The principle of pay and recover applies when an insurer is exonerated from liability due to violations of policy conditions, ensuring claimants receive compensation despite such breaches.

JUDGMENT :

LALITHA KANNEGANTI, J.

1. Aggrieved by the award passed in MVC.No.3122/2019 dated 15.11.2021 by the III Additional Small Causes Judge & ACMM, Bengaluru, the appellant/claimant is before this Court questioning the liability fixed on the owner of the vehicle and also seeking enhancement of the compensation.

2. The claim petition was filed seeking compensation of an amount of Rs.5,00,000/- for the injuries sustained by the claimant in the road traffic accident. It is the case of the claimant that on 24.03.2019 at about 12:30 p.m., when he was riding his motorcycle, at that time, all of a sudden, another motorcycle driven by its rider came in a rash and negligent manner, endangering to human life and dashed against the claimant. Consequently, the claimant fell down and sustained grievous injuries.

3. It is the case of respondent No.1/Insurance Company that due to the negligence on the part of the claimant, accident had occurred and respondent No.2 being the owner of the offending vehicle violated the terms and conditions of the insurance policy and as on the date of the accident, the rider of the offending vehicle was a minor and before the Tribunal, the owner of the offending vehicle remained absent.

4. The Tribunal had held that the accident had occured because of the rash and negligent driving of the rider of the offending vehicle. Further, when it comes to liability, the Tribunal had observed that the policy pertaining to the offending vehicle was in force as on the date of the accident. As on the date of the accident, the rider of the offending vehicle was minor. As per the traffic rules, the minimum age to apply for valid driving permit to drive a motorbike is 18 years. The Tribunal observed that it was laid down in several decided cases that it is the duty of the owner of the vehicle to ensure that it was not misused. Otherwise, he would be liable to pay compensation for the accident, when the vehicle is driven by a minor. The Tribunal observed that the owner of the vehicle has not come forward to explain in connection with the accident and to show that the offending vehicle was not misused and hence, the Tribunal held that the owner of the vehicle alone is liable to pay the compensation and the Insurance Company was absolved from its liability.

5. Coming to the quantum of compensation, the Tribunal has granted compensation as per the table given below:

6. Learned counsel appearing for the appellant/claimant submits that as per the law laid down by the Hon’ble Apex Court in case of National Insurance Co. Ltd. Vs. Swaran Singh , (2004) 3 SCC 297 , the principal of pay and recovery will apply and the Tribunal had fixed the liability on the owner of the vehicle. It is submitted that under the head of pain and suffering, the Tribunal had not granted just and reasonable compensation. When the claimant was in hospital as inpatient for 4 days and he was an outpatient for more than 5 months, the Tribunal had not granted any amount under the head of loss of income during laid up period. It is submitted that he was working as peon at Indian Air Force and due to the accident, he had taken one month leave and the Tribunal had not granted any amount under the head of loss of future income.

7. Learned counsel appearing for respondent No.1/Insurance Company submits that when the rider of the offending vehicle is a minor it amounts to fundamental breach of the conditions of the insurance policy, the principal of pay and recover will not apply. In this regard, she had relied on the judgment of the Hon’ble Apex Court in Swaran Singh's case referred supra at paragraph No.84 and 110(vi) which reads as follows:

"84. We have analysed the relevan