Point of Law : Insurance Company is bound to pay claimants and to recover the same from owner - Hence point (ii) is answered accordingly that Insurance Company has to indemnify the claimant and recover the same from the insured. [Para 20]

JUDGMENT :

This appeal is filed challenging the judgment and award dated 20.04.2013, passed in M.V.C.No.717/2011, on the file of the I Additional Senior Civil Judge, MACT-V, Davanagere (‘the Tribunal’ for short) praying to modify the judgment and award.

2. The factual matrix of the case of the claimant before the Tribunal is that in an accident he had sustained the injuries on account of rash and negligent driving of the motor vehicle insured with respondent No.1 and the Tribunal awarded compensation of amount of Rs.2,88,000/- with interest at the rate of 7% per annum. Being aggrieved by the same, the claimant is in appeal before this Court.

3. The learned counsel for the appellant would vehemently contend that the Tribunal has committed an error in taking the income of the appellant as Rs.4,000/-per month instead of Rs.6,501/-per month, as the appellant was drawing monthly salary of Rs.6,501/-by working in BSS Micro Finance Pvt. Ltd., Kondajji Road, Davanagere. The Tribunal committed an error in awarding lesser compensation under the head future loss of income. The Tribunal committed an error in not awarding any amount under the head future medical expenses and incidental expenses. The learned counsel would contend that the Tribunal committed an error in directing respondent Nos.1 and 2 to pay the compensation and the liability of the Insurance Company is exonerated in coming to the conclusion that the offending vehicle was not registered and as such, temporary registration which was issued to the said vehicle was also expired on the date of the accident.

4. The learned counsel would contend that the Full Bench of this Court in the case of NEW INDIA ASSURANCE CO. LTD. v. YALLAVVA AND ANOTHER passed in M.F.A.No.30131/2010 dated 12.05.2020, while answering the questions referred held that, 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 played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss to the insurer. 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.

5. The learned counsel referring this judgment would contend that even if the Court comes to the conclusion that there is a breach of any condition recognized under Section 149(2) of the MV Act, even if it is a fundamental breach, the insurer is liable to pay the third party and recover the same from the insured.

6. Per contra, learned counsel for the Insurance Company would vehemently contend that Section 39 of the MV Act is very clear that no person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this Chapter and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner.

7. The learned counsel for the Insurance Company referring Section 39 of the MV Act would contend that when such prohibition is made under the MV Act, the Insurance Company is not liable to pay the compensation. The learned counsel would contend the Yellavva case (supra) c