Karnataka High Court
The Manager Cholamandalam Ms General ... vs Sri. Sadashiv S/O. Basappa ... on 24 January, 2025
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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MFA No. 101497 of 2022
C/W MFA No. 105102 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 24TH DAY OF JANUARY, 2025
PRESENT
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
MISCELLANEOUS FIRST APPEAL NO. 101497 OF 2022 (MV-)
C/W
MISCELLANEOUS FIRST APPEAL NO. 105102 OF 2023 (MV-)
IN MFA NO.101497/2022:
BETWEEN
THE MANAGER, CHOLAMANDALAM
MS GENERAL INSURANCE COMPANY,
KRISHNA TOWERS, 1ST FLOOR,
V.A. KALBURGI SQUARE, DESAI CROSS,
DESHPANDE NAGAR, HUBBALLI-580029
NOW REPRESENTED BY ITS AUTHORIZED SIGNATORY.
...APPELLANT
Digitally
(BY SRI. SUBHASH J. BADDI, ADVOCATE)
signed by
VINAYAKA B
V
Location:
High Court of AND
Karnataka,
Dharwad
Bench
1. SRI. SADASHIV S/O. BASAPPA CHINCHAKHANDI,
AGE. 63 YEARS, OCC. SERVICE,
2. SMT. MAHADEVI W/O. SADASHIV CHINCHAKHANDI,
AGE. 56 YEARS, OCC. HOUSE HOLD WORK,
BOTH ARE R/O. MALLIKARJUN GALLI, HUNNUR,
TQ. JAMAKHANDI, DIST. BAGALKOT 587 301.
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MFA No. 101497 of 2022
C/W MFA No. 105102 of 2023
3. SRI. RAMANNA S/O. SHANTAPPA PATIL,
AGE. MAJOR, OCC. BUSINESS,
R/O. IBRAHIMPUR, TQ. SINDAGI,
DIST. VIJAYAPUR-561202.
...RESPONDENTS
(BY SRI. VIJAYKUMAR K. KOTIN, ADVOCATE FOR C/R1 & R2;
SRI. ASHOK A. NAIK, ADVOCATE FOR R3)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES
ACT, 1988, PRAYING TO CALL FOR RECORDS, HEAR THE
PARTIES AND ALLOW THE APPEAL AS PRAYED FOR BY
SETTING ASIDE THE JUDGMENT AND AWARD DATED
03.12.2021 PASSED BY THE PRL. SENIOR CIVIL JUDGE AND
MACT, JAMKHANDI IN MVC NO.302/2019 WITH COST IN THE
INTEREST OF JUSTICE AND EQUITY.
IN MFA NO.105102/2023:
BETWEEN
1. SRI. SADASHIV S/O. BASAPPA CHINCHAKHANDI,
AGE. 64 YEARS, OCC. SERVICE,
R/O. MALLIKARJUN GALLI, HUNNUR,
TQ. JAMKHANDI, DIST. BAGALKOT-587119.
2. SMT. MAHADEVI W/O. SADASHIV CHINCHAKHANDI,
AGE. 57 YEARS, OCC. HOUSEHOLD WORK,
R/O. MALLIKARJUN GALLI, HUNNUR,
TQ. JAMKHANDI, DIST. BAGALKOT-587119.
...APPELLANTS
(BY SRI. VIJAYKUMAR K. KOTIN, ADVOCATE)
AND
1. SRI. RAMANNA S/O. SHANTAPPA PATIL,
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MFA No. 101497 of 2022
C/W MFA No. 105102 of 2023
AGE. MAJOR, OCC. BUSINESS,
R/O. IBRAHIMPUR, TQ. SINDAGI,
DIST. VIJAYPUR-586120.
(OWNER OF TRUCK REG.NO.KA-28/C-9431).
2. THE MANAGER,
CHOLAMANDALAM MS GENERAL
INSURANCE COMPANY, 1ST FLOOR,
V.A. KALABURGI SQUARE, DESAI CROSS,
DESHAPANDE NAGAR, HUBLI-580029.
(POLICY NO.3379/01856769/000/00
VALID FROM 30-10-2017 TO 29-10-2018)
...RESPONDENTS
(BY SRI. ASHOK A. NAIK, ADVOCATE FOR R1;
SRI. SUBHASH J. BADDI, ADVOCATE FOR R2)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLE ACT 1988, PRAYING TO CALL FOR THE RECORDS
AND ENHANCE THE COMPENSATION BY MODIFYING THE
JUDGMENT AND AWARD PASSED IN M.V.C NO.302/2019 ON
THE FILE OF PRL. SENIOR CIVIL JUDGE AND MACT
JAMKHANDI DATED 03.12.2021 BY ALLOWING THIS APPEAL
WITH COSTS, IN THE INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 09.01.2025 COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY,
B.M.SHYAM PRASAD J., DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
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MFA No. 101497 of 2022
C/W MFA No. 105102 of 2023
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD)
These appeals are by an Insurer and the
Claimants in MVC No. 302/2019 on the file of the principal
Senior civil Judge and MACT, Jamakhandi (for short, 'the
Tribunal') calling in question the Tribunal's judgment and
award dated 03.12.2021 The appeal by the Insurer [M/s
Cholamandalam General Insurance Co.] is in MFA No.
101497/2022, and the appeal by the Claimants [the
dependents of a deceased] is in MFA No. 105102/2023. The
Tribunal has awarded a total sum of Rs.18,79,360/- to the
Claimants along with interest at 6% per annum with
directions that 50% of this amount shall be released
immediately and that the remaining 50% shall be in deposit
with the nationalized/scheduled bank for three [3] years.
2. The Tribunal has arrived at a sum of
Rs.23,49,200/- as compensation that should be paid to the
claimants, but the Tribunal, opining that the rider of the
motorcycle has also contributed to the accident, has held
that the claimants, the parents of the deceased young girl
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who was on the pillion of the motor cycle, will be entitled to
only 80% of such mount as compensation. Accordingly, the
Tribunal has awarded a sum of Rs.18,79,360/- as
compensation to the Claimants. The Tribunal has computed
Rs.23,49,200/- under the following heads.
Sl. No. Head of Compensation Amount
1 Loss of Dependency Rs.22,84,200.00
2 Loss of love and affection to the Rs.50,000.00
Claimant No. 1 and 2 [the
parents of the deceased]
3 Funeral Expenses Rs.15,000.00
Total Rs.23,49,200.00
The Tribunal, in the course of the impugned judgement, has
observed that the Insurer must pay compensation to the
Claimants and recover the same from the owner of the Truck
bearing registration No. KA-28 C-9431 [the other vehicle
involved in the accident, which is referred to as 'the Truck'],
but the Tribunal has not included this direction in the
operative portion of the judgement, and therefore, this
direction is not a part of the award.
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3. Sri Subhash J. Baddi, the learned counsel
for the Insurer, and Sri Vijaykumar Kotin, the learned
counsel for the Claimants, are categorical that the questions
for consideration in these appeals are about [a] the Insurer's
liability, [b] the merits of the deduction towards contributory
negligence and [c] the just and reasonable compensation to
the claimants because it is undisputed that the deceased
[Ms. Sridevi C] has died in a road accident on 25.10.2018
when she was riding on the pillion of the motorcycle [bearing
No. KA.48 Y 1332] and that the accident is because of the
collusion between the Truck and the said Motor cycle.
4. As regards the Insurer's liability to pay just
and reasonable compensation to the claimants, Sri Subhash
J. Baddi canvasses that the Insurer's defence is that the
driver of the Truck did not possess a valid driving license
but the Tribunal has not considered this defence while
concluding that the Insurer must pay compensation to the
claimants and then recover from the owner of the Truck. Sri
Subhash J. Baddi also contends that Tribunal has erred in
computing loss of dependency taking the monthly income at
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Rs.11,750/- with the addition of 50% of such income
towards future prospects and deducting 50% towards
personal expenses. On the question of deduction towards
negligence by the rider of the motorcycle and the just and
reasonable compensation, Sri. Vijaykumar Kotin cannot
contest that the deceased [a pillion rider] will be a third
party and as such there cannot be deduction and that this
Court must take notional monthly income of the deceased at
more than Rs.11,750/- which is the notional monthly
income of an unskilled labour evolved for settlement in Lok-
Adalat.
5. The Insurer disputes its liability to pay
compensation to the claimants to indemnify the owner of the
Truck, or to first pay to the claimants and then recover from
the owner of the Truck, contending that the driver of the
Truck was driving the vehicle without a license. The Insurer
also contends that the owner has not furnished the details of
the driving license despite being served with the notice. The
Owner has not filed Written Statement, and as such, the
Insurer's defence that the owner of the Truck has not
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informed the Insurer about the accident and has not
furnished the relevant documents and that the jurisdictional
police have filed chargesheet as against the owner and also
the driver of the Truck for different offences, including the
offences punishable under sections 3 and 5 of the Motor
Vehicle Act, 1988 [the MV Act], remain unrebutted.
6. The Claimants have examined one of them
as PW 1 and marked the academic credentials of the
deceased [Ms. Sridevi C] such as Under Graduation/Post
Graduation Mark Sheets and the Certificate issued upon
completion of the relevant Certification Course. The
claimants have produced copies of the FIR [Ex-P -1], Post-
mortem Report [Ex-P - 4], MV Report [Ex-P - 5], Inquest
Panchanama [Ex-P - 6], and they have also produced the
Chargesheet [Ex. P 7]1. The Insurer has examined one of its
officers as RW-1, and it has produced the correspondences
with the jurisdictional Regional Transport Officer for the
1 The learned counsel for the Insurer, in the course of the hearing, has
stated that the owner and the driver were initially convicted for the
offences charged against them, but they have been later acquitted
in the appeal. However, the copies of these judgements are not
placed on record.
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details of the accident and Driving License of the Truck
Driver.
7. The Tribunal, while considering the Issue
on whether the Insurer or the owner of the Truck will be
liable to pay compensation to the Claimants, has opined that
the Insurer must pay the compensation to the claimants and
recover the same from the owner of the Truck because it has
failed to produce documents to establish the Insurer's
liability. The Tribunal referring to a Full Bench decision of
this Court in New India Assurance Co. Ltd., v. Yallavva
W/o Yamanappa Dharanakeri2 has held that the different
decisions relied upon by the Insurer [though the Tribunal has
not specifically referred to any set of decisions] must be
distinguished in the facts and circumstances of the case.
8. Sri Subhash J. Baddi contends that
irrefutably the Truck Owner has not produced the details of
the Driver's license either in the proceedings with the
Tribunal or in the present appeal proceedings, and therefore,
2 [ILR 2020 Kar 2341
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the Insurer cannot even be made liable to pay and recover.
The learned Counsel relies upon the following decisions of a
coordinate Bench of this Court emphasizing that the recent
decision of this Court is that an Insurer can successfully
deny even the liability to pay and recover the compensation
if it is established that the concerned driver did not possess
a valid license as on the date of the accident. The learned
counsel relies on these decisions:
[i] The decision in MFA No. 3297/2019 which is
decided on 13.04.2023,
[ii] The decision in MFA No. 615/2019 which is decided
on 14.12.2023.
9. In the light of these circumstances, the
questions for consideration are:
[i] Whether the Tribunal has determined
just and reasonable compensation in
computing Rs.23,49,200/- to the
claimants.
[ii] Whether this Court must interfere with
the Tribunal's direction to the Insurer to
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pay to the claimants 80% of
compensation applying the principle of
contributory negligence and recover the
same from the Truck's owner.
Reg: Question No. [i]:
10. The Tribunal has computed loss of
dependency in a sum of Rs.22,84,200/- thus:
Income Rs.11,750.00
50% Towards personal expenditure Rs.5,875.00
Addition of 40% towards future prospects Rs.4,700.00
Monthly Income with the addition Rs.10,575.00
towards future prospects
The Annual Income Rs.1,26,900.00
Loss of Dependency Rs.22,84,200.00
Sri Subhash J. Baddi contends that the Tribunal should
have deducted towards the deceased's personal expenditure
after adding future prospects to the national income, but the
Tribunal has deducted personal expenditure only from the
notional income. This Court finds considerable force in this
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submission, and the Loss of Dependency must be computed
accordingly.
11. The claimants have produced the academic
records of the deceased as also the deceased's Certificate in
Computer Training. These exhibits are marked as Exs.P10-
P22. It is seen from these documents that the deceased has
been a bright student right through and has completed her
Post Graduation in Science while simultaneously pursuing a
course in Computer Training. The deceased's father, who is
examined as PW1, has also deposed that the deceased,
because she was keen on pursuing her career in teaching,
had enrolled for B.Ed. in a private college as against a
government seat. The Tribunal, in the light of this evidence,
has taken the notional monthly income of the deceased at
Rs.11,750/-, an income evolved for settlement in Lok Adalat
for the accidents in the year 2018. The Tribunal has
deducted 50% towards personal expenditure and added 40%
of Rs.11,750/towards future prospects.
12. Sri. Vijaykumar Kotin canvasses that :
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[a] the monthly income at Rs.11,750/- is taken in
the cases arising out of accidents in the year 2018
by the Tribunals/ Courts when there is evidence of
the victim being employed but there is no evidence
of actual income and also when the victim is
treated as an unskilled labour,
[b] that the deceased, with academic credential as
above, cannot be called an unskilled labourer and
Loss of Dependency decided based on the salary of
an unskilled labourer.
13. The learned counsel emphasises that this Court
must in the least take the notional income of the deceased at
Rs.20,000/- per month adding 40% thereof towards future
prospects and grant just compensation deducting 50%
therefrom with 18 as the multiplier because the deceased
was only aged 23 years as of the date of the accident. Sri.
Subhas J. Baddi argues that it is undisputed that the
deceased, despite her academic credential, was not
employed and that the Tribunal, only because a potential is
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established, has rightly taken the income of the deceased at
Rs.11,750/- per month.
14. These rival submissions as regards the Loss of
Dependency are considered. This Court must observe that it
remains indisputable that the notional monthly income of
Rs.11,750/- is taken in the cases arising out of the
accidents in the year 2018 for settlement in Lok Adalat when
there is no proof of actual income based on the reasoning
that even an unskilled labour would be paid, in the
minimum, such amount. In the present case, the deceased
had completed her post graduation in Science and had also
enrolled herself for B.Ed. against a government seat after
training in computers in a certificate course.
15. Further, the claimants have stated in evidence
that the deceased was pursuing her academic career to find
herself a teaching job and that her chosen subjects in Post
Graduation were Mathematics and Physics. These
undisputed circumstances do render credence to the
claimant's case that, but for the unfortunate demise, the
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deceased would have pursued her career to be employed in a
teaching job, and therefore, this Court is of the considered
view that it will not be fair to take the notional income of the
deceased at Rs.11,750/- [the notional income for an
unskilled labour].
16. However, the question as to the amount that
must be taken as the deceased's notional income will remain
a vexed question which does not render itself to an easy
answer, and this question must be considered in view of the
settled law that the Tribunals/ Courts, in awarding just and
reasonable compensation, must ensure that there is no
bonanza to the claimants. When this question is thus
examined in the peculiarities of this case, this Court is of the
considered view that the deceased's notional income, given
all the vagaries of life and that the deceased was still a
student, must be taken at Rs.18,000/- per month and loss
of dependency calculated accordingly retaining the same
parameters but deducting personal expenditure even from
future prospects. The computation of loss of dependency will
be as follows:-
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Income Rs.18,000.00
Addition of such Income at the
rate 40% towards future Rs.7,200.00
prospects
Monthly Income with the
addition towards future Rs.25,200.00
prospects
50% Towards personal
Rs.12,600.00
expenditure
The Annual Income Rs.1,51,200.00
Loss of Dependency Rs.27,21,600.00
Enhancement [Rs.27,21,600
- Rs.22,84,200] Rs.4,37,400.00
17. The claimants will also be entitled for loss of
consortium and conventional heads at the rate of
Rs.40,000/- [per claimant with addition @ 10% for every
block of three years] and conventional expenses of
Rs.30,000/-. As such, the Question No. [i] is answered in
favour of the claimants holding that they will be entitled for
a total compensation of Rs.28,47,600/- as against the total
award of Rs.23,49,200/- resulting in an enhancement in
Rs.4,98,400/-. The enhancement will be as follows:
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By Tribunal By this Court
Description
Loss of dependency Rs.22,84,200.00 Rs.27,21,600.00
Loss of Love and
Rs.50,000.00 Rs.96,000.00
affection
Funeral and
Transportation Rs.15,000.00 Rs.30,000.00
Expenses
Total Rs.23,49,200.00 Rs.28,47,600.00
Difference/
Rs.4,98,400.00
Enhancement
Reg: Question No. [ii]:
18. At the outset, this Court must observe that the
deceased was on the pillion of a motor-cycle and the
accident is because of a collusion between this motorcycle
and the Truck and that these circumstances irrefutably
establish that the deceased is a third party [not being a party
to the contract between the Insurer and Truck owner or his
agent]. The fact that the deceased and her parents, who
assert loss of dependence on her demise, are third parties
must be crucial in deciding whether the Insurer must first
pay the claimants just and reasonable compensation and
then recover it from the Truck Owner.
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19. The Insurer denies its liability to indemnify the
owner of the Truck, and to even pay compensation to the
claimants and recover from the owner of the Truck, because
the driver of the Truck did not possess a driving license. If
the driver of the Truck indeed did not hold a Driving License,
it would be one defence to an Insurer because of Section
149[2][a][ii] of the M V Act3 resulting in possible exclusion of
3 Section 149 [2]
No sum shall be payable by an insurer under sub-section (1) in respect of
any judgment or award unless, before the commencement of the
proceedings in which the judgment or award is given the insurer had
notice through the Court or, as the case may be, the Claims Tribunal of
the bringing of the proceedings, or in respect of such judgment or award
so long as execution is stayed thereon pending an appeal; and an insurer
to whom notice of the bringing of any such proceedings is so given shall
be entitled to be made a party thereto and to defend the action on any of
the following grounds, namely--
[a] that there has been a breach of a specified condition of the policy,
being one of the following conditions, namely-
[i] a condition excluding the use of the vehicle--
[a] for hire or reward, where the vehicle is on the date of the
contract of insurance a vehicle not covered by a permit to ply
for hire or reward, or
[b] for organised racing and speed testing, or
[c] for a purpose not allowed by the permit under which the
vehicle is used, where the vehicle is a transport vehicle, or
[d] without side-car being attached where the vehicle is a motor
cycle; or
[ii] a condition excluding driving by a named person or persons or by
any person who is not duly licensed, or by any person who has
been disqualified for holding or obtaining a driving license during
the period of disqualification; or
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its liability. The circumstances in which this defence can be
invoked and how it should be assessed by Tribunals/ Courts
has been considered by a Full Bench of this Court in New
India Assurance Co. Ltd. V. Yallavva and another
[supra], a decision relied upon by the Tribunal in holding the
Insurer liable to pay and recover the compensation. The Full
Bench's decision in this case is on a reference on the
questions whether an Insurer can be made to pay and
recover compensation if there is a breach of a policy
condition enabling a defence under Section 149 [2] of the MV
Act.
20. The Full Bench decision is in the light of the
different decisions of the Apex Court, including the decision
in National Insurance Company Ltd., v. Swaran Singh4.
The Coordinate Bench in its decisions in MFA No.
3297/2019 and MFA No. 615/2019 [the two decisions relied
upon by Sri Subhash J. Baddi] has referred to the Apex
[iii] a condition excluding liability for injury caused or contributed to
by conditions of war, civil war, riot or civil commotion; or
4 [2004] 3 SCC 297
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Court's decision in National Insurance Company Ltd., v.
Swaran Singh [Supra], but has not referred to the Full
Bench's decision. This Court must consider the merits of the
Insurer's defence that it cannot even be made liable to pay
compensation to the claimants and recover from the Truck
owner in view of the law exposited by the Full Bench and the
irrefutable fact that the deceased is a third party and the
claim is by her parents.
21. The Full Bench's decision on this facet [per
Justice B V Nagarathna as a Judge of this Court] is in these
paragraphs:
36. Thus, on a reading of Section 149, it becomes
clear that when third party risks are involved
or when the victim of the accident is a third
party, such risk being compulsorily covered
under sub-Section (1) of Section 147, any
exclusion in the policy must be suitably
interpreted having regard to the main purpose
for which an insurance contract is entered into.
In Swaran Singh the Hon'ble Supreme Court
has enumerated the aforementioned twin tests
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in the above context. It is only when both the
tests are satisfied that the insurer could be
permitted to pay and recover from the insured
as per the proviso to sub-Section (4) of Section
147 otherwise, no pay and recovery order
could be made and the insurer has to satisfy
the award.
37. Thus, what follows is that, in regard to third
party rights, the insurer can defeat such rights
under Section 149(2)(a) by proving a breach of
the condition of the policy and further, proving
that the same is a fundamental breach. In such
an event, the insurer can only mitigate its
liability, and the insured would be liable to
satisfy the judgment vis-à-vis the insurer who
would have satisfied the claim of the third
party in the first instance. Therefore, the
insurer cannot defeat a third party claim by
any exclusion in the policy having regard to the
four comers of Section 149(2)(a). It can only
mitigate its liability by seeking recovery from
the insured on proof of the exclusion clause as
per the twin tests enumerated by the Hon'ble
Supreme Court. This is the object of Section
149(4) and the proviso thereto which
contemplates pay and recovery order to be
made against the insurer who has been
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notified in a claim proceeding instituted by a
third party under Section 149(1) of the Act.
The underlining is by this Court
38. To this, another nuance may be added. What
would be the position when the insurer is able to
prove a breach of the policy, but the said breach
is not a fundamental breach or the breach did
not contribute to the cause of the accident but
what could be termed as an innocent breach and
not an intentional one. In such a case also, the
Insurance Company must pay to the third party
and recover from the insured. This could be
illustrated with reference to the vehicle not being
covered by a permit to ply for hire or reward. The
Hon'ble Supreme Court in the case of Amrit Paul
Singh v. Tata-AIG General Insurance Co. Ltd
[(2018) 7 SCC 558 : AIR 2018 SC 2662.], held
that the vehicle not having a permit at all and
being used for hire or reward is a case of
fundamental breach and hence, the insurer
though absolved of its liability had to pay the
compensation and recovery order was made in
the said case permitting recovery from the
insured. Also, when a vehicle had a permit to ply
within a particular area or on a route deviated
from the said area or route and was plying in
another area or route and an accident occurred,
then it is not a case of fundamental breach,
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although, there is a violation of the terms of the
policy. In such an event also, the pay and
recovery order has been made in the case of Rani
v. National Insurance Company Ltd. [(2018) 8
SCC 492.] , by the Hon'ble Supreme Court.
22. Thus, the Full Bench has exposited that the
Insurer's liability is mitigated even when it has successfully
answered the twin tests viz., the breach of a condition of the
policy and a fundamental breach [in the sense that the breach
has brought about the accident], and that such liability is
also mitigated when the breach of a condition of a policy is
established, but is shown that such breach is neither
intentional nor fundamental. The Insurer's lability is
mitigated in both these circumstances because the Insurer,
after the compensation is paid to a third party, can recover
the same from the Insured. However, these propositions will
not apply when the claimant/s and owner have colluded in
bringing about a contract of insurance, but this is not
germane in the present case as no such defence is taken.
23. The Insurer has relied upon two circumstances to
establish its defence that the Truck owner has permitted a
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person without a driving licence to drive the Truck in breach
of the conditions of policy as is contemplated under Section
19[2] of the MV Act. These circumstances are that the Truck
owner has not furnished the details of the driver when notice
is issued and that the driver of the Truck is convicted for the
offence punishable under the provisions of the MV and for
driving without a license. The Insurer, to prove its case that
notice is issued to the owner of the Truck to furnish the
details, has examined one of its officers [RW1] who has
produced the copies of the notice issued to the owner of the
Truck. The owner has remained silent in the proceedings
before the Tribunal and in the present proceedings. This
Court must therefore opine that the Owner has deliberately
withheld the information because any information in that
regard would go against him. As such, this Court is of the
considered view that the Insurer has established a breach of
a condition of the policy but it cannot deny liability to the
claimants, the parent of a deceased who was on the pillion of
another vehicle [and hence, third partiers].
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24. As per the Spot Mahazar [Ex. P-3] the accident is
at a corner and in the centre of the Road. The Insurer had to
bring on circumstances to establish that the driver's
inability to drive the Truck has brought about the accident.
The Insurer has led no evidence in this regard. Therefore, it
cannot be reasonably opined that the accident is because
the driver was not holding a licence, and the Insurer has not
even alleged that the Truck Owner was negligent in
entrusting the Truck to an unlicenced Driver. Hence, this
Court is of the opinion that a fundamental breach is not
established, nevertheless, as held by the Full Bench, the
Insurer will be liable to pay compensation to the claimant
and recover from the Owner of the Truck.
25. The Tribunal, in apportioning 20% of
contributory negligence to the rider on the motorcycle, has
observed that this rider did not hold a valid driving license;
that he was the deceased's friend; that though the police
have filed charge-sheet against the driver of the Truck, the
material on record indicate that the claimants have
attempted to conceal certain facts; and that the Investigating
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Officer has also not collected material that would lead to a
reasonable inference that the driver of the Truck is
negligent. The deceased was a pillion rider, and none of the
above circumstances in any manner lead to the conclusion
that the deceased was negligent or she in any manner has
contributed to the accident. Therefore, this Court must
observe that none of the circumstances counted by the
Tribunal can affect the compensation that is payable to the
Claimants, the parents of the deceased. The question No. [ii]
is answered in favour of the claimants. In the light of the
about the following:-
ORDER
[a] The Insurer's appeal in MFA No. 101497/ 2022
is rejected and the Claimants' appeal in MFA
No. 105102/2023 is allowed in part granting an
enhanced compensation in a sum of rupees in
Rs.4,98,400/- along with interest at 6% per
annum from the date of the petition with the
Tribunal till the date of deposit.
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[b] The Insurer shall deposit the compensation of
Rs.28,47,600/- [including the enhanced
compensation Rs.4,98,400/-] with the Tribunal
within 8 [eight] weeks from the date of receipt
of a certified copy of this order.
[c] The amount deposited by the Insurer in its
appeal in MFA No. 101497/2022 shall be
transmitted to the Tribunal for disbursement
according to its directions on apportionment
and deposit.
[d] The Insurer will be entitled to recover the
amount deposited in execution of the award.
The office is directed to draw award accordingly.
Sd/-
(B.M.SHYAM PRASAD)
JUDGE
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
RSH/CT-VP
list no.: 1 sl no.: 55
