Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment

Judgment:

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232487',
			'acts' => null,
			'appealno' => 'MFA 103438/2018',
			'appellant' => 'Smt. Renuka Wd/o Satyappa',
			'authreffered' => null,
			'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Dharwad',
			'court_type' => 'HC',
			'decidedon' => '2022-12-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
			'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar',
	'args' => array(
		(int) 0 => '1232487',
		(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
	)
)
$title_for_layout = 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232487',
		'acts' => null,
		'appealno' => 'MFA 103438/2018',
		'appellant' => 'Smt. Renuka Wd/o Satyappa',
		'authreffered' => null,
		'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Dharwad',
		'court_type' => 'HC',
		'decidedon' => '2022-12-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
		'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$args = array(
	(int) 0 => '1232487',
	(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
)
$url = 'https://sooperkanoon.com/case/amp/1232487/smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:',
	(int) 1 => '<p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:',
	(int) 2 => '<p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE ',
	(int) 3 => 'JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ',
	(int) 4 => 'JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF ',
	(int) 5 => 'JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:',
	(int) 6 => '<p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.',
	(int) 7 => '<p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.',
	(int) 8 => '<p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.',
	(int) 9 => '<p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.',
	(int) 10 => '<p>5. From the rival contentions of the parties, Tribunal has famed the issues:',
	(int) 11 => '<p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5',
	(int) 12 => '<p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.',
	(int) 13 => '<p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.',
	(int) 14 => '<p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.',
	(int) 15 => '<p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.',
	(int) 16 => '<p>12. Following point emerges for our determination:',
	(int) 17 => '<p>1. Whether petitioners are entitled for enhancement of compensation?. 8',
	(int) 18 => '<p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.',
	(int) 19 => '<p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.',
	(int) 20 => '<p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10',
	(int) 21 => '<p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.',
	(int) 22 => '<p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.',
	(int) 23 => '<p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:',
	(int) 24 => '<p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:',
	(int) 25 => '<p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:',
	(int) 26 => '<p>19. “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 :',
	(int) 27 => '<p>191. : 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 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 :',
	(int) 28 => '<p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.',
	(int) 29 => '<p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.',
	(int) 30 => '<p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23',
	(int) 31 => '<p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: ',
	(int) 32 => 'ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS',
	(int) 33 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 34
$i = (int) 0
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232487',
			'acts' => null,
			'appealno' => 'MFA 103438/2018',
			'appellant' => 'Smt. Renuka Wd/o Satyappa',
			'authreffered' => null,
			'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Dharwad',
			'court_type' => 'HC',
			'decidedon' => '2022-12-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
			'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar',
	'args' => array(
		(int) 0 => '1232487',
		(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
	)
)
$title_for_layout = 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232487',
		'acts' => null,
		'appealno' => 'MFA 103438/2018',
		'appellant' => 'Smt. Renuka Wd/o Satyappa',
		'authreffered' => null,
		'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Dharwad',
		'court_type' => 'HC',
		'decidedon' => '2022-12-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
		'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$args = array(
	(int) 0 => '1232487',
	(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
)
$url = 'https://sooperkanoon.com/case/amp/1232487/smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:',
	(int) 1 => '<p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:',
	(int) 2 => '<p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE ',
	(int) 3 => 'JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ',
	(int) 4 => 'JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF ',
	(int) 5 => 'JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:',
	(int) 6 => '<p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.',
	(int) 7 => '<p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.',
	(int) 8 => '<p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.',
	(int) 9 => '<p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.',
	(int) 10 => '<p>5. From the rival contentions of the parties, Tribunal has famed the issues:',
	(int) 11 => '<p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5',
	(int) 12 => '<p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.',
	(int) 13 => '<p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.',
	(int) 14 => '<p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.',
	(int) 15 => '<p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.',
	(int) 16 => '<p>12. Following point emerges for our determination:',
	(int) 17 => '<p>1. Whether petitioners are entitled for enhancement of compensation?. 8',
	(int) 18 => '<p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.',
	(int) 19 => '<p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.',
	(int) 20 => '<p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10',
	(int) 21 => '<p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.',
	(int) 22 => '<p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.',
	(int) 23 => '<p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:',
	(int) 24 => '<p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:',
	(int) 25 => '<p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:',
	(int) 26 => '<p>19. “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 :',
	(int) 27 => '<p>191. : 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 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 :',
	(int) 28 => '<p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.',
	(int) 29 => '<p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.',
	(int) 30 => '<p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23',
	(int) 31 => '<p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: ',
	(int) 32 => 'ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS',
	(int) 33 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 34
$i = (int) 1
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232487',
			'acts' => null,
			'appealno' => 'MFA 103438/2018',
			'appellant' => 'Smt. Renuka Wd/o Satyappa',
			'authreffered' => null,
			'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Dharwad',
			'court_type' => 'HC',
			'decidedon' => '2022-12-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
			'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar',
	'args' => array(
		(int) 0 => '1232487',
		(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
	)
)
$title_for_layout = 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232487',
		'acts' => null,
		'appealno' => 'MFA 103438/2018',
		'appellant' => 'Smt. Renuka Wd/o Satyappa',
		'authreffered' => null,
		'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Dharwad',
		'court_type' => 'HC',
		'decidedon' => '2022-12-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
		'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$args = array(
	(int) 0 => '1232487',
	(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
)
$url = 'https://sooperkanoon.com/case/amp/1232487/smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:',
	(int) 1 => '<p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:',
	(int) 2 => '<p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE ',
	(int) 3 => 'JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ',
	(int) 4 => 'JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF ',
	(int) 5 => 'JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:',
	(int) 6 => '<p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.',
	(int) 7 => '<p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.',
	(int) 8 => '<p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.',
	(int) 9 => '<p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.',
	(int) 10 => '<p>5. From the rival contentions of the parties, Tribunal has famed the issues:',
	(int) 11 => '<p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5',
	(int) 12 => '<p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.',
	(int) 13 => '<p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.',
	(int) 14 => '<p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.',
	(int) 15 => '<p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.',
	(int) 16 => '<p>12. Following point emerges for our determination:',
	(int) 17 => '<p>1. Whether petitioners are entitled for enhancement of compensation?. 8',
	(int) 18 => '<p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.',
	(int) 19 => '<p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.',
	(int) 20 => '<p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10',
	(int) 21 => '<p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.',
	(int) 22 => '<p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.',
	(int) 23 => '<p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:',
	(int) 24 => '<p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:',
	(int) 25 => '<p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:',
	(int) 26 => '<p>19. “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 :',
	(int) 27 => '<p>191. : 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 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 :',
	(int) 28 => '<p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.',
	(int) 29 => '<p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.',
	(int) 30 => '<p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23',
	(int) 31 => '<p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: ',
	(int) 32 => 'ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS',
	(int) 33 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 34
$i = (int) 2
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232487',
			'acts' => null,
			'appealno' => 'MFA 103438/2018',
			'appellant' => 'Smt. Renuka Wd/o Satyappa',
			'authreffered' => null,
			'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Dharwad',
			'court_type' => 'HC',
			'decidedon' => '2022-12-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
			'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar',
	'args' => array(
		(int) 0 => '1232487',
		(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
	)
)
$title_for_layout = 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232487',
		'acts' => null,
		'appealno' => 'MFA 103438/2018',
		'appellant' => 'Smt. Renuka Wd/o Satyappa',
		'authreffered' => null,
		'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Dharwad',
		'court_type' => 'HC',
		'decidedon' => '2022-12-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
		'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$args = array(
	(int) 0 => '1232487',
	(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
)
$url = 'https://sooperkanoon.com/case/amp/1232487/smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:',
	(int) 1 => '<p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:',
	(int) 2 => '<p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE ',
	(int) 3 => 'JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ',
	(int) 4 => 'JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF ',
	(int) 5 => 'JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:',
	(int) 6 => '<p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.',
	(int) 7 => '<p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.',
	(int) 8 => '<p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.',
	(int) 9 => '<p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.',
	(int) 10 => '<p>5. From the rival contentions of the parties, Tribunal has famed the issues:',
	(int) 11 => '<p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5',
	(int) 12 => '<p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.',
	(int) 13 => '<p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.',
	(int) 14 => '<p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.',
	(int) 15 => '<p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.',
	(int) 16 => '<p>12. Following point emerges for our determination:',
	(int) 17 => '<p>1. Whether petitioners are entitled for enhancement of compensation?. 8',
	(int) 18 => '<p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.',
	(int) 19 => '<p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.',
	(int) 20 => '<p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10',
	(int) 21 => '<p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.',
	(int) 22 => '<p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.',
	(int) 23 => '<p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:',
	(int) 24 => '<p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:',
	(int) 25 => '<p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:',
	(int) 26 => '<p>19. “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 :',
	(int) 27 => '<p>191. : 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 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 :',
	(int) 28 => '<p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.',
	(int) 29 => '<p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.',
	(int) 30 => '<p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23',
	(int) 31 => '<p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: ',
	(int) 32 => 'ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS',
	(int) 33 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 34
$i = (int) 3
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

JUDGMENT

AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232487',
			'acts' => null,
			'appealno' => 'MFA 103438/2018',
			'appellant' => 'Smt. Renuka Wd/o Satyappa',
			'authreffered' => null,
			'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Dharwad',
			'court_type' => 'HC',
			'decidedon' => '2022-12-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
			'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar',
	'args' => array(
		(int) 0 => '1232487',
		(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
	)
)
$title_for_layout = 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232487',
		'acts' => null,
		'appealno' => 'MFA 103438/2018',
		'appellant' => 'Smt. Renuka Wd/o Satyappa',
		'authreffered' => null,
		'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Dharwad',
		'court_type' => 'HC',
		'decidedon' => '2022-12-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
		'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$args = array(
	(int) 0 => '1232487',
	(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
)
$url = 'https://sooperkanoon.com/case/amp/1232487/smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:',
	(int) 1 => '<p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:',
	(int) 2 => '<p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE ',
	(int) 3 => 'JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ',
	(int) 4 => 'JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF ',
	(int) 5 => 'JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:',
	(int) 6 => '<p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.',
	(int) 7 => '<p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.',
	(int) 8 => '<p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.',
	(int) 9 => '<p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.',
	(int) 10 => '<p>5. From the rival contentions of the parties, Tribunal has famed the issues:',
	(int) 11 => '<p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5',
	(int) 12 => '<p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.',
	(int) 13 => '<p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.',
	(int) 14 => '<p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.',
	(int) 15 => '<p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.',
	(int) 16 => '<p>12. Following point emerges for our determination:',
	(int) 17 => '<p>1. Whether petitioners are entitled for enhancement of compensation?. 8',
	(int) 18 => '<p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.',
	(int) 19 => '<p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.',
	(int) 20 => '<p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10',
	(int) 21 => '<p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.',
	(int) 22 => '<p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.',
	(int) 23 => '<p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:',
	(int) 24 => '<p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:',
	(int) 25 => '<p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:',
	(int) 26 => '<p>19. “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 :',
	(int) 27 => '<p>191. : 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 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 :',
	(int) 28 => '<p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.',
	(int) 29 => '<p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.',
	(int) 30 => '<p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23',
	(int) 31 => '<p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: ',
	(int) 32 => 'ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS',
	(int) 33 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 34
$i = (int) 4
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

JUDGMENT

ON3110.2022 COMING ON FOR PRONOUNCEMENT OF

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232487',
			'acts' => null,
			'appealno' => 'MFA 103438/2018',
			'appellant' => 'Smt. Renuka Wd/o Satyappa',
			'authreffered' => null,
			'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Dharwad',
			'court_type' => 'HC',
			'decidedon' => '2022-12-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
			'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar',
	'args' => array(
		(int) 0 => '1232487',
		(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
	)
)
$title_for_layout = 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232487',
		'acts' => null,
		'appealno' => 'MFA 103438/2018',
		'appellant' => 'Smt. Renuka Wd/o Satyappa',
		'authreffered' => null,
		'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Dharwad',
		'court_type' => 'HC',
		'decidedon' => '2022-12-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
		'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$args = array(
	(int) 0 => '1232487',
	(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
)
$url = 'https://sooperkanoon.com/case/amp/1232487/smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:',
	(int) 1 => '<p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:',
	(int) 2 => '<p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE ',
	(int) 3 => 'JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ',
	(int) 4 => 'JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF ',
	(int) 5 => 'JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:',
	(int) 6 => '<p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.',
	(int) 7 => '<p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.',
	(int) 8 => '<p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.',
	(int) 9 => '<p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.',
	(int) 10 => '<p>5. From the rival contentions of the parties, Tribunal has famed the issues:',
	(int) 11 => '<p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5',
	(int) 12 => '<p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.',
	(int) 13 => '<p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.',
	(int) 14 => '<p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.',
	(int) 15 => '<p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.',
	(int) 16 => '<p>12. Following point emerges for our determination:',
	(int) 17 => '<p>1. Whether petitioners are entitled for enhancement of compensation?. 8',
	(int) 18 => '<p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.',
	(int) 19 => '<p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.',
	(int) 20 => '<p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10',
	(int) 21 => '<p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.',
	(int) 22 => '<p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.',
	(int) 23 => '<p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:',
	(int) 24 => '<p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:',
	(int) 25 => '<p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:',
	(int) 26 => '<p>19. “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 :',
	(int) 27 => '<p>191. : 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 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 :',
	(int) 28 => '<p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.',
	(int) 29 => '<p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.',
	(int) 30 => '<p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23',
	(int) 31 => '<p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: ',
	(int) 32 => 'ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS',
	(int) 33 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 34
$i = (int) 5
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

JUDGMENT

THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232487',
			'acts' => null,
			'appealno' => 'MFA 103438/2018',
			'appellant' => 'Smt. Renuka Wd/o Satyappa',
			'authreffered' => null,
			'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Dharwad',
			'court_type' => 'HC',
			'decidedon' => '2022-12-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
			'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar',
	'args' => array(
		(int) 0 => '1232487',
		(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
	)
)
$title_for_layout = 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232487',
		'acts' => null,
		'appealno' => 'MFA 103438/2018',
		'appellant' => 'Smt. Renuka Wd/o Satyappa',
		'authreffered' => null,
		'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Dharwad',
		'court_type' => 'HC',
		'decidedon' => '2022-12-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
		'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$args = array(
	(int) 0 => '1232487',
	(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
)
$url = 'https://sooperkanoon.com/case/amp/1232487/smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:',
	(int) 1 => '<p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:',
	(int) 2 => '<p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE ',
	(int) 3 => 'JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ',
	(int) 4 => 'JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF ',
	(int) 5 => 'JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:',
	(int) 6 => '<p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.',
	(int) 7 => '<p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.',
	(int) 8 => '<p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.',
	(int) 9 => '<p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.',
	(int) 10 => '<p>5. From the rival contentions of the parties, Tribunal has famed the issues:',
	(int) 11 => '<p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5',
	(int) 12 => '<p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.',
	(int) 13 => '<p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.',
	(int) 14 => '<p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.',
	(int) 15 => '<p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.',
	(int) 16 => '<p>12. Following point emerges for our determination:',
	(int) 17 => '<p>1. Whether petitioners are entitled for enhancement of compensation?. 8',
	(int) 18 => '<p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.',
	(int) 19 => '<p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.',
	(int) 20 => '<p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10',
	(int) 21 => '<p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.',
	(int) 22 => '<p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.',
	(int) 23 => '<p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:',
	(int) 24 => '<p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:',
	(int) 25 => '<p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:',
	(int) 26 => '<p>19. “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 :',
	(int) 27 => '<p>191. : 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 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 :',
	(int) 28 => '<p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.',
	(int) 29 => '<p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.',
	(int) 30 => '<p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23',
	(int) 31 => '<p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: ',
	(int) 32 => 'ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS',
	(int) 33 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 34
$i = (int) 6
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232487',
			'acts' => null,
			'appealno' => 'MFA 103438/2018',
			'appellant' => 'Smt. Renuka Wd/o Satyappa',
			'authreffered' => null,
			'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Dharwad',
			'court_type' => 'HC',
			'decidedon' => '2022-12-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
			'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar',
	'args' => array(
		(int) 0 => '1232487',
		(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
	)
)
$title_for_layout = 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232487',
		'acts' => null,
		'appealno' => 'MFA 103438/2018',
		'appellant' => 'Smt. Renuka Wd/o Satyappa',
		'authreffered' => null,
		'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Dharwad',
		'court_type' => 'HC',
		'decidedon' => '2022-12-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
		'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$args = array(
	(int) 0 => '1232487',
	(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
)
$url = 'https://sooperkanoon.com/case/amp/1232487/smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:',
	(int) 1 => '<p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:',
	(int) 2 => '<p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE ',
	(int) 3 => 'JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ',
	(int) 4 => 'JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF ',
	(int) 5 => 'JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:',
	(int) 6 => '<p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.',
	(int) 7 => '<p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.',
	(int) 8 => '<p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.',
	(int) 9 => '<p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.',
	(int) 10 => '<p>5. From the rival contentions of the parties, Tribunal has famed the issues:',
	(int) 11 => '<p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5',
	(int) 12 => '<p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.',
	(int) 13 => '<p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.',
	(int) 14 => '<p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.',
	(int) 15 => '<p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.',
	(int) 16 => '<p>12. Following point emerges for our determination:',
	(int) 17 => '<p>1. Whether petitioners are entitled for enhancement of compensation?. 8',
	(int) 18 => '<p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.',
	(int) 19 => '<p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.',
	(int) 20 => '<p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10',
	(int) 21 => '<p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.',
	(int) 22 => '<p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.',
	(int) 23 => '<p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:',
	(int) 24 => '<p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:',
	(int) 25 => '<p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:',
	(int) 26 => '<p>19. “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 :',
	(int) 27 => '<p>191. : 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 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 :',
	(int) 28 => '<p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.',
	(int) 29 => '<p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.',
	(int) 30 => '<p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23',
	(int) 31 => '<p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: ',
	(int) 32 => 'ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS',
	(int) 33 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 34
$i = (int) 7
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232487',
			'acts' => null,
			'appealno' => 'MFA 103438/2018',
			'appellant' => 'Smt. Renuka Wd/o Satyappa',
			'authreffered' => null,
			'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Dharwad',
			'court_type' => 'HC',
			'decidedon' => '2022-12-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
			'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar',
	'args' => array(
		(int) 0 => '1232487',
		(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
	)
)
$title_for_layout = 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232487',
		'acts' => null,
		'appealno' => 'MFA 103438/2018',
		'appellant' => 'Smt. Renuka Wd/o Satyappa',
		'authreffered' => null,
		'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Dharwad',
		'court_type' => 'HC',
		'decidedon' => '2022-12-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
		'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$args = array(
	(int) 0 => '1232487',
	(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
)
$url = 'https://sooperkanoon.com/case/amp/1232487/smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:',
	(int) 1 => '<p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:',
	(int) 2 => '<p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE ',
	(int) 3 => 'JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ',
	(int) 4 => 'JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF ',
	(int) 5 => 'JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:',
	(int) 6 => '<p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.',
	(int) 7 => '<p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.',
	(int) 8 => '<p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.',
	(int) 9 => '<p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.',
	(int) 10 => '<p>5. From the rival contentions of the parties, Tribunal has famed the issues:',
	(int) 11 => '<p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5',
	(int) 12 => '<p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.',
	(int) 13 => '<p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.',
	(int) 14 => '<p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.',
	(int) 15 => '<p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.',
	(int) 16 => '<p>12. Following point emerges for our determination:',
	(int) 17 => '<p>1. Whether petitioners are entitled for enhancement of compensation?. 8',
	(int) 18 => '<p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.',
	(int) 19 => '<p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.',
	(int) 20 => '<p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10',
	(int) 21 => '<p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.',
	(int) 22 => '<p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.',
	(int) 23 => '<p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:',
	(int) 24 => '<p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:',
	(int) 25 => '<p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:',
	(int) 26 => '<p>19. “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 :',
	(int) 27 => '<p>191. : 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 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 :',
	(int) 28 => '<p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.',
	(int) 29 => '<p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.',
	(int) 30 => '<p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23',
	(int) 31 => '<p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: ',
	(int) 32 => 'ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS',
	(int) 33 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 34
$i = (int) 8
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232487',
			'acts' => null,
			'appealno' => 'MFA 103438/2018',
			'appellant' => 'Smt. Renuka Wd/o Satyappa',
			'authreffered' => null,
			'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Dharwad',
			'court_type' => 'HC',
			'decidedon' => '2022-12-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
			'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar',
	'args' => array(
		(int) 0 => '1232487',
		(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
	)
)
$title_for_layout = 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232487',
		'acts' => null,
		'appealno' => 'MFA 103438/2018',
		'appellant' => 'Smt. Renuka Wd/o Satyappa',
		'authreffered' => null,
		'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Dharwad',
		'court_type' => 'HC',
		'decidedon' => '2022-12-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
		'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$args = array(
	(int) 0 => '1232487',
	(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
)
$url = 'https://sooperkanoon.com/case/amp/1232487/smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:',
	(int) 1 => '<p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:',
	(int) 2 => '<p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE ',
	(int) 3 => 'JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ',
	(int) 4 => 'JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF ',
	(int) 5 => 'JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:',
	(int) 6 => '<p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.',
	(int) 7 => '<p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.',
	(int) 8 => '<p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.',
	(int) 9 => '<p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.',
	(int) 10 => '<p>5. From the rival contentions of the parties, Tribunal has famed the issues:',
	(int) 11 => '<p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5',
	(int) 12 => '<p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.',
	(int) 13 => '<p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.',
	(int) 14 => '<p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.',
	(int) 15 => '<p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.',
	(int) 16 => '<p>12. Following point emerges for our determination:',
	(int) 17 => '<p>1. Whether petitioners are entitled for enhancement of compensation?. 8',
	(int) 18 => '<p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.',
	(int) 19 => '<p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.',
	(int) 20 => '<p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10',
	(int) 21 => '<p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.',
	(int) 22 => '<p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.',
	(int) 23 => '<p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:',
	(int) 24 => '<p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:',
	(int) 25 => '<p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:',
	(int) 26 => '<p>19. “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 :',
	(int) 27 => '<p>191. : 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 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 :',
	(int) 28 => '<p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.',
	(int) 29 => '<p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.',
	(int) 30 => '<p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23',
	(int) 31 => '<p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: ',
	(int) 32 => 'ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS',
	(int) 33 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 34
$i = (int) 9
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232487',
			'acts' => null,
			'appealno' => 'MFA 103438/2018',
			'appellant' => 'Smt. Renuka Wd/o Satyappa',
			'authreffered' => null,
			'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Dharwad',
			'court_type' => 'HC',
			'decidedon' => '2022-12-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
			'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar',
	'args' => array(
		(int) 0 => '1232487',
		(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
	)
)
$title_for_layout = 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232487',
		'acts' => null,
		'appealno' => 'MFA 103438/2018',
		'appellant' => 'Smt. Renuka Wd/o Satyappa',
		'authreffered' => null,
		'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Dharwad',
		'court_type' => 'HC',
		'decidedon' => '2022-12-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
		'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$args = array(
	(int) 0 => '1232487',
	(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
)
$url = 'https://sooperkanoon.com/case/amp/1232487/smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:',
	(int) 1 => '<p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:',
	(int) 2 => '<p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE ',
	(int) 3 => 'JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ',
	(int) 4 => 'JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF ',
	(int) 5 => 'JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:',
	(int) 6 => '<p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.',
	(int) 7 => '<p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.',
	(int) 8 => '<p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.',
	(int) 9 => '<p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.',
	(int) 10 => '<p>5. From the rival contentions of the parties, Tribunal has famed the issues:',
	(int) 11 => '<p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5',
	(int) 12 => '<p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.',
	(int) 13 => '<p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.',
	(int) 14 => '<p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.',
	(int) 15 => '<p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.',
	(int) 16 => '<p>12. Following point emerges for our determination:',
	(int) 17 => '<p>1. Whether petitioners are entitled for enhancement of compensation?. 8',
	(int) 18 => '<p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.',
	(int) 19 => '<p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.',
	(int) 20 => '<p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10',
	(int) 21 => '<p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.',
	(int) 22 => '<p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.',
	(int) 23 => '<p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:',
	(int) 24 => '<p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:',
	(int) 25 => '<p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:',
	(int) 26 => '<p>19. “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 :',
	(int) 27 => '<p>191. : 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 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 :',
	(int) 28 => '<p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.',
	(int) 29 => '<p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.',
	(int) 30 => '<p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23',
	(int) 31 => '<p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: ',
	(int) 32 => 'ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS',
	(int) 33 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 34
$i = (int) 10
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

5. From the rival contentions of the parties, Tribunal has famed the issues:

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232487',
			'acts' => null,
			'appealno' => 'MFA 103438/2018',
			'appellant' => 'Smt. Renuka Wd/o Satyappa',
			'authreffered' => null,
			'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Dharwad',
			'court_type' => 'HC',
			'decidedon' => '2022-12-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
			'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar',
	'args' => array(
		(int) 0 => '1232487',
		(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
	)
)
$title_for_layout = 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232487',
		'acts' => null,
		'appealno' => 'MFA 103438/2018',
		'appellant' => 'Smt. Renuka Wd/o Satyappa',
		'authreffered' => null,
		'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Dharwad',
		'court_type' => 'HC',
		'decidedon' => '2022-12-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
		'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$args = array(
	(int) 0 => '1232487',
	(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
)
$url = 'https://sooperkanoon.com/case/amp/1232487/smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:',
	(int) 1 => '<p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:',
	(int) 2 => '<p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE ',
	(int) 3 => 'JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ',
	(int) 4 => 'JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF ',
	(int) 5 => 'JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:',
	(int) 6 => '<p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.',
	(int) 7 => '<p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.',
	(int) 8 => '<p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.',
	(int) 9 => '<p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.',
	(int) 10 => '<p>5. From the rival contentions of the parties, Tribunal has famed the issues:',
	(int) 11 => '<p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5',
	(int) 12 => '<p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.',
	(int) 13 => '<p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.',
	(int) 14 => '<p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.',
	(int) 15 => '<p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.',
	(int) 16 => '<p>12. Following point emerges for our determination:',
	(int) 17 => '<p>1. Whether petitioners are entitled for enhancement of compensation?. 8',
	(int) 18 => '<p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.',
	(int) 19 => '<p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.',
	(int) 20 => '<p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10',
	(int) 21 => '<p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.',
	(int) 22 => '<p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.',
	(int) 23 => '<p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:',
	(int) 24 => '<p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:',
	(int) 25 => '<p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:',
	(int) 26 => '<p>19. “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 :',
	(int) 27 => '<p>191. : 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 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 :',
	(int) 28 => '<p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.',
	(int) 29 => '<p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.',
	(int) 30 => '<p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23',
	(int) 31 => '<p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: ',
	(int) 32 => 'ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS',
	(int) 33 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 34
$i = (int) 11
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232487',
			'acts' => null,
			'appealno' => 'MFA 103438/2018',
			'appellant' => 'Smt. Renuka Wd/o Satyappa',
			'authreffered' => null,
			'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Dharwad',
			'court_type' => 'HC',
			'decidedon' => '2022-12-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
			'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar',
	'args' => array(
		(int) 0 => '1232487',
		(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
	)
)
$title_for_layout = 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232487',
		'acts' => null,
		'appealno' => 'MFA 103438/2018',
		'appellant' => 'Smt. Renuka Wd/o Satyappa',
		'authreffered' => null,
		'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Dharwad',
		'court_type' => 'HC',
		'decidedon' => '2022-12-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
		'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$args = array(
	(int) 0 => '1232487',
	(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
)
$url = 'https://sooperkanoon.com/case/amp/1232487/smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:',
	(int) 1 => '<p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:',
	(int) 2 => '<p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE ',
	(int) 3 => 'JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ',
	(int) 4 => 'JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF ',
	(int) 5 => 'JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:',
	(int) 6 => '<p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.',
	(int) 7 => '<p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.',
	(int) 8 => '<p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.',
	(int) 9 => '<p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.',
	(int) 10 => '<p>5. From the rival contentions of the parties, Tribunal has famed the issues:',
	(int) 11 => '<p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5',
	(int) 12 => '<p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.',
	(int) 13 => '<p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.',
	(int) 14 => '<p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.',
	(int) 15 => '<p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.',
	(int) 16 => '<p>12. Following point emerges for our determination:',
	(int) 17 => '<p>1. Whether petitioners are entitled for enhancement of compensation?. 8',
	(int) 18 => '<p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.',
	(int) 19 => '<p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.',
	(int) 20 => '<p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10',
	(int) 21 => '<p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.',
	(int) 22 => '<p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.',
	(int) 23 => '<p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:',
	(int) 24 => '<p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:',
	(int) 25 => '<p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:',
	(int) 26 => '<p>19. “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 :',
	(int) 27 => '<p>191. : 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 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 :',
	(int) 28 => '<p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.',
	(int) 29 => '<p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.',
	(int) 30 => '<p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23',
	(int) 31 => '<p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: ',
	(int) 32 => 'ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS',
	(int) 33 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 34
$i = (int) 12
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232487',
			'acts' => null,
			'appealno' => 'MFA 103438/2018',
			'appellant' => 'Smt. Renuka Wd/o Satyappa',
			'authreffered' => null,
			'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Dharwad',
			'court_type' => 'HC',
			'decidedon' => '2022-12-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
			'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar',
	'args' => array(
		(int) 0 => '1232487',
		(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
	)
)
$title_for_layout = 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232487',
		'acts' => null,
		'appealno' => 'MFA 103438/2018',
		'appellant' => 'Smt. Renuka Wd/o Satyappa',
		'authreffered' => null,
		'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Dharwad',
		'court_type' => 'HC',
		'decidedon' => '2022-12-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
		'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$args = array(
	(int) 0 => '1232487',
	(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
)
$url = 'https://sooperkanoon.com/case/amp/1232487/smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:',
	(int) 1 => '<p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:',
	(int) 2 => '<p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE ',
	(int) 3 => 'JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ',
	(int) 4 => 'JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF ',
	(int) 5 => 'JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:',
	(int) 6 => '<p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.',
	(int) 7 => '<p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.',
	(int) 8 => '<p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.',
	(int) 9 => '<p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.',
	(int) 10 => '<p>5. From the rival contentions of the parties, Tribunal has famed the issues:',
	(int) 11 => '<p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5',
	(int) 12 => '<p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.',
	(int) 13 => '<p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.',
	(int) 14 => '<p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.',
	(int) 15 => '<p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.',
	(int) 16 => '<p>12. Following point emerges for our determination:',
	(int) 17 => '<p>1. Whether petitioners are entitled for enhancement of compensation?. 8',
	(int) 18 => '<p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.',
	(int) 19 => '<p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.',
	(int) 20 => '<p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10',
	(int) 21 => '<p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.',
	(int) 22 => '<p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.',
	(int) 23 => '<p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:',
	(int) 24 => '<p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:',
	(int) 25 => '<p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:',
	(int) 26 => '<p>19. “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 :',
	(int) 27 => '<p>191. : 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 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 :',
	(int) 28 => '<p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.',
	(int) 29 => '<p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.',
	(int) 30 => '<p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23',
	(int) 31 => '<p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: ',
	(int) 32 => 'ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS',
	(int) 33 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 34
$i = (int) 13
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232487',
			'acts' => null,
			'appealno' => 'MFA 103438/2018',
			'appellant' => 'Smt. Renuka Wd/o Satyappa',
			'authreffered' => null,
			'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Dharwad',
			'court_type' => 'HC',
			'decidedon' => '2022-12-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
			'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar',
	'args' => array(
		(int) 0 => '1232487',
		(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
	)
)
$title_for_layout = 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232487',
		'acts' => null,
		'appealno' => 'MFA 103438/2018',
		'appellant' => 'Smt. Renuka Wd/o Satyappa',
		'authreffered' => null,
		'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Dharwad',
		'court_type' => 'HC',
		'decidedon' => '2022-12-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
		'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$args = array(
	(int) 0 => '1232487',
	(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
)
$url = 'https://sooperkanoon.com/case/amp/1232487/smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:',
	(int) 1 => '<p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:',
	(int) 2 => '<p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE ',
	(int) 3 => 'JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ',
	(int) 4 => 'JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF ',
	(int) 5 => 'JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:',
	(int) 6 => '<p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.',
	(int) 7 => '<p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.',
	(int) 8 => '<p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.',
	(int) 9 => '<p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.',
	(int) 10 => '<p>5. From the rival contentions of the parties, Tribunal has famed the issues:',
	(int) 11 => '<p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5',
	(int) 12 => '<p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.',
	(int) 13 => '<p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.',
	(int) 14 => '<p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.',
	(int) 15 => '<p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.',
	(int) 16 => '<p>12. Following point emerges for our determination:',
	(int) 17 => '<p>1. Whether petitioners are entitled for enhancement of compensation?. 8',
	(int) 18 => '<p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.',
	(int) 19 => '<p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.',
	(int) 20 => '<p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10',
	(int) 21 => '<p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.',
	(int) 22 => '<p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.',
	(int) 23 => '<p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:',
	(int) 24 => '<p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:',
	(int) 25 => '<p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:',
	(int) 26 => '<p>19. “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 :',
	(int) 27 => '<p>191. : 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 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 :',
	(int) 28 => '<p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.',
	(int) 29 => '<p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.',
	(int) 30 => '<p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23',
	(int) 31 => '<p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: ',
	(int) 32 => 'ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS',
	(int) 33 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 34
$i = (int) 14
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232487',
			'acts' => null,
			'appealno' => 'MFA 103438/2018',
			'appellant' => 'Smt. Renuka Wd/o Satyappa',
			'authreffered' => null,
			'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Dharwad',
			'court_type' => 'HC',
			'decidedon' => '2022-12-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
			'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar',
	'args' => array(
		(int) 0 => '1232487',
		(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
	)
)
$title_for_layout = 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232487',
		'acts' => null,
		'appealno' => 'MFA 103438/2018',
		'appellant' => 'Smt. Renuka Wd/o Satyappa',
		'authreffered' => null,
		'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Dharwad',
		'court_type' => 'HC',
		'decidedon' => '2022-12-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
		'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$args = array(
	(int) 0 => '1232487',
	(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
)
$url = 'https://sooperkanoon.com/case/amp/1232487/smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:',
	(int) 1 => '<p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:',
	(int) 2 => '<p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE ',
	(int) 3 => 'JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ',
	(int) 4 => 'JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF ',
	(int) 5 => 'JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:',
	(int) 6 => '<p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.',
	(int) 7 => '<p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.',
	(int) 8 => '<p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.',
	(int) 9 => '<p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.',
	(int) 10 => '<p>5. From the rival contentions of the parties, Tribunal has famed the issues:',
	(int) 11 => '<p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5',
	(int) 12 => '<p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.',
	(int) 13 => '<p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.',
	(int) 14 => '<p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.',
	(int) 15 => '<p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.',
	(int) 16 => '<p>12. Following point emerges for our determination:',
	(int) 17 => '<p>1. Whether petitioners are entitled for enhancement of compensation?. 8',
	(int) 18 => '<p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.',
	(int) 19 => '<p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.',
	(int) 20 => '<p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10',
	(int) 21 => '<p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.',
	(int) 22 => '<p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.',
	(int) 23 => '<p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:',
	(int) 24 => '<p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:',
	(int) 25 => '<p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:',
	(int) 26 => '<p>19. “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 :',
	(int) 27 => '<p>191. : 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 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 :',
	(int) 28 => '<p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.',
	(int) 29 => '<p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.',
	(int) 30 => '<p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23',
	(int) 31 => '<p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: ',
	(int) 32 => 'ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS',
	(int) 33 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 34
$i = (int) 15
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232487',
			'acts' => null,
			'appealno' => 'MFA 103438/2018',
			'appellant' => 'Smt. Renuka Wd/o Satyappa',
			'authreffered' => null,
			'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Dharwad',
			'court_type' => 'HC',
			'decidedon' => '2022-12-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
			'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar',
	'args' => array(
		(int) 0 => '1232487',
		(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
	)
)
$title_for_layout = 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232487',
		'acts' => null,
		'appealno' => 'MFA 103438/2018',
		'appellant' => 'Smt. Renuka Wd/o Satyappa',
		'authreffered' => null,
		'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Dharwad',
		'court_type' => 'HC',
		'decidedon' => '2022-12-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
		'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$args = array(
	(int) 0 => '1232487',
	(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
)
$url = 'https://sooperkanoon.com/case/amp/1232487/smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:',
	(int) 1 => '<p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:',
	(int) 2 => '<p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE ',
	(int) 3 => 'JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ',
	(int) 4 => 'JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF ',
	(int) 5 => 'JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:',
	(int) 6 => '<p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.',
	(int) 7 => '<p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.',
	(int) 8 => '<p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.',
	(int) 9 => '<p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.',
	(int) 10 => '<p>5. From the rival contentions of the parties, Tribunal has famed the issues:',
	(int) 11 => '<p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5',
	(int) 12 => '<p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.',
	(int) 13 => '<p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.',
	(int) 14 => '<p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.',
	(int) 15 => '<p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.',
	(int) 16 => '<p>12. Following point emerges for our determination:',
	(int) 17 => '<p>1. Whether petitioners are entitled for enhancement of compensation?. 8',
	(int) 18 => '<p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.',
	(int) 19 => '<p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.',
	(int) 20 => '<p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10',
	(int) 21 => '<p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.',
	(int) 22 => '<p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.',
	(int) 23 => '<p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:',
	(int) 24 => '<p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:',
	(int) 25 => '<p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:',
	(int) 26 => '<p>19. “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 :',
	(int) 27 => '<p>191. : 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 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 :',
	(int) 28 => '<p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.',
	(int) 29 => '<p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.',
	(int) 30 => '<p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23',
	(int) 31 => '<p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: ',
	(int) 32 => 'ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS',
	(int) 33 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 34
$i = (int) 16
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

12. Following point emerges for our determination:

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232487',
			'acts' => null,
			'appealno' => 'MFA 103438/2018',
			'appellant' => 'Smt. Renuka Wd/o Satyappa',
			'authreffered' => null,
			'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Dharwad',
			'court_type' => 'HC',
			'decidedon' => '2022-12-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
			'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar',
	'args' => array(
		(int) 0 => '1232487',
		(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
	)
)
$title_for_layout = 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232487',
		'acts' => null,
		'appealno' => 'MFA 103438/2018',
		'appellant' => 'Smt. Renuka Wd/o Satyappa',
		'authreffered' => null,
		'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Dharwad',
		'court_type' => 'HC',
		'decidedon' => '2022-12-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
		'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$args = array(
	(int) 0 => '1232487',
	(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
)
$url = 'https://sooperkanoon.com/case/amp/1232487/smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:',
	(int) 1 => '<p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:',
	(int) 2 => '<p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE ',
	(int) 3 => 'JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ',
	(int) 4 => 'JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF ',
	(int) 5 => 'JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:',
	(int) 6 => '<p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.',
	(int) 7 => '<p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.',
	(int) 8 => '<p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.',
	(int) 9 => '<p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.',
	(int) 10 => '<p>5. From the rival contentions of the parties, Tribunal has famed the issues:',
	(int) 11 => '<p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5',
	(int) 12 => '<p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.',
	(int) 13 => '<p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.',
	(int) 14 => '<p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.',
	(int) 15 => '<p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.',
	(int) 16 => '<p>12. Following point emerges for our determination:',
	(int) 17 => '<p>1. Whether petitioners are entitled for enhancement of compensation?. 8',
	(int) 18 => '<p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.',
	(int) 19 => '<p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.',
	(int) 20 => '<p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10',
	(int) 21 => '<p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.',
	(int) 22 => '<p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.',
	(int) 23 => '<p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:',
	(int) 24 => '<p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:',
	(int) 25 => '<p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:',
	(int) 26 => '<p>19. “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 :',
	(int) 27 => '<p>191. : 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 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 :',
	(int) 28 => '<p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.',
	(int) 29 => '<p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.',
	(int) 30 => '<p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23',
	(int) 31 => '<p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: ',
	(int) 32 => 'ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS',
	(int) 33 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 34
$i = (int) 17
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

1. Whether petitioners are entitled for enhancement of compensation?. 8

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232487',
			'acts' => null,
			'appealno' => 'MFA 103438/2018',
			'appellant' => 'Smt. Renuka Wd/o Satyappa',
			'authreffered' => null,
			'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Dharwad',
			'court_type' => 'HC',
			'decidedon' => '2022-12-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
			'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar',
	'args' => array(
		(int) 0 => '1232487',
		(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
	)
)
$title_for_layout = 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232487',
		'acts' => null,
		'appealno' => 'MFA 103438/2018',
		'appellant' => 'Smt. Renuka Wd/o Satyappa',
		'authreffered' => null,
		'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Dharwad',
		'court_type' => 'HC',
		'decidedon' => '2022-12-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
		'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$args = array(
	(int) 0 => '1232487',
	(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
)
$url = 'https://sooperkanoon.com/case/amp/1232487/smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:',
	(int) 1 => '<p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:',
	(int) 2 => '<p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE ',
	(int) 3 => 'JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ',
	(int) 4 => 'JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF ',
	(int) 5 => 'JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:',
	(int) 6 => '<p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.',
	(int) 7 => '<p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.',
	(int) 8 => '<p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.',
	(int) 9 => '<p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.',
	(int) 10 => '<p>5. From the rival contentions of the parties, Tribunal has famed the issues:',
	(int) 11 => '<p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5',
	(int) 12 => '<p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.',
	(int) 13 => '<p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.',
	(int) 14 => '<p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.',
	(int) 15 => '<p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.',
	(int) 16 => '<p>12. Following point emerges for our determination:',
	(int) 17 => '<p>1. Whether petitioners are entitled for enhancement of compensation?. 8',
	(int) 18 => '<p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.',
	(int) 19 => '<p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.',
	(int) 20 => '<p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10',
	(int) 21 => '<p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.',
	(int) 22 => '<p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.',
	(int) 23 => '<p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:',
	(int) 24 => '<p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:',
	(int) 25 => '<p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:',
	(int) 26 => '<p>19. “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 :',
	(int) 27 => '<p>191. : 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 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 :',
	(int) 28 => '<p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.',
	(int) 29 => '<p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.',
	(int) 30 => '<p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23',
	(int) 31 => '<p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: ',
	(int) 32 => 'ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS',
	(int) 33 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 34
$i = (int) 18
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232487',
			'acts' => null,
			'appealno' => 'MFA 103438/2018',
			'appellant' => 'Smt. Renuka Wd/o Satyappa',
			'authreffered' => null,
			'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Dharwad',
			'court_type' => 'HC',
			'decidedon' => '2022-12-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
			'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar',
	'args' => array(
		(int) 0 => '1232487',
		(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
	)
)
$title_for_layout = 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232487',
		'acts' => null,
		'appealno' => 'MFA 103438/2018',
		'appellant' => 'Smt. Renuka Wd/o Satyappa',
		'authreffered' => null,
		'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Dharwad',
		'court_type' => 'HC',
		'decidedon' => '2022-12-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
		'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$args = array(
	(int) 0 => '1232487',
	(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
)
$url = 'https://sooperkanoon.com/case/amp/1232487/smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:',
	(int) 1 => '<p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:',
	(int) 2 => '<p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE ',
	(int) 3 => 'JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ',
	(int) 4 => 'JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF ',
	(int) 5 => 'JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:',
	(int) 6 => '<p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.',
	(int) 7 => '<p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.',
	(int) 8 => '<p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.',
	(int) 9 => '<p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.',
	(int) 10 => '<p>5. From the rival contentions of the parties, Tribunal has famed the issues:',
	(int) 11 => '<p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5',
	(int) 12 => '<p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.',
	(int) 13 => '<p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.',
	(int) 14 => '<p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.',
	(int) 15 => '<p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.',
	(int) 16 => '<p>12. Following point emerges for our determination:',
	(int) 17 => '<p>1. Whether petitioners are entitled for enhancement of compensation?. 8',
	(int) 18 => '<p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.',
	(int) 19 => '<p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.',
	(int) 20 => '<p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10',
	(int) 21 => '<p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.',
	(int) 22 => '<p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.',
	(int) 23 => '<p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:',
	(int) 24 => '<p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:',
	(int) 25 => '<p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:',
	(int) 26 => '<p>19. “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 :',
	(int) 27 => '<p>191. : 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 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 :',
	(int) 28 => '<p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.',
	(int) 29 => '<p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.',
	(int) 30 => '<p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23',
	(int) 31 => '<p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: ',
	(int) 32 => 'ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS',
	(int) 33 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 34
$i = (int) 19
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232487',
			'acts' => null,
			'appealno' => 'MFA 103438/2018',
			'appellant' => 'Smt. Renuka Wd/o Satyappa',
			'authreffered' => null,
			'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Dharwad',
			'court_type' => 'HC',
			'decidedon' => '2022-12-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
			'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar',
	'args' => array(
		(int) 0 => '1232487',
		(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
	)
)
$title_for_layout = 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232487',
		'acts' => null,
		'appealno' => 'MFA 103438/2018',
		'appellant' => 'Smt. Renuka Wd/o Satyappa',
		'authreffered' => null,
		'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Dharwad',
		'court_type' => 'HC',
		'decidedon' => '2022-12-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
		'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$args = array(
	(int) 0 => '1232487',
	(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
)
$url = 'https://sooperkanoon.com/case/amp/1232487/smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:',
	(int) 1 => '<p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:',
	(int) 2 => '<p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE ',
	(int) 3 => 'JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ',
	(int) 4 => 'JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF ',
	(int) 5 => 'JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:',
	(int) 6 => '<p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.',
	(int) 7 => '<p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.',
	(int) 8 => '<p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.',
	(int) 9 => '<p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.',
	(int) 10 => '<p>5. From the rival contentions of the parties, Tribunal has famed the issues:',
	(int) 11 => '<p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5',
	(int) 12 => '<p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.',
	(int) 13 => '<p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.',
	(int) 14 => '<p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.',
	(int) 15 => '<p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.',
	(int) 16 => '<p>12. Following point emerges for our determination:',
	(int) 17 => '<p>1. Whether petitioners are entitled for enhancement of compensation?. 8',
	(int) 18 => '<p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.',
	(int) 19 => '<p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.',
	(int) 20 => '<p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10',
	(int) 21 => '<p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.',
	(int) 22 => '<p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.',
	(int) 23 => '<p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:',
	(int) 24 => '<p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:',
	(int) 25 => '<p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:',
	(int) 26 => '<p>19. “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 :',
	(int) 27 => '<p>191. : 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 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 :',
	(int) 28 => '<p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.',
	(int) 29 => '<p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.',
	(int) 30 => '<p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23',
	(int) 31 => '<p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: ',
	(int) 32 => 'ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS',
	(int) 33 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 34
$i = (int) 20
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232487',
			'acts' => null,
			'appealno' => 'MFA 103438/2018',
			'appellant' => 'Smt. Renuka Wd/o Satyappa',
			'authreffered' => null,
			'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Dharwad',
			'court_type' => 'HC',
			'decidedon' => '2022-12-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
			'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar',
	'args' => array(
		(int) 0 => '1232487',
		(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
	)
)
$title_for_layout = 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232487',
		'acts' => null,
		'appealno' => 'MFA 103438/2018',
		'appellant' => 'Smt. Renuka Wd/o Satyappa',
		'authreffered' => null,
		'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Dharwad',
		'court_type' => 'HC',
		'decidedon' => '2022-12-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
		'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$args = array(
	(int) 0 => '1232487',
	(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
)
$url = 'https://sooperkanoon.com/case/amp/1232487/smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:',
	(int) 1 => '<p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:',
	(int) 2 => '<p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE ',
	(int) 3 => 'JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ',
	(int) 4 => 'JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF ',
	(int) 5 => 'JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:',
	(int) 6 => '<p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.',
	(int) 7 => '<p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.',
	(int) 8 => '<p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.',
	(int) 9 => '<p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.',
	(int) 10 => '<p>5. From the rival contentions of the parties, Tribunal has famed the issues:',
	(int) 11 => '<p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5',
	(int) 12 => '<p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.',
	(int) 13 => '<p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.',
	(int) 14 => '<p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.',
	(int) 15 => '<p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.',
	(int) 16 => '<p>12. Following point emerges for our determination:',
	(int) 17 => '<p>1. Whether petitioners are entitled for enhancement of compensation?. 8',
	(int) 18 => '<p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.',
	(int) 19 => '<p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.',
	(int) 20 => '<p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10',
	(int) 21 => '<p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.',
	(int) 22 => '<p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.',
	(int) 23 => '<p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:',
	(int) 24 => '<p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:',
	(int) 25 => '<p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:',
	(int) 26 => '<p>19. “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 :',
	(int) 27 => '<p>191. : 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 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 :',
	(int) 28 => '<p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.',
	(int) 29 => '<p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.',
	(int) 30 => '<p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23',
	(int) 31 => '<p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: ',
	(int) 32 => 'ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS',
	(int) 33 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 34
$i = (int) 21
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232487',
			'acts' => null,
			'appealno' => 'MFA 103438/2018',
			'appellant' => 'Smt. Renuka Wd/o Satyappa',
			'authreffered' => null,
			'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Dharwad',
			'court_type' => 'HC',
			'decidedon' => '2022-12-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
			'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar',
	'args' => array(
		(int) 0 => '1232487',
		(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
	)
)
$title_for_layout = 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232487',
		'acts' => null,
		'appealno' => 'MFA 103438/2018',
		'appellant' => 'Smt. Renuka Wd/o Satyappa',
		'authreffered' => null,
		'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Dharwad',
		'court_type' => 'HC',
		'decidedon' => '2022-12-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
		'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$args = array(
	(int) 0 => '1232487',
	(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
)
$url = 'https://sooperkanoon.com/case/amp/1232487/smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:',
	(int) 1 => '<p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:',
	(int) 2 => '<p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE ',
	(int) 3 => 'JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ',
	(int) 4 => 'JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF ',
	(int) 5 => 'JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:',
	(int) 6 => '<p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.',
	(int) 7 => '<p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.',
	(int) 8 => '<p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.',
	(int) 9 => '<p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.',
	(int) 10 => '<p>5. From the rival contentions of the parties, Tribunal has famed the issues:',
	(int) 11 => '<p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5',
	(int) 12 => '<p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.',
	(int) 13 => '<p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.',
	(int) 14 => '<p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.',
	(int) 15 => '<p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.',
	(int) 16 => '<p>12. Following point emerges for our determination:',
	(int) 17 => '<p>1. Whether petitioners are entitled for enhancement of compensation?. 8',
	(int) 18 => '<p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.',
	(int) 19 => '<p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.',
	(int) 20 => '<p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10',
	(int) 21 => '<p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.',
	(int) 22 => '<p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.',
	(int) 23 => '<p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:',
	(int) 24 => '<p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:',
	(int) 25 => '<p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:',
	(int) 26 => '<p>19. “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 :',
	(int) 27 => '<p>191. : 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 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 :',
	(int) 28 => '<p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.',
	(int) 29 => '<p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.',
	(int) 30 => '<p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23',
	(int) 31 => '<p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: ',
	(int) 32 => 'ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS',
	(int) 33 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 34
$i = (int) 22
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232487',
			'acts' => null,
			'appealno' => 'MFA 103438/2018',
			'appellant' => 'Smt. Renuka Wd/o Satyappa',
			'authreffered' => null,
			'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Dharwad',
			'court_type' => 'HC',
			'decidedon' => '2022-12-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
			'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar',
	'args' => array(
		(int) 0 => '1232487',
		(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
	)
)
$title_for_layout = 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232487',
		'acts' => null,
		'appealno' => 'MFA 103438/2018',
		'appellant' => 'Smt. Renuka Wd/o Satyappa',
		'authreffered' => null,
		'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Dharwad',
		'court_type' => 'HC',
		'decidedon' => '2022-12-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
		'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$args = array(
	(int) 0 => '1232487',
	(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
)
$url = 'https://sooperkanoon.com/case/amp/1232487/smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:',
	(int) 1 => '<p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:',
	(int) 2 => '<p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE ',
	(int) 3 => 'JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ',
	(int) 4 => 'JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF ',
	(int) 5 => 'JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:',
	(int) 6 => '<p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.',
	(int) 7 => '<p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.',
	(int) 8 => '<p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.',
	(int) 9 => '<p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.',
	(int) 10 => '<p>5. From the rival contentions of the parties, Tribunal has famed the issues:',
	(int) 11 => '<p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5',
	(int) 12 => '<p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.',
	(int) 13 => '<p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.',
	(int) 14 => '<p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.',
	(int) 15 => '<p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.',
	(int) 16 => '<p>12. Following point emerges for our determination:',
	(int) 17 => '<p>1. Whether petitioners are entitled for enhancement of compensation?. 8',
	(int) 18 => '<p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.',
	(int) 19 => '<p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.',
	(int) 20 => '<p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10',
	(int) 21 => '<p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.',
	(int) 22 => '<p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.',
	(int) 23 => '<p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:',
	(int) 24 => '<p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:',
	(int) 25 => '<p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:',
	(int) 26 => '<p>19. “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 :',
	(int) 27 => '<p>191. : 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 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 :',
	(int) 28 => '<p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.',
	(int) 29 => '<p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.',
	(int) 30 => '<p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23',
	(int) 31 => '<p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: ',
	(int) 32 => 'ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS',
	(int) 33 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 34
$i = (int) 23
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232487',
			'acts' => null,
			'appealno' => 'MFA 103438/2018',
			'appellant' => 'Smt. Renuka Wd/o Satyappa',
			'authreffered' => null,
			'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Dharwad',
			'court_type' => 'HC',
			'decidedon' => '2022-12-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
			'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar',
	'args' => array(
		(int) 0 => '1232487',
		(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
	)
)
$title_for_layout = 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232487',
		'acts' => null,
		'appealno' => 'MFA 103438/2018',
		'appellant' => 'Smt. Renuka Wd/o Satyappa',
		'authreffered' => null,
		'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Dharwad',
		'court_type' => 'HC',
		'decidedon' => '2022-12-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
		'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$args = array(
	(int) 0 => '1232487',
	(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
)
$url = 'https://sooperkanoon.com/case/amp/1232487/smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:',
	(int) 1 => '<p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:',
	(int) 2 => '<p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE ',
	(int) 3 => 'JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ',
	(int) 4 => 'JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF ',
	(int) 5 => 'JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:',
	(int) 6 => '<p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.',
	(int) 7 => '<p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.',
	(int) 8 => '<p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.',
	(int) 9 => '<p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.',
	(int) 10 => '<p>5. From the rival contentions of the parties, Tribunal has famed the issues:',
	(int) 11 => '<p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5',
	(int) 12 => '<p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.',
	(int) 13 => '<p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.',
	(int) 14 => '<p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.',
	(int) 15 => '<p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.',
	(int) 16 => '<p>12. Following point emerges for our determination:',
	(int) 17 => '<p>1. Whether petitioners are entitled for enhancement of compensation?. 8',
	(int) 18 => '<p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.',
	(int) 19 => '<p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.',
	(int) 20 => '<p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10',
	(int) 21 => '<p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.',
	(int) 22 => '<p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.',
	(int) 23 => '<p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:',
	(int) 24 => '<p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:',
	(int) 25 => '<p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:',
	(int) 26 => '<p>19. “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 :',
	(int) 27 => '<p>191. : 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 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 :',
	(int) 28 => '<p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.',
	(int) 29 => '<p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.',
	(int) 30 => '<p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23',
	(int) 31 => '<p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: ',
	(int) 32 => 'ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS',
	(int) 33 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 34
$i = (int) 24
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232487',
			'acts' => null,
			'appealno' => 'MFA 103438/2018',
			'appellant' => 'Smt. Renuka Wd/o Satyappa',
			'authreffered' => null,
			'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Dharwad',
			'court_type' => 'HC',
			'decidedon' => '2022-12-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
			'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar',
	'args' => array(
		(int) 0 => '1232487',
		(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
	)
)
$title_for_layout = 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232487',
		'acts' => null,
		'appealno' => 'MFA 103438/2018',
		'appellant' => 'Smt. Renuka Wd/o Satyappa',
		'authreffered' => null,
		'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Dharwad',
		'court_type' => 'HC',
		'decidedon' => '2022-12-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
		'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$args = array(
	(int) 0 => '1232487',
	(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
)
$url = 'https://sooperkanoon.com/case/amp/1232487/smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:',
	(int) 1 => '<p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:',
	(int) 2 => '<p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE ',
	(int) 3 => 'JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ',
	(int) 4 => 'JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF ',
	(int) 5 => 'JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:',
	(int) 6 => '<p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.',
	(int) 7 => '<p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.',
	(int) 8 => '<p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.',
	(int) 9 => '<p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.',
	(int) 10 => '<p>5. From the rival contentions of the parties, Tribunal has famed the issues:',
	(int) 11 => '<p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5',
	(int) 12 => '<p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.',
	(int) 13 => '<p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.',
	(int) 14 => '<p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.',
	(int) 15 => '<p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.',
	(int) 16 => '<p>12. Following point emerges for our determination:',
	(int) 17 => '<p>1. Whether petitioners are entitled for enhancement of compensation?. 8',
	(int) 18 => '<p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.',
	(int) 19 => '<p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.',
	(int) 20 => '<p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10',
	(int) 21 => '<p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.',
	(int) 22 => '<p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.',
	(int) 23 => '<p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:',
	(int) 24 => '<p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:',
	(int) 25 => '<p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:',
	(int) 26 => '<p>19. “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 :',
	(int) 27 => '<p>191. : 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 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 :',
	(int) 28 => '<p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.',
	(int) 29 => '<p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.',
	(int) 30 => '<p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23',
	(int) 31 => '<p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: ',
	(int) 32 => 'ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS',
	(int) 33 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 34
$i = (int) 25
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232487',
			'acts' => null,
			'appealno' => 'MFA 103438/2018',
			'appellant' => 'Smt. Renuka Wd/o Satyappa',
			'authreffered' => null,
			'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Dharwad',
			'court_type' => 'HC',
			'decidedon' => '2022-12-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
			'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar',
	'args' => array(
		(int) 0 => '1232487',
		(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
	)
)
$title_for_layout = 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232487',
		'acts' => null,
		'appealno' => 'MFA 103438/2018',
		'appellant' => 'Smt. Renuka Wd/o Satyappa',
		'authreffered' => null,
		'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Dharwad',
		'court_type' => 'HC',
		'decidedon' => '2022-12-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
		'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$args = array(
	(int) 0 => '1232487',
	(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
)
$url = 'https://sooperkanoon.com/case/amp/1232487/smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:',
	(int) 1 => '<p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:',
	(int) 2 => '<p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE ',
	(int) 3 => 'JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ',
	(int) 4 => 'JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF ',
	(int) 5 => 'JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:',
	(int) 6 => '<p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.',
	(int) 7 => '<p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.',
	(int) 8 => '<p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.',
	(int) 9 => '<p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.',
	(int) 10 => '<p>5. From the rival contentions of the parties, Tribunal has famed the issues:',
	(int) 11 => '<p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5',
	(int) 12 => '<p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.',
	(int) 13 => '<p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.',
	(int) 14 => '<p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.',
	(int) 15 => '<p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.',
	(int) 16 => '<p>12. Following point emerges for our determination:',
	(int) 17 => '<p>1. Whether petitioners are entitled for enhancement of compensation?. 8',
	(int) 18 => '<p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.',
	(int) 19 => '<p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.',
	(int) 20 => '<p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10',
	(int) 21 => '<p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.',
	(int) 22 => '<p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.',
	(int) 23 => '<p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:',
	(int) 24 => '<p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:',
	(int) 25 => '<p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:',
	(int) 26 => '<p>19. “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 :',
	(int) 27 => '<p>191. : 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 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 :',
	(int) 28 => '<p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.',
	(int) 29 => '<p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.',
	(int) 30 => '<p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23',
	(int) 31 => '<p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: ',
	(int) 32 => 'ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS',
	(int) 33 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 34
$i = (int) 26
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

19. “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 :

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232487',
			'acts' => null,
			'appealno' => 'MFA 103438/2018',
			'appellant' => 'Smt. Renuka Wd/o Satyappa',
			'authreffered' => null,
			'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Dharwad',
			'court_type' => 'HC',
			'decidedon' => '2022-12-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
			'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar',
	'args' => array(
		(int) 0 => '1232487',
		(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
	)
)
$title_for_layout = 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232487',
		'acts' => null,
		'appealno' => 'MFA 103438/2018',
		'appellant' => 'Smt. Renuka Wd/o Satyappa',
		'authreffered' => null,
		'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Dharwad',
		'court_type' => 'HC',
		'decidedon' => '2022-12-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
		'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$args = array(
	(int) 0 => '1232487',
	(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
)
$url = 'https://sooperkanoon.com/case/amp/1232487/smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:',
	(int) 1 => '<p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:',
	(int) 2 => '<p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE ',
	(int) 3 => 'JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ',
	(int) 4 => 'JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF ',
	(int) 5 => 'JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:',
	(int) 6 => '<p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.',
	(int) 7 => '<p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.',
	(int) 8 => '<p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.',
	(int) 9 => '<p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.',
	(int) 10 => '<p>5. From the rival contentions of the parties, Tribunal has famed the issues:',
	(int) 11 => '<p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5',
	(int) 12 => '<p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.',
	(int) 13 => '<p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.',
	(int) 14 => '<p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.',
	(int) 15 => '<p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.',
	(int) 16 => '<p>12. Following point emerges for our determination:',
	(int) 17 => '<p>1. Whether petitioners are entitled for enhancement of compensation?. 8',
	(int) 18 => '<p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.',
	(int) 19 => '<p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.',
	(int) 20 => '<p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10',
	(int) 21 => '<p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.',
	(int) 22 => '<p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.',
	(int) 23 => '<p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:',
	(int) 24 => '<p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:',
	(int) 25 => '<p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:',
	(int) 26 => '<p>19. “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 :',
	(int) 27 => '<p>191. : 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 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 :',
	(int) 28 => '<p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.',
	(int) 29 => '<p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.',
	(int) 30 => '<p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23',
	(int) 31 => '<p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: ',
	(int) 32 => 'ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS',
	(int) 33 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 34
$i = (int) 27
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

191. : 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 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 :

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232487',
			'acts' => null,
			'appealno' => 'MFA 103438/2018',
			'appellant' => 'Smt. Renuka Wd/o Satyappa',
			'authreffered' => null,
			'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Dharwad',
			'court_type' => 'HC',
			'decidedon' => '2022-12-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
			'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar',
	'args' => array(
		(int) 0 => '1232487',
		(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
	)
)
$title_for_layout = 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232487',
		'acts' => null,
		'appealno' => 'MFA 103438/2018',
		'appellant' => 'Smt. Renuka Wd/o Satyappa',
		'authreffered' => null,
		'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Dharwad',
		'court_type' => 'HC',
		'decidedon' => '2022-12-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
		'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$args = array(
	(int) 0 => '1232487',
	(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
)
$url = 'https://sooperkanoon.com/case/amp/1232487/smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:',
	(int) 1 => '<p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:',
	(int) 2 => '<p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE ',
	(int) 3 => 'JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ',
	(int) 4 => 'JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF ',
	(int) 5 => 'JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:',
	(int) 6 => '<p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.',
	(int) 7 => '<p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.',
	(int) 8 => '<p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.',
	(int) 9 => '<p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.',
	(int) 10 => '<p>5. From the rival contentions of the parties, Tribunal has famed the issues:',
	(int) 11 => '<p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5',
	(int) 12 => '<p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.',
	(int) 13 => '<p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.',
	(int) 14 => '<p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.',
	(int) 15 => '<p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.',
	(int) 16 => '<p>12. Following point emerges for our determination:',
	(int) 17 => '<p>1. Whether petitioners are entitled for enhancement of compensation?. 8',
	(int) 18 => '<p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.',
	(int) 19 => '<p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.',
	(int) 20 => '<p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10',
	(int) 21 => '<p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.',
	(int) 22 => '<p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.',
	(int) 23 => '<p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:',
	(int) 24 => '<p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:',
	(int) 25 => '<p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:',
	(int) 26 => '<p>19. “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 :',
	(int) 27 => '<p>191. : 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 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 :',
	(int) 28 => '<p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.',
	(int) 29 => '<p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.',
	(int) 30 => '<p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23',
	(int) 31 => '<p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: ',
	(int) 32 => 'ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS',
	(int) 33 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 34
$i = (int) 28
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232487',
			'acts' => null,
			'appealno' => 'MFA 103438/2018',
			'appellant' => 'Smt. Renuka Wd/o Satyappa',
			'authreffered' => null,
			'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Dharwad',
			'court_type' => 'HC',
			'decidedon' => '2022-12-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
			'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar',
	'args' => array(
		(int) 0 => '1232487',
		(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
	)
)
$title_for_layout = 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232487',
		'acts' => null,
		'appealno' => 'MFA 103438/2018',
		'appellant' => 'Smt. Renuka Wd/o Satyappa',
		'authreffered' => null,
		'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Dharwad',
		'court_type' => 'HC',
		'decidedon' => '2022-12-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
		'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$args = array(
	(int) 0 => '1232487',
	(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
)
$url = 'https://sooperkanoon.com/case/amp/1232487/smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:',
	(int) 1 => '<p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:',
	(int) 2 => '<p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE ',
	(int) 3 => 'JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ',
	(int) 4 => 'JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF ',
	(int) 5 => 'JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:',
	(int) 6 => '<p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.',
	(int) 7 => '<p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.',
	(int) 8 => '<p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.',
	(int) 9 => '<p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.',
	(int) 10 => '<p>5. From the rival contentions of the parties, Tribunal has famed the issues:',
	(int) 11 => '<p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5',
	(int) 12 => '<p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.',
	(int) 13 => '<p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.',
	(int) 14 => '<p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.',
	(int) 15 => '<p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.',
	(int) 16 => '<p>12. Following point emerges for our determination:',
	(int) 17 => '<p>1. Whether petitioners are entitled for enhancement of compensation?. 8',
	(int) 18 => '<p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.',
	(int) 19 => '<p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.',
	(int) 20 => '<p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10',
	(int) 21 => '<p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.',
	(int) 22 => '<p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.',
	(int) 23 => '<p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:',
	(int) 24 => '<p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:',
	(int) 25 => '<p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:',
	(int) 26 => '<p>19. “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 :',
	(int) 27 => '<p>191. : 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 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 :',
	(int) 28 => '<p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.',
	(int) 29 => '<p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.',
	(int) 30 => '<p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23',
	(int) 31 => '<p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: ',
	(int) 32 => 'ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS',
	(int) 33 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 34
$i = (int) 29
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232487',
			'acts' => null,
			'appealno' => 'MFA 103438/2018',
			'appellant' => 'Smt. Renuka Wd/o Satyappa',
			'authreffered' => null,
			'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Dharwad',
			'court_type' => 'HC',
			'decidedon' => '2022-12-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
			'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar',
	'args' => array(
		(int) 0 => '1232487',
		(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
	)
)
$title_for_layout = 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232487',
		'acts' => null,
		'appealno' => 'MFA 103438/2018',
		'appellant' => 'Smt. Renuka Wd/o Satyappa',
		'authreffered' => null,
		'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Dharwad',
		'court_type' => 'HC',
		'decidedon' => '2022-12-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
		'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$args = array(
	(int) 0 => '1232487',
	(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
)
$url = 'https://sooperkanoon.com/case/amp/1232487/smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:',
	(int) 1 => '<p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:',
	(int) 2 => '<p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE ',
	(int) 3 => 'JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ',
	(int) 4 => 'JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF ',
	(int) 5 => 'JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:',
	(int) 6 => '<p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.',
	(int) 7 => '<p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.',
	(int) 8 => '<p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.',
	(int) 9 => '<p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.',
	(int) 10 => '<p>5. From the rival contentions of the parties, Tribunal has famed the issues:',
	(int) 11 => '<p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5',
	(int) 12 => '<p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.',
	(int) 13 => '<p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.',
	(int) 14 => '<p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.',
	(int) 15 => '<p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.',
	(int) 16 => '<p>12. Following point emerges for our determination:',
	(int) 17 => '<p>1. Whether petitioners are entitled for enhancement of compensation?. 8',
	(int) 18 => '<p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.',
	(int) 19 => '<p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.',
	(int) 20 => '<p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10',
	(int) 21 => '<p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.',
	(int) 22 => '<p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.',
	(int) 23 => '<p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:',
	(int) 24 => '<p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:',
	(int) 25 => '<p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:',
	(int) 26 => '<p>19. “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 :',
	(int) 27 => '<p>191. : 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 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 :',
	(int) 28 => '<p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.',
	(int) 29 => '<p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.',
	(int) 30 => '<p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23',
	(int) 31 => '<p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: ',
	(int) 32 => 'ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS',
	(int) 33 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 34
$i = (int) 30
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232487',
			'acts' => null,
			'appealno' => 'MFA 103438/2018',
			'appellant' => 'Smt. Renuka Wd/o Satyappa',
			'authreffered' => null,
			'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Dharwad',
			'court_type' => 'HC',
			'decidedon' => '2022-12-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
			'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar',
	'args' => array(
		(int) 0 => '1232487',
		(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
	)
)
$title_for_layout = 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232487',
		'acts' => null,
		'appealno' => 'MFA 103438/2018',
		'appellant' => 'Smt. Renuka Wd/o Satyappa',
		'authreffered' => null,
		'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Dharwad',
		'court_type' => 'HC',
		'decidedon' => '2022-12-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
		'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$args = array(
	(int) 0 => '1232487',
	(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
)
$url = 'https://sooperkanoon.com/case/amp/1232487/smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:',
	(int) 1 => '<p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:',
	(int) 2 => '<p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE ',
	(int) 3 => 'JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ',
	(int) 4 => 'JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF ',
	(int) 5 => 'JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:',
	(int) 6 => '<p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.',
	(int) 7 => '<p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.',
	(int) 8 => '<p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.',
	(int) 9 => '<p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.',
	(int) 10 => '<p>5. From the rival contentions of the parties, Tribunal has famed the issues:',
	(int) 11 => '<p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5',
	(int) 12 => '<p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.',
	(int) 13 => '<p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.',
	(int) 14 => '<p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.',
	(int) 15 => '<p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.',
	(int) 16 => '<p>12. Following point emerges for our determination:',
	(int) 17 => '<p>1. Whether petitioners are entitled for enhancement of compensation?. 8',
	(int) 18 => '<p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.',
	(int) 19 => '<p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.',
	(int) 20 => '<p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10',
	(int) 21 => '<p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.',
	(int) 22 => '<p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.',
	(int) 23 => '<p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:',
	(int) 24 => '<p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:',
	(int) 25 => '<p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:',
	(int) 26 => '<p>19. “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 :',
	(int) 27 => '<p>191. : 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 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 :',
	(int) 28 => '<p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.',
	(int) 29 => '<p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.',
	(int) 30 => '<p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23',
	(int) 31 => '<p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: ',
	(int) 32 => 'ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS',
	(int) 33 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 34
$i = (int) 31
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following:

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232487',
			'acts' => null,
			'appealno' => 'MFA 103438/2018',
			'appellant' => 'Smt. Renuka Wd/o Satyappa',
			'authreffered' => null,
			'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Dharwad',
			'court_type' => 'HC',
			'decidedon' => '2022-12-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
			'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar',
	'args' => array(
		(int) 0 => '1232487',
		(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
	)
)
$title_for_layout = 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232487',
		'acts' => null,
		'appealno' => 'MFA 103438/2018',
		'appellant' => 'Smt. Renuka Wd/o Satyappa',
		'authreffered' => null,
		'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Dharwad',
		'court_type' => 'HC',
		'decidedon' => '2022-12-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
		'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$args = array(
	(int) 0 => '1232487',
	(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
)
$url = 'https://sooperkanoon.com/case/amp/1232487/smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:',
	(int) 1 => '<p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:',
	(int) 2 => '<p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE ',
	(int) 3 => 'JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ',
	(int) 4 => 'JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF ',
	(int) 5 => 'JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:',
	(int) 6 => '<p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.',
	(int) 7 => '<p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.',
	(int) 8 => '<p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.',
	(int) 9 => '<p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.',
	(int) 10 => '<p>5. From the rival contentions of the parties, Tribunal has famed the issues:',
	(int) 11 => '<p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5',
	(int) 12 => '<p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.',
	(int) 13 => '<p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.',
	(int) 14 => '<p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.',
	(int) 15 => '<p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.',
	(int) 16 => '<p>12. Following point emerges for our determination:',
	(int) 17 => '<p>1. Whether petitioners are entitled for enhancement of compensation?. 8',
	(int) 18 => '<p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.',
	(int) 19 => '<p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.',
	(int) 20 => '<p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10',
	(int) 21 => '<p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.',
	(int) 22 => '<p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.',
	(int) 23 => '<p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:',
	(int) 24 => '<p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:',
	(int) 25 => '<p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:',
	(int) 26 => '<p>19. “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 :',
	(int) 27 => '<p>191. : 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 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 :',
	(int) 28 => '<p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.',
	(int) 29 => '<p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.',
	(int) 30 => '<p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23',
	(int) 31 => '<p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: ',
	(int) 32 => 'ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS',
	(int) 33 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 34
$i = (int) 32
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

ORDER

i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '1232487',
			'acts' => null,
			'appealno' => 'MFA 103438/2018',
			'appellant' => 'Smt. Renuka Wd/o Satyappa',
			'authreffered' => null,
			'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
			'casenote' => null,
			'caseanalysis' => null,
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => '',
			'counseldef' => null,
			'court' => 'Karnataka Dharwad',
			'court_type' => 'HC',
			'decidedon' => '2022-12-07',
			'deposition' => null,
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
			'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => null,
			'ratiodecidendi' => null,
			'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
			'sub' => null,
			'link' => '',
			'circuit' => null
		)
	),
	'casename_url' => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar',
	'args' => array(
		(int) 0 => '1232487',
		(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
	)
)
$title_for_layout = 'Smt Renuka Wd O Satyappa Vs Shri Lakkappa W O Hanamant Mudennavar - Citation 1232487 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '1232487',
		'acts' => null,
		'appealno' => 'MFA 103438/2018',
		'appellant' => 'Smt. Renuka Wd/o Satyappa',
		'authreffered' => null,
		'casename' => 'Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => '',
		'counseldef' => null,
		'court' => 'Karnataka Dharwad',
		'court_type' => 'HC',
		'decidedon' => '2022-12-07',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.SUNIL DUTT YADAV AND UMESH M ADIGA',
		'judgement' => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:</p><p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:</p><p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE </p>JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR </p>JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF </p>JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:</p><p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.</p><p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.</p><p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.</p><p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.</p><p>5. From the rival contentions of the parties, Tribunal has famed the issues:</p><p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5</p><p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.</p><p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.</p><p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.</p><p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.</p><p>12. Following point emerges for our determination:</p><p>1. Whether petitioners are entitled for enhancement of compensation?. 8</p><p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.</p><p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.</p><p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10</p><p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.</p><p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.</p><p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:</p><p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:</p><p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:</p><p>19. “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 :</p><p>191. : 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 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 :</p><p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.</p><p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.</p><p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23</p><p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: </p>ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Shri. Lakkappa W/o Hanamant Mudennavar',
		'sub' => null,
		'link' => '',
		'circuit' => null
	)
)
$casename_url = 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$args = array(
	(int) 0 => '1232487',
	(int) 1 => 'smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
)
$url = 'https://sooperkanoon.com/case/amp/1232487/smt-renuka-wd-o-satyappa-vs-lakkappa-mudennavar'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07H DAY OF DECEMBER2022PRESENT THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON’BLE MR. JUSTICE UMESH M ADIGA MFA NO.103438/2018 (MV) BETWEEN:',
	(int) 1 => '<p>1. . SMT. RENUKA WD/O SATYAPPA SATYANAIKAR AGE:25 YEARS, OCC:HOUSEHOLD WORK, R/O:NAIK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 2 . SAGAR S/O SATYAPPA SATNAIKAR AGE:04 YEARS, OCC:STUDENT, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI59130 (SINCE MINOR REPRESENTED BY HIS MOTHER I.E., APPELLANT NO.) ...APPELLANTS (BY SRI.VITTHAL S.TELI, ADVOCATE) 2 AND1. LAKKAPPA W/O HANAMANT MUDENNAVAR AGE:40 YEARS, OCC:AGRICULTURE, R/O:HANABRATTI, TQ:BAILHONGAL DIST:BELAGAVI59110 2 . THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., CLUB ROAD, BELAGAVI59000 3. SURESH S/O KAREPPA SAVADATTI, AGE:',
	(int) 2 => '<p>28. YEARS, OCC: MASON, R/O:NIAK GALLI, KHANAPUR, TQ:KHANAPUR, DIST:BELAGAVI ...RESPONDENTS (BY SRI.G.N.RAICHUR, ADV. FOR R2, R1 SERVED) THIS APPEAL IS FILED UNDER SECTION1731) OF M.V.ACT, PRAYING THAT THE ',
	(int) 3 => 'JUDGMENT<p> AND AWARD DATED0512.2016 IN MVC NO.82/2016 PASSED BY THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN AWARDING THE COMPENSATION OF RS.20,53,000/- WITH9 P.A. FROM THE DATE OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO Rs.40,00,000/- WITH12 INTERST AND SET ASIDE THE LIABILITY SADDLED ON THE RESPONDENT NO.1 AND RESPONDENT NO.2 MAY KINDLY BE HELD TO PAY THE COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ',
	(int) 4 => 'JUDGMENT<p> ON3110.2022 COMING ON FOR PRONOUNCEMENT OF ',
	(int) 5 => 'JUDGMENT<p> THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:',
	(int) 6 => '<p>3. JUDGEMENT Petitioners in MVC No.82/2016 on the file of the XI Additional District and Sessions Judge and Additional MACT, Belagavi have challenged the impugned judgment passed by the said court dated 05.12.2016 claiming enhancement of compensation so also to fix liability to pay compensation on respondent No.2.',
	(int) 7 => '<p>2. It was the case of the appellants that on 22.10.2015 at about 1.00 p.m., deceased Satyappa along with petitioners were going in a motorcycle bearing No.KA- 22/EN-5774 from Khanapur towards Nesargi. The rider of the motorcycle bearing KA-24/S-2598, rode his vehicle in rash and negligent manner and dashed against the motorcycle of the deceased, within the jurisdiction of Hanabarahatti village. Due to impact, Satyappa had sustained grievous injuries and succumbed to the injuries.',
	(int) 8 => '<p>3. It is further contention of the petitioners that the deceased was aged about 30 years at the time of the 4 accident, he was mason and earning Rs.600/- per day as wages. Petitioners are wife and son of the deceased, were depending upon the earnings of the deceased. With these reasons petitioners have claimed compensation of Rs.40,00,000/- from respondent Nos.1 and 2.',
	(int) 9 => '<p>4. Respondent No.2 denied all petition averments and it has also contended that rider of the motorcycle was not holding valid and effective driving licence to ride the motorcycle and owner of the vehicle has violated the terms and conditions of the policy and hence, prayed to reject the petition.',
	(int) 10 => '<p>5. From the rival contentions of the parties, Tribunal has famed the issues:',
	(int) 11 => '<p>6. To prove the respective contentions, petitioners examined P.W.1 and got marked Exs.P1 to P8. Respondent No.2 has examined R.W.1 and got marked Exs.R1 to R3. 5',
	(int) 12 => '<p>7. The Tribunal heard the arguments and by the impugned judgment dated 05.12.2016 awarded compensation of Rs.20,53,000/- with the interest at the rate of 9% p.a. from the date of petition till realization of the entire amount and directed respondent No.1 to pay the said amount and respondent No.2 was exonerated.',
	(int) 13 => '<p>8. At the time of hearing on admission, with the consent of learned counsels for both the sides, the matter was taken up for final hearing.',
	(int) 14 => '<p>9. Learned counsel for the appellants has contended that deceased was a mason and earning Rs.600/- per day i.e., Rs.18,000/- p.m. The Tribunal has not considered the same and taken the income of the deceased at Rs.9,000/- p.m., which is erroneous. It is further contended that petitioners have claimed compensation of Rs.40,00,000/-, however, the Tribunal has awarded compensation of Rs.20,53,000/-. The Tribunal has not awarded just compensation. Therefore, prayed to enhance the amount of compensation. He has 6 further contended that rider of the offending motorcycle had no valid and effective driving licence and in catena of judgments, it is held by the Hon’ble High Courts and Supreme Court that in such cases, the Tribunal has to direct the insurance company to pay the compensation and recover it from the owner of vehicle. The third parties cannot be asked to go behind the owner of vehicle to recover the amount. In support of his contention, he has relied upon few judgments.',
	(int) 15 => '<p>10. Learned counsel for respondent No.2 has contended that amount of compensation claimed by the petitioners is exorbitant, the Tribunal rightly fixed liability on respondent No.1 to pay compensation. There is no need to interfere in the said findings. He has further contended that the amount of compensation awarded by the Tribunal under different heads are also excessive. The Tribunal has considered the income of the deceased at the rate of Rs.9,000/- p.m., which is also on higher side. He has further contends that accident had taken place during the 7 year 2015. Normally while settling the disputes in the Lok Adalaths, notional income of victim of an accident that has taken place during 2015, is taken as Rs.8,000/- p.m. He further submitted that when the rider of the motorcycle had no valid and effective driving licence to ride the motorcycle, respondent-insurance company cannot be directed to pay the compensation and recover from owner. In support of his contention, he was relied upon the judgment of the Hon’ble Supreme Court in the case of Beli Ram Vs Rajinder Kumar and Another reported in AIR2020SC4453 11. We have carefully gone through the records as well as considered submission of the learned counsel for both side.',
	(int) 16 => '<p>12. Following point emerges for our determination:',
	(int) 17 => '<p>1. Whether petitioners are entitled for enhancement of compensation?. 8',
	(int) 18 => '<p>2) Whether liability to pay compensation has to be fixed on respondent No.2 with liberty to recover the same from owner?.',
	(int) 19 => '<p>13. The Tribunal on the basis of approximation assessed the income of the deceased at the rate of Rs.9,000/- p.m. which is on the higher side. The accident had taken place during the year 2015. While settling the matters before the Lok Adalaths, notional income of the victim would be taken as Rs.8,000/- p.m., if the accident had taken place during the year 2015. Therefore, on that basis, earning of the deceased is taken as Rs.8,000/- p.m. As per the finding of the Tribunal, deceased was aged about 35 years, that is not in dispute. Therefore, his future prospects has to be considered. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC680 the Hon’ble Supreme Court held that 40% of income of deceased has to be taken towards future prospects if his age was below 40 years. Hence, 40% of Rs.8,000/- is Rs.3,200/-. Therefore, the total income of 9 the deceased was Rs.11,200/- p.m. Deceased was married and having a son. Therefore, 1/3rd of his income shall be deducted towards personal expenses, which amounts to Rs.3,733/-. By deducting the same, the net earnings of the deceased on which the family were dependant is Rs.7,466/- p.m. The suitable multiplier applicable in this case is ’16’, which is not in dispute. Therefore, the total amount of compensation to be awarded under the head loss of dependency is Rs.7,467/- x 12 x 16 = 14,33,664/-.',
	(int) 20 => '<p>14. Deceased left behind his widow and son. Therefore, Rs.40,000/- each is to be awarded towards loss of spousal consortium and loss of parental consortium as held in the case of Pranay Sethi (supra). Similarly, petitioners are entitled for compensation of Rs.15,000/- each under the heads loss of estate and funeral expenses. Therefore, the just compensation for which the petitioners are entitled is Rs.15,43,600/- which is rounded off to Rs.15,44,000/- as against Rs.20,53,000/- awarded by the Tribunal. 10',
	(int) 21 => '<p>15. The learned counsel for respondent No.2 contends that rate of interest awarded by the Tribunal is 9% p.a. which is on the higher side. Presently the rate of interest given by the bank on the fixed deposit kept for a year is less than 6%. Therefore, the interest may be awarded to an extent of 6% p.a. The said submission is also acceptable. Hence, 6% interest is awarded to the petitioners on the said compensation amount from the date of petition till payment of the entire amount.',
	(int) 22 => '<p>16. It is the contention of learned counsel for respondent No.2 that rider of the offending motorcycle had no valid and effective driving licence, therefore, it is contended that the owner of the vehicle has violated the terms and conditions of the policy of insurance and hence, the owner himself is liable to pay compensation as rightly held by the Tribunal. The learned counsel for the appellants has vehemently contended that it is not in dispute that the rider of the offending motorcycle had no valid and effective driving licence at the time of accident. 11 However, the said motorcycle was insured with respondent No.2 and policy of insurance was in force. Violation of terms of policy by the owner of the motorcycle, is not a violation of fundamental condition of the policy of insurance. When claim petition is filed by third party, it is duty of insurance company to pay the said amount and in turn recover the amount of compensation from the owner of the vehicle.',
	(int) 23 => '<p>17. Learned counsel for the appellants has further contended that petitioners have lost earning member of the family. Petitioner No.1 is a widow and petitioner No.2 is minor son. They may not be able to recover the compensation from the owner of the vehicle. Therefore, as consistently held by the Hon’ble High Court and Supreme Court, the Tribunal ought to have directed respondent No.2 to pay the amount and recover from respondent No.1. In support of his contention, he relied upon following judgments:',
	(int) 24 => '<p>12. i) AIR2019SC3128(Parminder Singh Vs New India Assurance Company Ltd.) wherein Hon’ble Supreme Court relying on its earlier judgment, in the case of Shamanna and Others Vs Divisional Manager, Oriental Insurance Company Ltd. and Others, held that, “On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent – Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.” 13 ii) 2021 (4) AKR668(B.S.Subbegowda and Others vs. P.P.Pramod and Others), wherein the Coordinate Bench of this Court held as under: Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No.11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No.3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the 14 same from the insured. Hence, I answered point No.(i), accordingly.” iii) AIR2018SC592(Pappu and Others Vs Vinod and Lamba and Another), wherein the Hon’ble Supreme Court held as under: “The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?. This issue has been answered in the case of National Insurance Company Ltd. (supra). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- 15 clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” Further, in paragraph No.110, the Court observed thus:',
	(int) 25 => '<p>110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by 16 the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) xxx 17 (ix) xxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No.DIL- 5955 was 18 comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.” iv) AIR2004SC1742(Punam Devi and Another Vs Divisional Manager, New India Assurance Company Ltd. and others). In the above said case also, the insurance company has taken contention that driver of the offending vehicle had no valid and effective driving licence. However, it has not led proper evidence to prove the same. Considering the same, the Hon’ble Supreme Court held that the insurance company is liable to pay the said amount of compensation. However, in this case, it is not held that insurance company can recover the said amount from the owner of the vehicle. v) 2020 (2) AKR484(Full Bench) (New India Assurance Co. Ltd. Bijapur Vs. Yallavva w/o Yamanappa Dharanakeri and Another) wherein relying on several judgments of this Court held that:',
	(int) 26 => '<p>19. “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 :',
	(int) 27 => '<p>191. : 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 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 :',
	(int) 28 => '<p>192. : played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss 20 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 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.” In the above said case, it is held by Full Bench of this court that in case where the driver of rider or the vehicle had no valid and effective driving licence, the insurance company shall pay the compensation to the claimant and recover the same from owner of the vehicle.',
	(int) 29 => '<p>18. In all the above said judgments, it is held by this court and Hon’ble Supreme Court that when driver or rider of the vehicle had no valid and effective driving 21 licence at the time of the accident, insurance company may not be liable to pay compensation; however, in the ends of justice, insurance company shall pay the compensation amount to the claimant and it can recover the same from the owner of the vehicle. The law laid down in the above said judgments are applicable to the present case.',
	(int) 30 => '<p>19. Learned counsel for respondent No.2 relied on the judgment Beli Ram (supra) and also judgment of a Coordinate Bench of this court in MFA No.100226/2016 c/w MFA No.100730/2016 dated 22.04.2021 in the case of Smt.Padma and Others Vs.Ramanjali Naidu and Others. The law laid down in the case of Beli Ram (supra) is not applicable to the facts of the present case. In that case, the claimant has sought for the compensation under Workmen Compensation Act. The driving licence of the driver of the lorry had expired three years prior to the date of the accident and the owner of the vehicle never enquired with the said driver, about the driving licence or 22 its renewal. Considering the said fact, it is held by the Hon’ble Supreme Court that owner is liable to pay the compensation. In the above said case, beneficiary was driver himself, who was negligent and the said case was not coming under the purview of the motor vehicle compensation case. In the law laid down in the above said judgment is not applicable to the facts of the present case. The judgment of the Coordinate Bench of this court, referred to above, relying on the judgment in the case of Beli Ram(supra), held that owner of the vehicle responsible to pay the compensation and insurance company was absolved of its liability to pay the compensation. The law laid down in the above said two judgments are not applicable to the facts of the present case, since the claimants in the present case are third party and the claim made in this case is under the Motor Vehicles Act. For the above said discussions, it is necessary in this case to direct respondent No.2 to pay the compensation on behalf of the owner and recover the same from the owner of the vehicle. 23',
	(int) 31 => '<p>20. In this case, respondents have not challenged the award passed by the trial court. However, the court has to see that claimants should get just and reasonable amount of compensation. The Tribunal wrongly considered the income of the deceased so also wrongly awarded compensation under the head loss consortium and funeral expenses etc. which can be modified by this court to award just compensation, though there is no appeal filed by insurer against the impugned judgment. For the above said discussions, we answer both the points accordingly and pass the following: ',
	(int) 32 => 'ORDER<p> i) Appeal is partly allowed. No costs. ii) Impugned judgment is modified. Petitioners are entitled for compensation of Rs.15,44,000/- with interest at the rate of 6% p.a. from the date of petition till payment of entire amount as against Rs.20,53,000/- awarded by the Tribunal. 24 iii) Respondent No.2 is directed to pay the compensation amount and it is at liberty to recover it from respondent No.1. Sd/- JUDGE Sd/- JUDGE MBS',
	(int) 33 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 34
$i = (int) 33
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

Court	Karnataka Dharwad High Court
Decided On	Dec-07-2022
Case Number	MFA 103438/2018
Judge	S.SUNIL DUTT YADAV AND UMESH M ADIGA
Appellant	Smt. Renuka Wd/o Satyappa
Respondent	Shri. Lakkappa W/o Hanamant Mudennavar

Smt. Renuka Wd/o Satyappa Vs. Shri. Lakkappa W/o Hanamant Mudennavar - Court Judgment