Smt.Riyan W/O Sharif Balabatti vs Smt.Akshta Satish Kalal
2022 Latest Caselaw 11790 Kant

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                                                            MFA No. 101103 of 2020


                             IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                                DATED THIS THE 13TH DAY OF SEPTEMBER, 2022

                                                  PRESENT
                                    THE HON'BLE MR JUSTICE S G PANDIT
                                                    AND
                               THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
                        MISCELLANEOUS FIRST APPEAL NO. 101103 OF 2020 (MV-D)
                        BETWEEN:

                        1.   SMT.RIYAN W/O SHARIF BALABATTI
                             AGED ABOUT:45 YEARS, OCC: HOUSEWIFE,
                             R/O CHAPPARBAND COLONY,
                             6TH CROSS, DSIT: DHARWAD

                        2.   SRI. MD. SHARIF @ SHARIF S/O BASHASAB BALABATTI
                             AGED ABOUT:50 YEARS, OCC: COOLIE
                             R/O CHAPPARBAND COLONY,
                             6TH CROSS, DSIT: DHARWAD

                                                                       ...APPELLANTS
                        (BY SRI. T M NADAF, ADVOCATE)

                        AND:

                        1.   SMT.AKSHTA SATISH KALAL
                             AGED:MAJOR, OCC: BUSINESS
                             R/O NO.18, MASALAGAR GALLI, DHARWAD-580001

                        2.   THE DIVISIONAL MANAGER
Digitally signed by J
MAMATHA
                             NATIONAL INSURANCE COMPANY LTD.,
Location: High
Court of Karnataka,
Dharwad Bench
                             HUDDAR COMPLEX, NEAR HEAD POST,
Dharwad.
Date: 2022.09.17
11:26:33 +0530
                             STATION ROAD, DHARWAD-580001

                                                                     ...RESPONDENTS
                        (BY SRI. AYUSH BHAT, ADV. FOR R1)
                        (SRI.S.S. JOSHI, ADV. FOR R2)

                             THIS MFA IS FILED U/S.173 (1) OF MV ACT, AGAINST THE
                        JUDGMENT AND AWARD DATED 06.12.2019 PASSED IN MVC
                        NO.379/2015 ON THE FILE OF IV ADDITIONAL DISTRICT AND
                        SESSIONS JUDGE AND ADDL. MACT, DHARWAD, PARTLY ALLOWING
                        CLAIM PETITION AND SEEKING ENHANCEMENT OF COMPENSATION.
                              -2-




                                    MFA No. 101103 of 2020


    THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
ANANT RAMANATH HEGDE J., DELIVERED THE FOLLOWING:


                       JUDGMENT

Heard the learned Advocate for the appellants-

claimants and learned counsel for the respondents and

perused the appeal papers.

2. The claimants in MVC No.379/2015 on the file

of learned IV Addl. District and Sessions Judge & Addl.

MACT, Dharwad are taking exception to the judgment and

award dated 6.12.2019 passed by the Tribunal to the

extent of absolving insurance company from liability to pay

compensation and also to the extent of disallowing the

claim of the claimants in respect of income of the

deceased and other conventional heads.

3. The accident which occurred on 1.8.2014 and

resulting in the death of Jakirhussain is not in dispute. It

is stated that the deceased was aged 20 years as on the

date of the accident and he was a student pursuing ITI

course and also running grocery shop.

MFA No. 101103 of 2020

4. The Insurer contended that the rider of bike in

question was not possessing valid and effective driving

license as on the date of the accident. It is contended that

the deceased was not having Driving License (DL) to ride

the bike in question but was possessing DL to drive Light

Motor Vehicle, as such, there is no valid and effective

driving license within the meaning of Sections 3 & 10 of

Motor Vehicles Act, 1988. The Tribunal having accepted

the contention of insurer that rider of the bike was not

possessing valid and effective driving license, absolved the

insurance company of its liability to pay compensation.

5. The Tribunal awarded a total compensation of

Rs.7,03,000/- and fastened the liability to pay the same

on the owner of the bike.

6. Sri. T.M. Nadaf, learned counsel for the

appellants/claimants submits that the deceased being a

pillion rider of bike in question and the insurer having

issued policy of insurance to the vehicle, the Tribunal could

not have absolved the insurance company of its liability to

MFA No. 101103 of 2020

pay compensation to the claimants. It is submission of

learned counsel Sri. Nadaf that since the deceased-pillion

rider not being a party to the contract of insurance, the

Tribunal ought to have fastened liability on the insurance

company to pay the compensation. Learned counsel in

support of his contention places reliance on decision of the

Hon'ble Apex Court in Pappu & Others Vs. Vinod Kumar

Lamba & Another1. Referring to the said judgment,

learned counsel would submit that even in case the Court

holds that rider of the bike in question was having no valid

and effective driving license to ride the bike, the insurance

company having issued policy has to pay the

compensation in the first instance and recover the same

from the owner of the insured vehicle in question

thereafter. Learned counsel Sri. Nadaf also brought to the

notice of this Court judgment of the Hon'ble Apex Court in

National Insurance Company Ltd. Vs. Swarn Singh &

(2018) 3 SCC 208

MFA No. 101103 of 2020

Others2 and submits that it is for the insurance company

to establish that rider of vehicle in question was not

having valid and effective driving license as on the date of

the accident.

7. Sri. S.S. Joshi, learned counsel for the

respondent-Insurance Company would contend that the

rider was not possessing valid and effective Driving

License as on the date of the accident to ride the bike in

question and he was having DL to drive Light Motor

Vehicle (LMV), as such, there is breach of terms and

conditions of policy as contemplated under Section 149 of

the MV Act, as such, the insurance company is not liable to

pay compensation. Therefore, the Tribunal is justified in

absolving the insurance company from liability to pay

compensation. In support of said contention, learned

counsel Sri. S.S. Joshi, would place reliance on judgment

passed by learned Single Judge of this Court in Bajaj

Allianz General Insurance Co. Ltd. Vs. C Sundara Raj

(2004) 3 SCC 297

MFA No. 101103 of 2020

& another, dated 3.1.2017. Referring to the said

judgment, Sri. S.S. Joshi would submit that the license

issued in favour of the rider of bike is only to drive LMV

but not to ride the bike in question. Since the bike is not

LMV, the insurance company has to be absolved from

liability to pay compensation, is the contention of the

insurer.

8. This Court has considered the rival contentions

raised by learned counsel for the claimants as well as

insurer.

9. On perusal of the aforesaid two judgments of

the Hon'ble Apex Court, it would emerge that in case the

insurance policy is issued and DL is not held to be valid

and effective, the insurance company could avoid its

liability against owner of the insured vehicle and liability of

the insurance company to pay compensation against the

claimants subsists. The insurance company has to recover

the same from the owner of the insured vehicle after

satisfying the award to the claimants. Under these

MFA No. 101103 of 2020

circumstances, this Court is of the considered view that

though rider of the bike did not possess valid and effective

DL as on the date of the accident, liability of the insurance

company to pay compensation to the claimants in a third

party claim does subsist and the insurance company has

to pay compensation in favour of the claimants at the first

instance and thereafter, recover the same from the owner

of the insured vehicle. Thus, the finding of the Tribunal

that the owner of the insured vehicle is not liable to pay

compensation is set-aside and the insurance company is

made liable to pay compensation to the claimants and to

recover the same from the owner of the insured vehicle

applying principle of "Pay and Recover".

10. As far as the quantum of compensation is

concerned, there is no dispute over the fact that the

accident occurred in the year 2014. No proof is produced

relating to the income of the deceased. In the absence of

proof relating to income of the deceased, chart prepared

by the Karnataka State Legal Services Authority would

MFA No. 101103 of 2020

provide guideline to assess the notional income. As per

chart, for the accident of the year 2014, notional income

would be Rs.7,500/- per month. Since the deceased was

a bachelor and aged 20 years, 40% has to be added

towards future prospects and 50% has to be deducted

towards personal expenses of the deceased and proper

multiplier applicable to his age is 18. Accordingly, monthly

loss of dependency would be Rs.5,250/- (Rs.7,500 + 40%

x ½). Thus, total loss of dependency would work out to

Rs.11,34,000/- (Rs.5,250 x 12 x 18).

11. Further, the claimants who are none other than

parents of the deceased are entitled to Rs.44,000/- each

towards filial consortium as held by the Hon'ble Apex

Court in Magma General Insurance Company Limited

Vs. Nanu Ram & Another3. Rs.33,000/- is awarded

under the conventional heads. Accordingly, the claimants

shall be entitled to total compensation of Rs.12,55,000/-

as against Rs.7,03,000/- awarded by the Tribunal. The

2018 ACJ 2782

MFA No. 101103 of 2020

enhanced compensation would be Rs.5,52,000/-, which

shall carry interest at 6% per annum from the date of

petition till date of realization.

12. Apportionment, deposit and disbursement of

enhanced compensation shall be as per impugned award.

13. It is made clear that the respondent-Insurance

company is liable to pay the entire compensation amount

along with accrued interest in favour of the claimants and

to recover the same from the owner of the insured vehicle

under the principle of "Pay and Recover".

14. With the above observations, appeal stands

allowed in part.

Sd/-

JUDGE

Sd/-

JUDGE

JTR