The petitioners filed this petition U/ Sec.166 of M.V.Act,1988 claiming compensation of Rs.75,00,000/- from respondents due to death of Neyaz Ahmad in a road traffic accident.

2. Brief facts of petitioners case are that, on 26-07- 2023 at about 11.00 a.m. the deceased Neyaz Ahmad was crossing the Queens Road, Opposite to Shifa Hospital, Shivajinagar, wherein the rider of the Scooter bearing Reg.No.KA-04/KJ-0138 drove the same in a rash and negligent manner, endangering to human life, came at high speed from Queens & Thimmaiah Road Junction in a zigzag manner and dashed against the deceased and caused the accident. Due to forced impact, the deceased fell down and sustained grievous injuries all over the body. Immediately after the accident, the deceased was shifted to Shifa Hospital, wherein first aid treatment was given and further shifted to NIMHANS Hospital and again return back to Shifa Hospital, wherein admitted as an inpatient during the course of treatment he succumbed to the accidental injuries on 29-07-2023 at about 1.35 p.m. thereafter body was shifted to Bowring Hospital Mortuary, wherein Postmortem was conducted and after postmortem the body was shifted to to their SCCH-19 4 MVC 5300/2023 native by using an Airways and Ambulance for which they have spent a sum of Rs.1,00,000/- and also performed funeral, obsequies, last rites ceremony for which petitioners have spent more than Rs.3,00,000/-.

3. Prior to the date of accident deceased was hale, healthy and aged about 38 years and working Mason Work at Shifa Hospital, Bangalore and earning Rs.30,000/- p.m. he was only earning member in the family and to look after his family. The petitioner No.1 is the wife of the deceased and she has lost the loving and caring husband at her early age and the petitioner No.2 to 4 are children of the deceased who have lost the caring father and the petitioners were depending upon the deceased morally and financially. Due to untimely death of the deceased, the family members are completely broken and facing financial difficulties.

4. The accident occurred due to rash and negligent riding of the rider of the Scooter bearing Reg.No.KA- 04/KJ-0138, against whom the Shivajinagar Traffic Police have registered criminal case in Cr.No.47/2023 for the offences punishable U/ Sec.279 and 304(A) of IPC. Respondent No.1 is being RC owner and Respondent No.2 being the Insurer of the offending vehicle are jointly and severally liable to pay the SCCH-19 5 MVC 5300/2023 compensation to the petitioners. Hence, the petitioners prays to grant the compensation.

5. In pursuance to the notice, Respondent No.1 did not appear before the tribunal and hence he was placed as Ex-parte. Respondent No.2 has appeared through its Counsel and filed Written statement.

6. Brief averments of the written statement of Respondent No.2 are that, the petition is not maintainable either in law or on facts and the same is liable to be dismissed in limine. It is contended that the driver of the insured vehicle/respondent No.1 i.e., insured cum rider was not having valid and effective D.L. to drive the said vehicle as on the date of the alleged accident and as such respondent No.1 has willfully violated the terms and conditions of the policy. There was no negligence on the part of the driver of the insured vehicle as he was proceeding with due care and cautious by following the traffic rules and regulations. On the contrary the alleged accident occurred due to sole negligence of the deceased who was crossing the road in a negligent manner without following the traffic rules and regulations, by colluding with the police, a false complaint was foisted against the insured vehicle in order to get compensation illegally and high handedly, as such this respondent SCCH-19 6 MVC 5300/2023 specifically denied the contents of the police documents. Further, denied the age, income and occupation of the deceased and denied the relationship of deceased with the petitioners. It is contended that, the compensation amount claimed is highly excessive, exaggerated, arbitrary and speculative. Hence, prayed to dismiss the petition against this respondent.

7. Based on the above pleadings, this tribunal framed the following:

8. In order to substantiate the case, petitioner No.1 got examined herself as PW.1 and got marked 15 documents marked as Ex.P.1 to Ex.P.15.

9. Per contra the Associate Manager of Respondent No.2 got examined as RW-1 and marked 05 documents as Ex.R.1 and R.5.

10. Heard the arguments of both sides and perused the materials available on record.

11. For the following reasons, this Tribunal answer the above Issues as under:-

12. Issue No.1:- The petitioners filed this petition against respondents for claiming compensation, due to death of husband of petitioner No.1 and father of petitioner No.2 to 4 in a road traffic accident.

13. In order to substantiate the case, the petitioner No.1 got examined herself as PW.1 and filed affidavit in lieu of chief examination and in her chief affidavit, she SCCH-19 8 MVC 5300/2023 had reiterated the entire contention of the petition and got marked 15 documents as Ex.P.1 and P.15.

14. Ex.P.1 is the copy of F.I.R, Ex.P.2 is the copy of complaint, Ex.P.3 is the copy of spot mahazar, Ex.P.4 is the copy of sketch, Ex.P.5 is the copy of Inquest report, Ex.P.6 is the copy of PM report, Ex.P.7 is the copy of Notice U/ Sec.133 of IMV Act, Ex.P.8 is the copy of reply to the notice, Ex.P.9 is the copy of IMV report, Ex.P.10 is the copy of charge sheet, Ex.P.11 to 15 are the copy of Aadhar Cards of the deceased and petitioners. In the cross-examination, she has stated that, her husband was 3 years younger than her, she resides in Bihar along with her children. Further denied that the accident took place due to the negligence of her husband.

15. The Associate Manager of the Respondent No.2/Insurance company got examined as RW.1 and filed affidavit in lieu of chief examination, he had reiterated the contents of written statement and got marked 05 documents as Ex.R.1 to R.5. Ex.R.1 is the authorization letter, Ex.R.2 is the copy of Insurance policy, Ex.R.3 is the notice given by respondent No.2 to respondent No.1, Ex.R.4 is the postal cover, Ex.R.4(a) is the notice inside the cover and Ex.R.5 is the acknowledgment.

16. The Respondent No.1 had not adduced any evidence and also not produced any documents on his behalf.

17. The counsel for the respondent No.2 argued that, this accident occurred due to sole negligence on the part of the deceased himself and denied about involvement of the offending vehicle in the alleged accident. Further contended that the rider cum owner of the vehicle has not possess the valid D.L. at the time of accident. Therefore, it is not liable for pay the compensation.

18. He relied upon the judgment of Hon'ble High Court of Karnataka in ....

Ramakrishnappa & Others Vs. Mr. Syed Masood Matheen & Another.

(4) MFA No.2380/2016 in between Smt. Gangamma W/o. Basavegowda Vs. Sri. Varadaraju L. & Another.

19. On perusal of Ex.P.4 spot sketch, it discloses that the accident occurred at the left side of the road and the deceased was just started to cross the road in front of Vinayaka Bike Service Center towards Shifa Hospital, and though there is sufficient space for moving the offending vehicle on right side in the road, the driver of the offending vehicle took his vehicle to his left side and dashed to the deceased and caused the accident. Further on perusal of Ex.P.7 and 8 i.e., notice U/ Sec.133 of IMV Act and reply to the said notice, in the reply the owner of the vehicle admitted that he was riding the vehicle on the date of alleged accident and he is not having valid D.L. but insurance was in force on the date of accident. So, it clearly indicates that the offending vehicle was involved in the accident. Further on perusal of charge sheet it discloses that, the Shivajinagar Traffic Police filed the case against the rider of Scooter bearing Reg.No.KA- 04/KJ-0138 for the offence punishable U/ Sec.279 and 304(A) of IPC r/w Sec.134 (A&B), 3(1), 181 and 187 of IMV Act .

20. The Hon'ble Apex Court in the decision reported in 2011 SAR(Civil) 319 Kausum and others V/s Satbir and others held that, in the petition for compensation U/ Sec.166 of Motor Vehicles Act.1988 the petitioners have to prove the incident only on the preponderance of the probabilities and standard of proof beyond all reasonable doubt is not required.

21. The counsel for respondent No.2 has argued that the deceased has also contributed in the accident. Hence, prays to consider the contributory negligence. He relied upon Judgment of Hon'ble High Court of Karnataka in MFA No.2613/2010 and Misc. Cvl.l5255/2010 in between Smt. N. Bharathamma W/o. Late. Ramakrishnappa & Others Vs. Mr. Syed Masood Matheen & Another, and MFA No.2380/2016 in between Smt. Gangamma W/o. Basavegowda Vs. Sri. Varadaraju L. & Another. The above said Judgments are related to the facts of crossing the National Highway by the pedestrian. But, in the present case, the road crossing by the deceased is not a National Highway. It is a road situated in the City having commercial shops and hospital towards both sides. There is also Quinns road cross situated near the accident spot. Since the road situates in the city the rider of the offending vehicle should have SCCH-19 12 MVC 5300/2023 taken proper care while riding the vehicle. On perusal of Ex.P.4 sketch, it appears that there is no negligence on the part of the deceased. Therefore, it appears that the deceased has not contributed any negligent on his part. Hence, the said judgments relied by the counsel for the respondent No.2 are not applicable to the facts of this case.

22. After careful scrutiny of Ex.P.1-F.I.R. Ex.P.2- Complaint, Ex.P.3-Spot Mahazar, Ex.P.4-Sketch, Ex.P.5-Inquest Report, Ex.P.6-PM Report, Ex.P.7-Copy of Notice U/ Sec.133 of IMV act and Ex.P.8 reply to the Notice U/ Sec.133 of IMV Act, Ex.P.9-IMV report, Ex.P.10-charge sheet, it appears that, as on the date of alleged accident, the rider of offending vehicle drove his vehicle in a rash and negligent manner and dashed against the deceased and caused the accident. Therefore considering all these aspects, this Tribunal come to conclusion that, the said accident occurred due to the rash and negligent riding of the rider of the Scooter bearing Reg.No.KA-04/KJ-0138. Accordingly this Tribunal answered Issue No.1 in the affirmative.

23. Issue No.2: The petitioners claimed compensation amount of Rs.75,00,000/- with respect to death of husband of petitioner No.1 and father of SCCH-19 13 MVC 5300/2023 petitioners No.2 to 4 Sri.Nayaz Ahmad in a road traffic accident.

24. As per Ex.P.11 Notarized Copy of Aadhaar card, date of birth of the deceased is shown as 18-07-1985. As per Ex.P.5 Inquest report age of the deceased is shown as 38 years, Ex.P.6 PM report also age of the deceased is shown as 38 years. Hence, the age of the deceased is taken in between 36 to 40 at the time of accident. Then the proper multiplier is 15.

25. The petitioners not produced any document to prove the income and avocation of the deceased. In present days a Coolie worker can get Rs.500/- to 600/- per day. However the petitioners asserted that the deceased was working as Mason at Shifa Hospital, Bangalore and earning Rs.30,000/-p.m. though documents are not produced but, by considering the age, income and occupation of deceased this Tribunal took the monthly income of the deceased at Rs.16,000/-.

26. With regard to the loss of future prospectus is concern, the Apex court in the earlier Judgment reported in 2013 ACJ 1403 ( Rajesh & Ors Vs Rajbir Singh & Ors ) also taken note of the fact that, self employed persons are also entitled for future SCCH-19 14 MVC 5300/2023 prospectus and the said Judgment was referred to larger bench and the Apex court in the recent Judgment passed in 2017 ACJ 2700 SC (between National Insurance co. ltd., V/s Pranay Sethi and others.) "In case the deceased was self employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 year. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years, should be regarded as the necessary method of computation. The established income means the income minus the tax component"

Consortium is the right of spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate".

Hence, it is not possible to compensate the loss of love and affection of the deceased with the Petitioner No.1 by compensating in quantum of amount. In this regard, the Hon'ble Supreme Court of India passed in SCCH-19 16 MVC 5300/2023 2017 ACJ 2700 SC (between National Insurance co. ltd., V/s Pranay Sethi and others) held that, Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively.

Therefore, in view of the Judgment of Hon'ble Supreme Court of India and by considering the loss of love, affection and care from her husband, this tribunal awarded the reasonable compensation of Rs.40,000/- under the head Loss of Consortium.

29. The Petitioner No.2 to 4 are the children of the deceased, they lost love, affection and future support of the deceased. In this regard the Hon'ble Supreme Court of India was held in the case of Magma General Insurance Co. ltd., V/s Nanu Ram @ Chuhru Ram & Ors., (Civil Appeal No.9581/2018 (Arising out of SLP (civil) 3192/2018) The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium.

Parental consortium is awarded to children who lose their parents in motor vehicle accidents under the Act.

A few High courts have awarded compensation on this count. However, there was no clarity with respect to the principles on which compensation could be awarded on loss of Filial Consortium.

The amount of compensation to be awarded as consortium will be governed by the Principles of awarding SCCH-19 17 MVC 5300/2023 compensation under "Loss of consortium" as laid down in Pranay Sethi (Supra).

In the present case, we deem it appropriate to award the father and the sister of the deceased, an amount of Rs.40,000/- each, for loss of Filial Consortium.

Hence, the Petitioner No.2 to 4 are entitled for compensation amount at Rs.40,000/-each under the head Loss of Filial Consortium.

30. Towards awarding compensation under the head of transportation of dead body, funeral & obsequies ceremonies, the petitioners had not produced any document. However, by considering the expenses towards funeral & obsequies ceremonies of deceased and in view of judgment of Hon'ble Apex Court passed in 2017 ACJ 2700 SC (between National Insurance co. ltd., V/s Pranay Sethi and others) it is just and proper to award a Rs.15,000/- under this head. Further the petitioners are also entitled for compensation of Rs.15,000/- under the head Loss of Estate.

31. Considering oral evidence coupled with documentary evidence, it is just and proper to grant compensation as follows:

The Petitioners are entitled for total compensation of Rs.32,14,000/-.

32. Interest:

33. Liability:-

34. On perusal of the evidence of RW.1 and charge sheet at Ex.P.10 filed U/ Sec.279 , 304(A) of IPC and Sec.181 and 187 of IMV Act, it is clear that the rider of the offending vehicle was not having valid D.L. as on the date of the accident. Therefore, it is clear that the respondent No.1 has violated the policy terms.

35. The counsel for respondent No.2 has argued that, since the rider of the offending vehicle has not possess the valid D.L. at the time of accident, it is not liable to pay the compensation to the petitioners as terms and conditions of the insurance policy have been violated. He further submits that in view of omission of proviso of sub-section (4) of Section 149 to the MV Act after its replacement by Section 150 , There is no scope for the Pay & recovery. Hence, it is SCCH-19 20 MVC 5300/2023 not liable to pay and recover the compensation from the owner respondent No.4.

36. The counsel for respondent No.2 has relied upon Judgment of Hon'ble High Court of Karnataka in MFA No.6154/2019 in between Hemalatha @ Hema @ Hemavathi W/o. Renukappa and Others Vs. Bajaj Allianz Gen. Ins. Co. Ltd., & Another, and MFA No.3288/2013 in between M.S. SriRam Gen.Ins.Co., Ltd., Vs. Mrs. Sunitha @ Nagaveni & Others. Wherein the Hon'ble High Court of Karnataka held that, if the rider of the vehicle rides the vehicle without valid D.L. it amounts to fundamental breach of the policy conditions within the meaning of Sec.149(2)(a)(ii) of the MV Act. Therefore, insurance company is not liable to pay the damages to the claimants.

37. Per contra, Counsel for the petitioner has argued that, though rider has not possess the valid D.L, the insurer has liability to pay the compensation and recover the same from the owner respondent No.1. He relief upon a Judgment of Hon'ble High Court of Karnataka in MFA 6824/2016 between the Legal Manager Vs. Smt. Nagamma & Others , wherein it is held that....

23. In view of the law laid down by Swaran Singh's case as well as Yallavva's case, even though this is a case of fundamental breach, the Insurance Company can avoid its liability, as the petitioners are 3rd parties in view of the contract of insurance, the Insurance Company has to pay the compensation and recover the same from the owner of the vehicle. Hence, principle of pay and recovery is applicable to facts of this case.

Further this Tribunal relied upon a Judgment of Division Bench of Hon'ble High Court of Karnataka in MFA No.202104/2024 between The Branch Manager, ICICI Lombard Nibhay Vadde Gen.Ins.Co., Ltd., Vs. Pooja & Others , wherein the Hon'ble High Court of Karnataka has held that...

.... In view of the judgment of Apex Court in the case of Pappu (supra), as per the conditions of the policy, the insured vehicle must be driven by the driver of the vehicle, who is having effective driving licence. In this case, it is not so. Therefore, there is a violation of the policy conditions by the owner of the lorry. As M.V. Act is a benevolent legislation, the claimants cannot be deprived of the compensation so awarded in this case. Therefore, if the Insurance Company is directed to deposit the compensation, as the policy was in force as on the date of accident, as the Insurance Company has to indemnify the said compensation so awarded in view of the principle laid down in the aforesaid judgments by the Hon'ble Apex Court, it would meet the ends of justice. However, the Insurance Company is at liberty to recover SCCH-19 22 MVC 5300/2023 the same from the owner of the lorry by executing the award against him.

On perusal of the above said ratio, it is clear that even after fundamental breach, the insurer has liability to pay the third party/petitioners and recover the same from the owner. Therefore, the Judgment relied by the counsel for the respondent No.2 are not helpful to him.

38. This Tribunal relied upon a judgment of Hon'ble High Court of Alahabad reported in 2025: AHC:14110 ICICI Lombard General Insurance Co Ltd Vs. Smt. Arti Devi and 8 Others, wherein it is held that ....

38. The Court, therefore, holds that mere omission of proviso attached to sub-section (4) of Section 149 of Motor Vehicles Act, 1988 after its replacement by Section 150 of Motor Vehicles (Amendment) Act, 2019 (32 of 2019), neither takes away the liability of the insurer to pay the claimants nor its right to recover the said amount from the owner. The law to this effect remains intact and unaffected by Amendment Act, 2019 and, hence, insurer shall continue to indemnify the owner's risk in relation to accidents taking place after 01.04.2022 and "PAY & RECOVER" principle will still continue to govern the field advancing social object of the Statute protecting third party interest. Principle of law laid down by the Supreme Court in National Insurance Company Limited Vs. Swaran Singh and Others . JT 2004 (1) SC 109 has not lost its SCCH-19 23 MVC 5300/2023 significance and binding effect despite omission of proviso. Held accordingly.

Therefore, on perusal of the above ratio, this Court is of the opinion that, even after Amended Act 2019, the liability of respondent No.2/insurance company is not taken away and it is still under the obligation of indemnify the owners risk and recover the same from its insured.

39. Hence, from the evidence available on record it can be held that the policy in force for which Respondent No.2 insurance company is liable to indemnify the owner respondent No.1. Hence, respondent No.2 being the insurer and respondent No.1 being the owner of the offending vehicle are jointly and severally liable to pay the compensation. However, the respondent No.2 being the insurer shall indemnify respondent No.1 in payment of compensation amount to the petitioner.

40. The Hon'ble Supreme Court in the case of Shamanna and another V/s. The Divisional Manager, The Oriental Insurance Co. Ltd. and others (2018 (9) SCC 650) wherein it is held that there is duty on the part of the insurer to satisfy the award on the basis of principle of pay and recover. In the above decision , the Hon'ble Supreme Court has SCCH-19 24 MVC 5300/2023 held that the tribunal shall follow the decision of Hon'ble Supreme Court rendered in the case of National Insurance Co. Ltd., V/s Swaran Singh ( (2004) 3 SCC 297) and national Insurance Co. Ltd., V/s Laxmi Narain Dhut ( (2007) 3 SCC 700) and adopt the principle of pay and recover.

41. In view of above decision, the respondent No.2 being the insurance company cannot be completely exonerated. The law declared by the Hon'ble Supreme Court is the law of the land under Article 141 of Indian Constitution and binding on this tribunal. The petitioner has sustained grievous injuries in the accident. Considering the same, this tribunal is compelled to adopt the principle of pay and recover. For this reason, the respondent No.2 being insurer of respondent No.1 is required to satisfy the award passed by this tribunal and shall recover the same from respondent No.1 as held in the decision of Hon'ble Supreme Court in the case Oriental Insurance Co. Ltd. V/s Nanjappan and others ( (2004) 13 SCC 224) before the executing court without filing a separate suit.

42. Therefore, as discussed above, in this case the petitioners are the third party to the offending vehicle and as such due to no fault of the said petitioners, SCCH-19 25 MVC 5300/2023 they cannot be denied from availing benefit of compensation towards the death of deceased in the motor vehicle accident. Therefore, as per the dictum laid down in the said citations, This Tribunal has power to grant compensation by applying the principle of pay and recover and insurance company is liable to pay the compensation first and recover the same from the owner as per the award passed by the tribunal. Accordingly, this Tribunal is answer issue No.2 partly in the affirmative.

43. Issue No.3:- for the foregoing reasons this Tribunal proceed to pass the following:-

The Petitioners are entitled for total compensation of Rs.32,14,000/- with interest @ 6% p.a., from the date of petition till its realization.

The Respondent No.1 and 2 jointly and severally liable to pay compensation to the petitioner. Further, Respondent No.2 being Insurer of the offending vehicle of Respondent No.1 is directed to deposit the compensation amount, together with 6% interest within 60 days, from the date of this order. The respondent No.2 shall SCCH-19 26 MVC 5300/2023 recover the same from the respondent No.1.

The Petitioner No.1 is entitled for compensation amount of Rs.18,14,000/- with interest.

The Petitioner No.2 is entitled for compensation amount of Rs.4,00,000/- with interest.

The Petitioner No.3 and 4 are entitled for compensation amount of Rs.5,00,000/- each with interest.

After deposit, out of awarded share compensation amount 50% each, with interest shall be released in favour of the Petitioner No.1 and 2 with proper identification and the remaining their share amount with interest shall be deposited in their names in FD in any nationalized bank, for a period of Three years.

After deposit, the entire share with interest of petitioner No.3 shall be deposited in his name in FD in any nationalized bank for a period of Three years.

After deposit, the entire share with interest of petitioner No.4 shall be deposited in his name in FD in any nationalized bank till her age of majority. Advocate fee is fixed at Rs.1,000/-.

Draw the award accordingly.

(Dictated to the Stenographer directly on computer then corrected by me and pronounced in open court on this the 9th day of May 2025) MOHAN Digitally signed by MOHAN SADASHIV POL SADASHIV Date: 2025.05.17 POL 16:38:47 +0530 (MOHAN SADASHIV POL) XV ASCJ & Member MACT Mayo Hall Unit, Bengaluru.

ANNEXURE List of witnesses examined for Petitioners:

PW.1 : Smt. Mahfujun Nisha.

List of documents marked for Petitioners:

List of Witnesses examined for Respondent:

RW.1 : Sri. Vallabha Bai Patil List of Documents marked for Respondent:

Ex.R.4(a) : Notice inside the Cover.