9 is out-patient
record, Ex.P.10 are medical bills (total 2), Ex.P.11 are x-rays
(total 3), Ex.P.12 is x-ray and Ex.P.13 is OPD book.
13 MVC No.2512/2022
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 and other inmates have
sustained grievous injuries and the driver of said car Afroz
Khan has died on the spot. The petitioner has sustained
supra condylar fracture of left humerus. 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
grievous injuries in the said accident.
13. At the outset, is it pertinent to note that, in the
present case, the date, time and place of accident,
14 MVC No.2512/2022
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
and documentary evidence placed on record by the
petitioner with respect to rash and negligent driving of the
15 MVC No.2512/2022
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
place due to negligence of the driver of the offending
vehicle.
16 MVC No.2512/2022
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
driving of the driver of offending vehicle. Further, the
investigation officer has clearly stated in his final report
17 MVC No.2512/2022
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
rash and negligent driving of the driver of offending car
bearing Reg. No.KA-04-MR-5890.
18 MVC No.2512/2022
15. Further, on meticulously going through the Ex.P.6
wound certificate, Ex.P.9 out-patient record, Ex.P.11 and 12
x-rays (total 4) and Ex.P.13 OPD book, it clearly reveals that,
the petitioner has suffered grievous injury in a road traffic
accident and he has suffered supra condylar fracture of left
humerus and for the said injury he has taken conservative
treatment. The same is deposed by P.W.2, who is the
doctor, who has clinically examined the petitioner for the
purpose of assessment of disability. 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 petitioner
19 MVC No.2512/2022
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 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.2512/2022
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, he has sustained grievous 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. Hence, I answer
Issue No.1 in Affirmative.
19. Point No.2: While answering above point this Court
has come to conclusion that, the petitioner has successfully
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 he has sustained grievous injury. As per the
21 MVC No.2512/2022
medical records placed on record by the petitioner, he has
sustained supra condylar fracture of left humerus and for
the said injury he has taken conservative treatment.
Therefore, this Court is of the further opinion that, the
petitioner is entitled for compensation under various heads.
To prove his age, the petitioner has produced the notarised
copy of her Aadhar card, which is marked as Ex.P.8. As per
Ex.P.8, the date of birth of the petitioner is 27-10-2011. The
accident has taken place on 13-02-2022 at about 10.30 A.M.
Therefore, the age of the petitioner as on the date of
accident was 10 years. In the case on hand, petitioner is
admittedly a minor of the age of 10 years as on the date of
accident and he has sustained grievous injury in the said
accident. 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
22 MVC No.2512/2022
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.
20. In the present 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 Master Karthik R. S/o V.
Rajababu V/s National Insurance Co. Ltd., and another,
reported in MFA No.426/2020 (MV-I) C/w MFA
No.4124/2020 (MV-I) and MFA No.7008/2021 (MV-I), dated
27-09-2024. In the said decision, at Para No.25, the Hon’ble
High Court has clearly held that:
“25. In light of the fact that, the Apex
Court has accepted that, the minor would
suffer a pecuniary loss and has awarded
compensation under this account in the case in
Kajal’s case and Ayush’s case and it has held
that, the minor should be awarded non-
pecuniary loss for the injuries suffered in
Master Mallikarjun’s case, the ideal method for
determining the compensation for minor
would be to combine both the components i.e.
compensation for the pecuniary loss (as
determined in Kajal’s and Ayush’s cases) and
also for the non-pecuniary loss (as determined
23 MVC No.2512/2022in Master Mallikarjun ‘s case). This
methodology in determining the
compensation would essentially take care of
both the pecuniary and non pecuniary loss
that a child would suffer as a result of a
disability and would therefore constitute ‘just
compensation’ as contemplated under the M.V.
Act.”
21. In the light of above decision of the Hon’ble High
Court of Karnataka, the petitioner is entitled to
compensation under the following heads:
i) Loss on future income: The petitioner has
averred that due to accidental injuries, he has sustained
grievous injury and he has suffered disability. Further, the
P.W.2, who is the doctor, who has examined the petitioner
for the purpose of assessment of disability, has clearly
deposed in his examination-in-chief affidavit that, on clinical
examination he found that, the petitioner has suffered
supra condylar fracture of left humerus and for the said
injury the petitioner has taken conservative treatment.
Further he has deposed that, on clinical and radiological
24 MVC No.2512/2022
examination of injuries suffered by the petitioner he found
that, the petitioner has suffered permanent physical
disability of 30% to the left upper limb and 10% to the
whole body. The Ex.P.6 wound certificate, Ex.P.9 outpatient
record, Ex.P.11 and 12 x-rays (total 4) and Ex.P.13 OPD book
are clear evident that, the petitioner has suffered the above
mentioned injury and he has taken conservative treatment
for the said injury. Though, the learned counsel for
respondent No.3 has cross-examined P.W.2 in length,
nothing worth has been elicited from his mouth which
creates doubt on the veracity of his evidence. Further, he
has clearly denied the suggestions made in the cross-
examination that, there is no disability suffered by the
petitioner and he has exaggerated the percentage of
disability. But, it is pertinent to note that, the P.W.2 has
deposed in his evidence that, the accident has occurred on
13-02-2022 and he has assessed the disability to the
petitioner on 11-01-2024, which is after lapse of one year
25 MVC No.2512/2022
and 10 months from the date of injuries caused to the
petitioner. Further, it is pertinent to note that, P.W.2 has
clearly deposed in his evidence that, fracture of supra
condylar area of left humerus is healed and united.
Therefore, considering the age of the petitioner, injuries
sustained, duration of treatment and oral and documentary
evidence on record, this Court is of the opinion that,
considering the disability of 8% to the whole body of the
petitioner would be justified. Hence, in the instant case the
disability of 8% to the whole body of the petitioner is
considered. In the present case, the accident has taken
place on 13-02-2022 at about 10:30 a.m.. As the accident
has taken place in the year 2022, the notional income of the
petitioner, as indicated in the tabular column of Table-I, at
Page No.25 Para No.44 of the judgment in Master Karthik
R. S/o V. Rajababu V/s National Insurance Co. Ltd., and
another, is considered at Rs.2,48,475/- per annum. Further,
as per the ratio laid down in the case of Sarla Verma and
26 MVC No.2512/2022
others V/s Delhi Transport Corporation and another,
reported in 2009 ACJ 1298, the appropriate multiplier for a
person whose is aged about 10 years is 18. Accordingly, the
loss of future income would be total annual income X
disability/100 X multiplier = Rs.2,48,475 X 8/100 X 18 =
Rs.3,57,804/-.
ii) Food, nourishment and incidental charges:
As per Ex.P.9 out-patient record, the petitioner has taken
conservative treatment as out-patient in Sparsh Hopsital,
Bengaluru. His parents might have spent considerable
amount towards food and nourishment during that period.
Therefore, compensation of Rs.5,000/- is awarded towards
food and nourishment charges.
iii) Medical expenses: In this case the petitioner
has sustained grievous injury. As per Ex.P.9 out-patient
record, the petitioner has taken conservative treatment as
out-patient in Sparsh Hopsital, Bengaluru. The petitioner
has deposed that, he has incurred expenses of Rs.40,000/-
27 MVC No.2512/2022
towards medical, conveyance, food & nourishment,
attendant charges and other incidental charge. In order to
prove the same, he has produced 2 medical bills, as per
Ex.P.10. All the bills have been examined carefully and
found that the petitioner has spend total amount of
Rs.2,020/- towards medical expenses. Therefore, this Court
is of the opinion that, the petitioner is entitled for Rs.2,020/-
under the head of medical expenses.
iv) Conveyance expenses: The petitioner is the
resident of Nanjundeshwar Nagar, Nandini Layout,
Bengaluru, the accident has taken place on NH-04
Bengaluru-Hiriyur road, near Ravi Dhaba, Adivala Village,
Hiriyur Taluk, Chitradurga District and he has taken
treatment at Sparsh Hospital, Bengaluru. Taking into
consideration the distance in between all the above three
places, compensation of Rs.5,000/- is awarded towards
conveyance.
28 MVC No.2512/2022
v) Future medical expenses: There is no
evidence on record to show that, the petitioner requires any
further treatment for the injury sustained by him in the said
accident. Even, the P.W.2 has not stated anything with
respect to same. In such circumstances, the question of
awarding future medical expenses does not arise at all.
Therefore, no compensation is awarded in this particular
head.
vi) Non-pecuniary loss: With regard to the
compensation for non-pecuniary loss, as the accident in the
present case has taken place in the year 2022, the
petitioner is entitled for compensation of Rs.1,60,358/-, as
indicated in the tabular column of Table-II, at Page No.30
Para No.55 of the above judgment in Master Karthik R. S/o
V. Rajababu V/s National Insurance Co. Ltd., and
another.
22. Hence, the petitioner is entitled to the compensation
under different heads as follows :
29 MVC No.2512/2022
1. Loss of future income 3,57,804-00
2. Food, nourishment and 5,000-00
incidental charges
3. Medical expenses 2,020-00
4. Conveyance expenses 5,000-00
5. Future medical expenses Nil
6. Non-pecuniary loss 1,60,358-00
Total 5,30,182-00
In all, petitioner is entitled for compensation of
Rs.5,30,182/- with interest at the rate of 6% per annum
from the date of petition till its realization.
23. 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,
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
grievous injuries in the said accident. In such
30 MVC No.2512/2022
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.
24. 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
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
31 MVC No.2512/2022
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.
25. 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
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
32 MVC No.2512/2022
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).
26. 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
33 MVC No.2512/2022
breach of any condition recognised under Sec.149(2) of
Motor vehicles Act.
27. 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
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
34 MVC No.2512/2022
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
with the insured, individually or collectively, for a
wrongful gain to themselves or cause wrongful loss to
the insurer.
35 MVC No.2512/2022
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.
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
36 MVC No.2512/2022
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
contract of insurance itself is void, nevertheless the
liability to indemnify the insured would arise and
insurer is entitled to recover from the insured.
37 MVC No.2512/2022
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
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
38 MVC No.2512/2022
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.”
28. 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
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.
39 MVC No.2512/2022
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.
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
40 MVC No.2512/2022
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
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
41 MVC No.2512/2022
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.5,30,182/-, 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.
29. Issue No.3: In view of the above findings, I proceed to
pass the following order:
ORDER
The petition is partly allowed with
costs.
The petitioner is entitled to
compensation of Rs.5,30,182/- (Rupees
five lakh thirty thousand one hundred
and eighty two only) with interest at
42 MVC No.2512/2022the 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 from the date of this order and
recover the same from the respondent
No.1, in the very proceedings by filing
an execution petition.
Out of the compensation amount
awarded to the petitioner, 80% of the
compensation amount with
proportionate interest shall be
deposited in the name of petitioner as
fixed deposit in any nationalized bank,
till he attains the age of majority and
the remaining 20% amount with
proportionate interest shall be released
in favour of the natural
43 MVC No.2512/2022guardian/grandfather of the petitioner
through e-payment on proper
identification and verification.
Advocate's fee is fixed at
Rs.2,000/-.
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: Dr. B. Viswanath S/o M. Basappa
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
44 MVC No.2512/2022
Ex.P.7: True copy of Charge-sheet
Ex.P.8: Notarized copy of Aadhar Card
Ex.P.9: Outpatient Record
Ex.P.10: Medical Bills (total 2) Rs.2,020/-
Ex.P.11: X-rays (total 3)
Ex.P.12: X-ray
Ex.P.13: OPD Book
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.