Bangalore District Court
Lokesh.A.R. Alias Lokesha vs Iffco Tokio Gen Ins Co Ltd on 14 February, 2025
KABC020095092019
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 Additional Court of Small Causes
& Member, MACT, Bengaluru.
MVC No.1992/2019
Dated this 14th day of February, 2025
Petitioners: 1. Lokesh A.R. @ Lokesha S/o Rudrappa,
Aged about 48 years,
2. Sakamma W/o Lokesh A.R. @
Lokesha,
Aged about 42 years,
3. Sachin A.L. S/o Lokesh A.R. @
Lokesha,
Aged about 23 years,
All are residing at Amruthi,
Melkote Hobli, Nyamanahalli Post,
Pandavapura Taluk, Mandya District.
Presently residing at Alakere Village,
Keragod Hobli, Mandya Taluk and
District.
(Sri S. Jayanna, Advocate)
2 MVC No.1992/2019
V/s
Respondents: 1. IFFCO Tokio General Insurance
Company Ltd., CSC-141,
Srishanthi Towers, 4th Floor,
3rd Main, East of NGEF Layout,
Kasturinagar, Bengaluru - 560 048,
Branch Office: Cunningham road,
Bengaluru.
(Policy No.1-8ZCJS72 P400
Policy 68048666,
valid from 12-11-2016 to
11-11-2017)
(Sri Sharanappa Gowda, Advocate)
2. George Prabhu K. S/o Kulandaisany
Santhiago,
No.10, 8th Cross, Prasanthnagar,
Bengaluru - 560 079.
Office Address:
George Prabhu K.,
Prop: M/s. KP Steel,
Chikkagollarahalli, 16th KM,
Magadi Road, Bengaluru.
(RC owner of Skoda Laura Car
No.KA-01-ME-8717)
(Sri H.N.C. Kumar Gowda, Advocate)
3 MVC No.1992/2019
JUDGMENT
This is petition filed under Section 166 of Motor
Vehicles Act, 1988, seeking compensation of Rs.40,00,000/-
from the respondents, on account of death of Sagar, who is
son of petitioners No.1 and 2 and brother of petitioner No.3,
in a road traffic accident.
2. The brief facts of the case are as follows:
On 06-08-2017 at about 10.00 a.m., the deceased Sagar
and Dilip were proceeding in a Goods vehicle bearing No.KA-
02-AE-9642, on Bengaluru-Mysore highway road, towards
Mysore direction, driven by its driver slowly, carefully, on the
left side of the road, observing the traffic rules. When they
were at Kolli circle, Maddur Town, the driver of the Skoda car
bearing Reg. No.KA-01-ME-8717 came from the opposite
direction i.e., from Mysore to Bengaluru side, with high
speed, in rash and negligent manner, so as to endanger
human life, without observing road traffic rules and suddenly
took turn towards right side (wrong side) of the road, lost
4 MVC No.1992/2019control over his car, jumped the divider and hit to the front
portion of the goods vehicle of the deceased. Due to said
impact the goods vehicle turned rounds and collided to the
on going car bearing No.KA-16-N-3509. Due to dashing of
Skoda car to the goods vehicle, the inmates of said car died
on the spot. Whereas, the deceased Sagar who was the
inmate of goods vehicle sustained severe head injuries and
succumbed to said injuries on the way to Government District
Hospital, Mandya. Earlier to the accident, the deceased was
working as mason and agriculturist and was earning a sum of
Rs.30,000/- per month. He was contributing his entire
earnings to his family. Due to untimely death of a sole bread
earner, the petitioners are struggling for their livelihood. The
Maddur Traffic Police have registered the case against the
driver of the said Skoda car for the offences punishable under
Section 279, 337 and 304(A) of I.P.C. The respondent No.1 is
the insurer and respondent No.2 is the owner of the
offending vehicle. Hence, they are jointly and severally liable
5 MVC No.1992/2019to pay the compensation to the petitioners. Therefore, it is
prayed to allow the petition and award compensation of
Rs.40,00,000/- with interest.
3. On service of notice to the respondents, the
respondents No.1 and 2 have appeared through their
counsel and filed their separate written statements.
4. The respondent No.1 in its written statement has
denied all the allegations made in the petition. It has
admitted the issuance of private car package policy
No.68048666 in respect of the car bearing Reg. No.KA-01-ME-
8717 in favour of respondent No.1 and its validity as on the
date of accident. It has contended that, the petition is bad for
non compliance of provision under Sections 134(C) and 158(6)
of Motor Vehicles Act. The petition is bad for non-joinder of
proper and necessary parties as the insurer and insured of
the goods vehicle bearing No.KA-02-AE-9642 and car bearing
No.KA-16-N-3509 and also the driver of the insured vehicle
6 MVC No.1992/2019
are not made party to this proceedings. Further it is
contended that, the petition is bad for non-joinder of
necessary party, such as the current owner of the insured
vehicle. The insured vehicle was sold before the date of
accident to Shabeer Ahmed S/o Mahamed Dastagir, who is
the necessary party to the proceedings. As per Section 157 of
Motor Vehicles Act, once the vehicle is sold, within fifteen
days necessary changes are required to be made in the
policy, otherwise the policy is considered to be void. Hence,
this claim petition is not maintainable against it. Further it is
contended that, the petitioner has filed one more petition in
MVC No.1210/2018, at MACT Mandya, on the same cause of
action. Hence, the present claim petition is not maintainable
and liable to be dismissed against it. Further, it has sought
permission to contest even on behalf of respondent No.2, as
per Section 170 of the Motor Vehicles Act. It has contended
that, at the time of accident, there was no fitness certificate to
the offending car. The alleged accident has occurred due to
7 MVC No.1992/2019
negligence of the deceased, as he was driving the goods
vehicle in rash and negligent manner, without observing
upcoming vehicles on the edge footpath of Bengaluru-
Mysore road, early morning at about 1.00 a.m., and dashed to
car bearing No.KA-01-ME-8717, which was moving on the
extreme left side of the road. The alleged accident has
occurred due to hitting of car bearing No.KA-16-N-3509 to the
front portion of goods vehicle bearing No.KA-02-AE-9642.
Further it is contended that, the driver of the car bearing
No.KA-01-ME-8717 did not possess driving licence to drive the
said vehicle and the owner knowing that his driver did not
possess valid driving licence has entrusted the said vehicle to
him and he has violated the terms and conditions of the
policy. The driver of the car bearing No.KA-16-N-3509 and
driver of goods vehicle bearing No.KA-02-AE-9642 both are
not having valid and effective driving licence to drive the said
vehicles as on the date of accident. It has denied the age,
income and avocation of the deceased. Further it is
8 MVC No.1992/2019
contended that, the compensation claimed is highly excessive
and exorbitant. For the above denials and contentions, it is
prayed to dismiss the petition.
5. Likewise, the respondent No.2 in his written statement
has denied all the allegations made in the petition. He has
admitted that, he is the RC owner of Skoda Laura car bearing
No.KA-01-ME-8717, which he purchased from the Vinayaka
Cars Private Limited, Bengaluru and he has sold the said car
to one Shabeer Ahmed S/o Mohammed Dastagir Sab and
handed over the possession of the said car on 07-01-2017.
Shabeer Ahmed has executed the documents such as delivery
note dated 17-01-2017, sale receipt dated 07-01-2017 and
other forms such as Form No.29, 30 in favour of the said
Shabeer Ahmed. The said Shabeer Ahmed has also executed
an affidavit dated 09-01-2017, confirming the purchase of the
Skoda Laura car bearing No.KA-01-ME-8717. He has also
approached the concerned R.T.O. and informed about the
sale of the said vehicle by filling up the form. As on the date
9 MVC No.1992/2019
of accident, he was not the owner of the said Skoda Laura car.
Further it is contended that, on enquiring Shabeer Ahmed he
informed that he had sold the said vehicle in favour of one
Yousuf and the said Yousuf has sold the same in favour of
Mohammed Farooq, who is the deceased in the alleged
accident. He has contended that, the said vehicle was insured
with respondent No.1 and the policy was valid as on the date
of accident. He is not the owner of the said car and one
Shabeer Ahmed was the owner of the said vehicle as on the
date of accident. He has denied the age, income and
avocation of the deceased. Further it is contended that, the
compensation claimed is highly excessive and exorbitant. For
the above denials and contentions, he has 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 petitioners prove that,
10 MVC No.1992/2019deceased Sagar has succumbed to the
injuries sustained in vehicular accident,
alleged to have been occurred on 06-
08-2017, due to the rash and negligent
driving of the driver of the Skoda Laura
car bearing Reg. No. KA-01-ME-8717 ?
2. Whether the petitioners are entitled to
compensation? If so, what is the
quantum and from whom ?
3. What order or Award ?
7. In order to prove their case, the petitioner No.1 has
got examined himself as P.W.1 and got marked total 12
documents as Ex.P.1 to Ex.P.12. On the other hand, the
respondent No.1 has examined the Police Inspector of
Keragudu Police Station and its Legal Manager as R.W.1 and
2 and got marked one document as Ex.R.1. The respondent
No.2 has not adduced any evidence on his behalf.
11 MVC No.1992/2019
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 petitioners that, on
06-08-2017 at about 10.00 a.m., when the deceased Sagar
and Dilip were proceeding in a Goods vehicle bearing No.KA-
02-AE-9642, on Bengaluru-Mysore highway road, driven by
its driver slowly, carefully, on the left side of the road, by
observing the traffic rules, at Kolli circle, Maddur Town, the
driver of the Skoda car bearing Reg. No.KA-01-ME-8717
came from the opposite direction in high speed, in rash and
negligent manner and suddenly took turn towards right side
12 MVC No.1992/2019
(wrong side) of the road, lost control over his car, jumped
the divider and hit to the front portion of the goods vehicle
of the deceased. Due to said impact the inmates of said car
died on the spot. Whereas, the deceased Sagar who was the
inmate of goods vehicle sustained severe head injuries and
succumbed to said injuries on the way to Government
District Hospital, Mandya. Further it is contended that,
earlier to the accident, the deceased was working as mason
and agriculturist and was earning a sum of Rs.30,000/- per
month. He was contributing his entire earnings to his family.
Due to untimely death of a sole bread earner, the petitioners
are struggling for their livelihood.
11. In order to prove their case, the petitioner No.1 has
got examined himself as P.W.1 by filing examination-in-chief
affidavit, wherein he has reiterated the entire averments
made in the petition. Further, in support of their oral
evidence, the petitioners have got marked total 12
documents as Ex.P.1 to 12. Out of the said documents,
13 MVC No.1992/2019
Ex.P.1 is true copy of F.I.R. and first information statement,
Ex.P.2 is true copy of charge-sheet, Ex.P.3 is true copy of
spot mahazar, Ex.P.4 is true copy of sketch, Ex.P.5 is true
copy of motor vehicle accident report, Ex.P.6 is true copy of
inquest, Ex.P.7 is true copy of post-mortem report, Ex.P.8 is
notarised copy of Aadhar card of the deceased, Ex.P.9 is
notarised copy of Voter Identity card of petitioner No.1,
Ex.P.10 is notarised copy of Aadhar card of petitioner No.2,
Ex.P.11 is notarised copy of Aadhar card of petitioner No.3
and Ex.P.12 is true copy of MLC extract.
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 occurred due to rash and negligent
driving of the driver of the Skoda car bearing Reg. No.KA-01-
ME-8717 and dashing the same to the oncoming goods
vehicle, in which the deceased was traveling. Further it
reveals that, in the said accident the deceased Sagar has
sustained grievous injuries and succumbed to said injuries
14 MVC No.1992/2019
on the way to the hospital. The investigation officer in his
Ex.P.2 final report/charge-sheet has clearly stated that, the
said accident is caused due to rash and negligent driving of
the driver of offending Skoda car bearing Reg. No.KA-01-ME-
8717.
13. At the outset, is it pertinent to note that, in the present
case, the date, time and place of accident, involvement of
offending Skoda car bearing Reg. No.KA-01-ME-8717 in the
accident, the issuance of insurance policy by the respondent
No.1 in respect to offending Skoda car and its validity as on
the date of accident, are not disputed by the respondents.
The respondent No.1 & 2 have specifically denied that, the
above averred facts and circumstances of the accident and
that the said accident has occurred due to rash and
negligent driving of the driver of Skoda car bearing Reg.
No.KA-01-ME-8717. Further, the respondent No.1 insurance
company has taken specific defence that, the alleged
accident has occurred due to rash and negligent driving of
15 MVC No.1992/2019
the deceased, as he was driving the goods vehicle in rash
and negligent manner, without observing upcoming vehicles
on the edge of footpath of Bengaluru-Mysore road and
dashed to insured Skoda car bearing No.KA-01-ME-8717,
which was proceeding on the extreme left side of the road.
Further it is contended that, the said accident has occurred
due to hitting of car bearing No.KA-16-N-3509 to the front
portion of goods vehicle bearing No.KA-02-AE-9642. Further,
the respondent No.1 & 2 have taken specific defence that, as
on the date of accident the respondent No.2 was not the
owner of Skoda car bearing No.KA-01-ME-8717, as he had
already sold the said vehicle to one Shabeer Ahmed S/o
Mahamed Dastagir. But, the respondent No.1 & 2 have
failed to establish the said contentions. The respondent No.1
& 2 has neither adduced any evidence nor produced any
document to show that, as on the date of accident the
respondent No.2 was not the owner of Skoda car bearing
No.KA-01-ME-8717 and as had already sold the said vehicle
16 MVC No.1992/2019
to one Shabeer Ahmed S/o Mahamed Dastagir. Even he has
not stepped into witness box to depose the said contentions
on oath. Further, with respect to other contentions taken by
the respondent No.1, except the self serving statements of
R.W.2, who is the representative/Legal Manager of
respondent No.1 insurance company, there is absolutely no
other corroborative oral or documentary evidence produced
by the respondents No.2 to show that, the accident in
question has taken place due to rash and negligent driving
of the goods vehicle by the deceased. There is absolutely no
evidence on record to show that, at the time of accident the
deceased was driving the goods vehicle bearing No.KA-02-
AE-9642 and the said accident has occurred due to rash and
negligent driving of the deceased. There is absolutely no
evidence on record to show that, the said accident has
occurred due to dashing of goods vehicle bearing No.KA-02-
AE-9642 to the offending Skoda car bearing No.KA-01-ME-
8717. On the other hand, the oral and documentary
17 MVC No.1992/2019
evidence placed on record by the petitioners clearly
establishes that, the accident in question has occurred due
to rash and negligent driving of the driver of offending
Skoda car bearing Reg. No.KA-01-ME-8717 and dashing the
same to the oncoming goods vehicle, in which the deceased
was traveling. Further, the P.W.1 has unequivocally denied
all the suggestions made in his cross-examination. Though,
the learned counsel for respondent No.1 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.
14. Further, the Ex.P.3 spot mahazer and Ex.P.4 sketch
also clearly speaks that, the said accident has taken place on
extreme right side 35 feet wide Bengaluru to Mysore
national highway road, beside center median, infront of
Someshwara lodge, near Kolli circle, Maddur Town, Mandya
District, due to dashing of offending Skoda car bearing Reg.
No.KA-01-ME-8717 to the on coming goods vehicle bearing
18 MVC No.1992/2019
No.KA-02-AE-9642. Further it is pertinent to note, as per
Ex.P.5 Motor Vehicle Accident Report, the accident had not
occurred due to any mechanical defects in the vehicles
involved in the accident. When the accident was not
occurred due to the any mechanical defects in the offending
Skoda car bearing Reg. No.KA-01-ME-8717 and there was no
negligence on the part of the deceased, 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. There is
absolutely no rebuttal evidence produced by the
respondents to disprove the case of the petitioners and even
nothing has been elicited in the cross-examination of P.W.1
to show that, the said accident has occurred due to rash and
negligent driving of the driver of goods vehicle bearing
No.KA-02-AE-9642 or there was any contributory negligence
on his part in the cause of accident.
19 MVC No.1992/2019
15. Further, the Ex.P.7 Post-motem report, clearly speaks
that, the deceased Sagar has died due to head injuries
sustained in the road traffic accident. The investigation
officer in his Ex.P.2 final report/charge-sheet, has clearly
stated that, the accident has taken place due to rash and
negligent driving of the driver of offending Skoda Laura car
bearing Reg. No.KA-01-ME-8717 and the deceased has
sustained grievous injuries and succumbed to said injuries
on the way to the hospital. Admittedly, the said final
report/charge-sheet has not been challenged either by the
driver of the owner of offending car. In such circumstances,
there is no impediment to believe the final report filed by
the investigation officer and other police records, with
regard to 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 deceased Sagar in the said accident and the cause of his
death.
20 MVC No.1992/2019
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
standard of proof on beyond reasonable doubt could not be
applied.”
21 MVC No.1992/2019
18. Therefore, in the light of observations made in the
above cited decisions and for the above stated reasons, this
Court is of the considered opinion that, the petitioners have
successfully proved through cogent and corroborative
evidence that, the deceased Sagar has succumbed to the
injuries sustained in a road traffic accident, occurred on 06-
08-2017 at about 1.00 a.m., on Bengaluru-Mysore National
Highway road, infront of Someshwara Lodge, near Kolli
circle, Maddur Town, Mandya District, due to the rash and
negligent driving of the driver of Skoda Laura car bearing
Reg. No.KA-01-ME-8717. Hence, I answer Issue No.1 in
Affirmative.
19. Issue No.2: While answering above issue, for the
reasons stated therein, this Court has come to conclusion
that, the petitioners have successfully proved through
cogent and corroborative evidence that, the accident in
question has taken place due to rash and negligent driving
of the driver of offending Skoda Laura car bearing Reg.
22 MVC No.1992/2019
No.KA-01-ME-8717 and deceased Sagar has succumbed to
grievous injuries sustained in the said accident. Now the
petitioners are required to establish that, they are the legal
representatives of the deceased. In this regard, they have
produced the Aadhar card of the deceased, voter ID card of
petitioner No.1 and Aadhar cards of petitioners No.2 and 3,
which are marked as Ex.P.8 to 11. The said documents
clearly goes to show that, the petitioners No.1 and 2 are the
parents and petitioner No.3 is brother of deceased Sagar.
On the other hand, the relationship of the petitioners with
the deceased Sagar is not disputed by the respondents. In
such circumstances, there is no impediment to believe the
above documents produced by the petitioners and hold that,
the petitioners are the legal representatives of deceased
Sagar.
20. The Hon’ble Supreme Court, in the case of National
Insurance Co. V/s Birender, reported in (2020) 11 SCC 356,
has clearly held that,
23 MVC No.1992/2019
” The legal representatives of the
deceased could move application for
compensation by virtue of clause (c) of Section
166(1). The major married son who is also
earning and not fully dependant on the
deceased, would be still covered by the
expression “legal representative” of the
deceased. This Court in Manjuri Bera (supra)
had expounded that liability to pay
compensation under the Act does not cease
because of absence of dependency of the
concerned legal representative. Notably, the
expression “legal representative” has not been
defined in the Act.
The Tribunal has a duty to make an
award, determine the amount of compensation
which is just and proper and specify the person
or persons to whom such compensation would
be paid. The latter part relates to the
entitlement of compensation by a person who
claims for the same.
According to Section 2(11) CPC, “legal
representative” means a person who in law
represents the Tractor and Trally bearing
No.AP-03-AN-8690 & AP-03-AN-8712 estate of a
deceased person, and includes any person who
intermeddles with the estate of the deceased
and where a party sues or is sued in a
representative character the person on whom
the estate devolves on the death of the party so
suing or sued. Almost in similar terms is the
definition of legal representative under the
Arbitration and Conciliation Act, 1996 i.e. under
Section 2(1)(g).
As observed by this Court in Custodian of
Branches of BANCO National Ultramarino vs.
24 MVC No.1992/2019
Nalini Bai Naique [1989 Supp (2) SCC 275, the
definition contained in Section 2(11) CPC is
inclusive in character and its scope is wide, it is
not confined to legal heirs only. Instead it
stipulates that, a person who may or may not
be legal heir competent to inherit the property
of the deceased can represent the estate of the
deceased person. It includes heirs as well as
persons who represent the estate even without
title either as executors or administrators in
possession of the estate of the deceased. All
such persons would be covered by the
expression “legal representative”. As observed
in Gujarat SRTC vs. Ramanbhai Prabhatbhai
[(1987) 3 SCC 234 a legal representative is one
who suffers on account of death of a person
due to a motor vehicle accident and need not
necessarily be a wife, husband, parent and
child.
In Manjuri Bera (supra), in paragraph 15
of the said decision, while adverting to the
provisions of Section 140 of the Act, the Court
observed that even if there is no loss of
dependency, the claimant, if he was a legal
representative, will be entitled to
compensation. In the concurring judgment of
Justice S. H. Kapadia, as His Lordship then was,
it is observed that there is distinction between
“right to apply for compensation” and
“entitlement to compensation”. The
compensation constitutes part of the estate of
the deceased. As a result, the legal
representative of the deceased would inherit
the estate. Indeed, in that case, the Court was
dealing with the case of a married daughter of
the deceased and the efficacy of Section 140 of
25 MVC No.1992/2019
the Act. Nevertheless, the principle underlying
the exposition in this decision would clearly
come to the aid of the respondent Nos. 1 and 2
(claimants) even though they are major sons of
the deceased and also earning.
It is thus settled by now that the legal
representatives of the deceased have a right to
apply for compensation. Having said that, it
must necessarily follow that even the major
married and earning sons of the deceased
being legal representatives have a right to
apply for compensation and it would be the
bounden duty of the Tribunal to consider the
application irrespective of the fact whether the
concerned legal representative was fully
dependent on the deceased and not to limit the
claim towards conventional heads only.”
21. According to the ratio laid down in above decision, the
legal representatives though not fully dependent on the
deceased are entitled to claim compensation under all the
heads i.e., under both conventional and non-conventional
heads. In order to determine the compensation, the age,
avocation, income, dependency, future prospects of the
deceased and other conventional heads are to be
ascertained.
26 MVC No.1992/2019
22. The compensation towards loss of dependency: The
oral and documentary evidence available on record clearly
establishes that, the petitioners No.1 and 2 being the
parents and petitioner No.3 being the elder brother of
deceased Sagar are the legal representatives of the
deceased Sagar and they were depending on the income of
the deceased. The P.W.1 has clearly stated in her cross-
examination that, they do not have independent income and
they were depending on the income of the deceased.
Further she has deposed that, her elder son/petitioner No.3
does not do any work, he has no independent income and
he was also depending on the income of the deceased.
There is no rebuttal evidence to show that, the petitioner
No.1 to 3 were not depending on the deceased. Therefore,
in such circumstances, this Court is of the opinion that, the
petitioner No.1 to 3 are entitled for compensation under the
head of loss of dependency. In order to calculate the loss of
27 MVC No.1992/2019
dependency, the first step is to determine the age and
income of the deceased.
i) Age and income of the deceased: The
petitioners have averred that, the age of deceased as on the
date of accident was 21 years. To substantiate this point, the
petitioners have produced the Aadhar card of the deceased,
which is marked as Ex.P.8, wherein the date of birth of the
deceased is mentioned as 22-09-1998. Admittedly, the
accident has occurred on 06-08-2017. Therefore, as on the
date of accident the age of the deceased was about 19
years. Further, it is averred in the petition that, as on the
date of accident the deceased was hale and healthy and was
working as mason and agriculturist and was earning a sum
of Rs.30,000/- per month. But, the petitioners have not
produced any document to show that, the deceased Sagar
was working as mason and agriculturist and he was earning
Rs.30,000/- per month. In such circumstances, there is no
other option before this Court, except to consider the
28 MVC No.1992/2019
notional income as per the guidelines of the Karnataka State
Legal Services Authority.
a) The Hon’ble High Court of Karnataka in the cases
of, G. T. Basavaraj V/s Niranjan and another, in MFA
No.7781/2016, judgment dated 11-08-2022, Ramanna and
another V/s Y. B. Mahesh and another in MFA
No.140/2017, judgment dated 16-01-2020 and New India
Assurance Co. Ltd., V/s Anusaya and others in MFA
No.101195/2014, judgment dated 05-01-2023, has clearly
held that, “when the income of the deceased is not proved,
then the notional income as per the guidelines issued by
Karnataka State Legal Services Authority is to be adopted as
the income of the deceased.”
b) Admittedly the accident took place in the year
2017. Therefore, the notional income of the deceased as per
the guidelines issued by Karnataka State Legal Services
Authority is to be treated as Rs.11,000/- per month.
29 MVC No.1992/2019
Therefore, the annual income of the deceased in the present
case is held as Rs.1,32,000/-.
ii) As per the ratio laid down by the Hon’ble
Supreme Court, in the case of National Insurance Co. Ltd.,
V/s Pranay Sethi and others, reported in (2017) 16 SCC
680, the legal heirs of deceased are also entitled for future
prospects of the deceased, though he was not a permanent
employee as on the date of death. Since the deceased was
aged about 19 years and was not a permanent employee,
the future prospects would be 40% of his income, which
comes to Rs.52,800/- per annum. Therefore, the future
prospects of the deceased is held as Rs.52,800/- per annum.
If this income is added to the notional income, then it comes
to Rs.1,84,800/- per annum. Further, the annual income of
the deceased comes within the exemption limits as per
iii) The deduction of personal expenses and
calculating the multiplier: The family of the deceased
30 MVC No.1992/2019
consist of three persons i.e., petitioners No.1 to 3. The total
number of the dependents of the deceased are three and
admittedly the deceased has died bachelor. Therefore,
deduction towards the personal expenses of deceased is
taken as 50% of the total income, which comes to
Rs.92,400/-. After deducting 50% out of total income,
towards the personal expenses of deceased, the annual
income of the deceased is held as Rs.92,400/-.
iv) As on the date of death, the age of the deceased
was 19 years. As per the guidelines laid down by the Hon’ble
Supreme Court in the case of Sarla Verma and others V/s
Delhi Transport Corporation and another, reported in
2009 ACJ 1298 S.C., the appropriate multiplier in the present
case is taken as 18. Accordingly, the compensation under
the head of loss of dependency is held as Rs.16,63,200/-.
v) Compensation under conventional heads: In
the present case, admittedly the petitioners No.1 and 2 are
the parents and petitioner No.3 is the brother of deceased
31 MVC No.1992/2019
Sagar. Hence, the petitioners No.1 to 3 are entitled for
compensation under the head of filial consortium. As per the
guidelines laid down by the Hon’ble Supreme Court in the
case of National Insurance Co. Ltd. V/s Pranay Sethi and
others, reported in (2017) 16 SCC 680, the compensation
under the following conventional heads is awarded:
a) Loss of estate – Rs. 15,000/-
b) Loss of consortium – Rs. 40,000/- each
c) Funeral expenses – Rs. 15,000/-
The compensation under above heads has to be
enhanced 10% for every 3 years. Seven years have been
lapsed from the date of the judgment. Therefore, the
compensation under the above conventional heads is
enhanced by 20%, the loss of estate comes to Rs.18,000/-,
the loss of filial consortium comes to Rs.48,000/- each to
petitioners No.1 to 3 and funeral expenses comes to
Rs.18,000/-.
32 MVC No.1992/2019
23. Accordingly, the petitioners are entitled for
compensation under different heads as follows :
Sl. Head of
Amount/Rs
No. Compensation
1. Loss of dependency Rs. 16,63,200-00
2. Loss of filial consortium Rs. 1,44,000-00
3. Loss of estate Rs. 18,000-00
4. Funeral expenses Rs. 18,000-00
Total Rs. 18,43,200-00
Therefore, this Court is of the considered opinion that,
the petitioners are entitled for compensation of
Rs.18,43,200/- with interest at the rate of 6% per annum,
from the date of petition till its realization.
24. Liability: Admittedly, as on the date of accident, the
respondent No.1 is the insurer and respondent No.2 is the
owner of the offending vehicle. Further, the evidence placed
on record by the petitioners clearly establishes that, due to
rash and negligent driving of the driver of offending Skoda
Laura car bearing Reg. No. KA-01-ME-8717, the accident in
33 MVC No.1992/2019
question has occurred and the deceased Sagar has
succumbed to grievous injuries sustained in the said
accident. In such circumstances, the respondent No.1 being
the owner of offending vehicle is vicariously liable to
compensate for the damage caused by the said vehicle. The
respondent No.2 being the insurer of the said vehicle has to
indemnify the respondent No.1.
25. But, the respondent No.1 has taken specific defence in
the case that, as on the date of accident the driver of
offending Skoda Laura car bearing Reg. No. KA-01-ME-8717
was not holding valid driving licence to drive the said vehicle
and the respondent No.1 knowing that his driver was not
having valid and effective driving licence to drive the said
car, has entrusted the said vehicle to him. There is breach of
fundamental condition of the policy. Hence, the respondent
No.1 insurance company is not liable to indemnify the
insured/owner of offending vehicle i.e. respondent No.2. In
such circumstances, the burden was on the respondent No.2
34 MVC No.1992/2019
to establish that, as on the date of accident the driver of
offending vehicle was holding valid & effective driving
licence to drive the said vehicle, which he has failed to
discharge in the present case. The respondent No.2 has not
produced any document to show that, as on the date of
accident his driver was holding valid & effective driving
licence to drive the offending car.
26. The learned counsel for respondent No.2 insurance
company vehemently argued that, the Ex.R.1 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.2 has not produced any document to show that, as on
the date of accident his driver was holding valid & effective
driving licence to drive the offending car. Even after issuance
of notice to the respondent No.2 by this Court, he has failed
to produced the driving licence of the respondent No.2. This
35 MVC No.1992/2019
clearly goes 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.2/owner of offending
vehicle, who has consciously handed over his vehicle to a
person who did not possessed driving licence, cannot be
permitted to take the benefit of his wrong and the
respondent No.1/Insurance Company is entitled to raise a
defence under Sec.149(2) of Motor Vehicles Act.
27. On the other hand, the learned counsel for petitioner
vehemently argued that, it is settled principle of law that,
even if there is a fundamental breach of any condition
recognised under Sec.149(2) of Motor vehicles Act, the
insurance company is liable to pay the third party and
recover from the insured.
28. The Hon’ble High Court of Karnataka, in the case of
New India Assurance Co. Ltd., Bijapur by its Divisional
36 MVC No.1992/2019
Manager V/s Yallavva and another, reported in ILR 2020
Kar 2239, 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
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
37 MVC No.1992/2019
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.
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
38 MVC No.1992/2019
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
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.
39 MVC No.1992/2019
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.
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
40 MVC No.1992/2019
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 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.”
41 MVC No.1992/2019
29. In the present case, the respondent No.2 has failed to
discharge his burden of proving that, as on the date of
accident the driver of offending vehicle was having valid
driving licence to drive the offending vehicle and hence,
there is breach of fundamental conditions of insurance
policy committed by him. But, there is absolutely no
evidence on record to show that, the respondent
No.2/owner of offending vehicle was having knowledge that
his driver was not holding valid and effective driving licence
to drive the said vehicle and he has consciously entrusted
his car to the said driver. In such circumstances, the
arguments advanced by the learned counsel for respondent
No.1 does not hold good. Therefore, in the light of ratio laid
down in the above cited decision and for the reasons stated
above, this Court is of the considered opinion that, the
respondent No.1 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
42 MVC No.1992/2019
offending vehicle/respondent No.2. Accordingly, holding
that the petitioner is entitled for compensation of
Rs.18,43,200/- from the respondent No.1, with interest at the
rate of 6% per annum, from the date of petition till its
realization, I answer Issue No.2 in Partly Affirmative.
30. 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 petitioners are entitled for
compensation of Rs.18,43,200/- (Rupees
eighteen lakh forty three thousand and
two hundred only) with interest at the
rate of 6% p.a., from the date of petition
till realisation.
The respondents are jointly and
severally liable to pay the above
compensation amount to the
petitioners. However, the primary
43 MVC No.1992/2019liability to pay the compensation
amount is fastened on respondent No.1 –
Insurance Company and it is directed to
pay the compensation amount within
two months from the date of this order
and recover the same from the
respondent No.2 in the very proceedings
by filing an execution petition.
The above compensation amount is
apportioned as follows:
Petitioner No.1 – Father – 40%
Petitioner No.2 – Mother – 40%
Petitioner No.3 – Brother – 20%
Out of total compensation amount
awarded in favour of petitioners No.1 to
3, 30% of the compensation amount
with proportionate interest shall be
deposited in their names as fixed
deposit in any nationalized bank for the
period of three years with liberty to
draw the accrued interest periodically
and the remaining 70% amount with
proportionate interest shall be released
44 MVC No.1992/2019in their favour, 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 14th day of February,
2025)(Mohammed Yunus Athani)
Member, MACT, Bengaluru.
ANNEXURE
Witnesses examined on behalf of petitioners
P.W.1: Lokesh A.R. @ Lokesha S/o Rudrappa
Documents marked on behalf of petitioners
Ex.P.1: True copy of F.I.R. and First Information
Statement
Ex.P.2 : True copy of Charge-sheet
Ex.P.3: True copy of Spot Mahazar
Ex.P.4: True copy of Sketch
Ex.P.5: True copy of M.V.A. Report
Ex.P.6: True copy of Inquest
Ex.P.7: True copy of Post-mortem Report
Ex.P.8: Notarized copy of Aadhar card of the
deceased
Ex.P.9: Notarized copy of Voter Identity card of
Petitioner No.1
45 MVC No.1992/2019
Ex.P.10: Notarized copy of Aadhar card of Petitioner
No.2
Ex.P.11: Notarized copy of Aadhar card of Petitioner
No.3
Ex.P.12: True copy of MLC Extract
Witnesses examined on behalf of respondents
R.W.1: Mahesh N.V. S/o Venkatachaliaha
R.W.2: S. Narendran S/o Srinivasan
Documents marked on behalf of respondents
Ex.R1 True copy of Insurance Policy
(Mohammed Yunus Athani)
Member, MACT, Bengaluru.
