Pay And Recover Principle Not Applicable If Minor Involved In Causing Accident, Owner Liable To Compensate Claimants: Karnataka High Court

The Karnataka High Court has held that the principle of pay and recover is not applicable in case a minor boy drives the vehicle and causes the accident. In such cases, the owner of the vehicle alone shall pay the compensation to the claimants and not the Insurance Company, it held.

A single judge bench of Justice Hanchate Sanjeev Kumar allowed the appeal filed by The New India Assurance Co Ltd and set aside the order of the tribunal dated 11.08.2014 insofar as it relates to fastening liability on the Insurance Company to pay compensation.

The court said “Where a minor boy under the age of 16 years cannot be said to be a qualified person to apply for driving licence, it cannot also be categorised that he is not duly licenced so as to come within the ambit of sub-clause (ii) of subsection (2) Section 149 of the MV Act when a minor boy of 16 years old inherently is not a qualified person so as to apply for driving licence. Therefore, the principle of pay and recovery is not applicable in case a minor boy drives the vehicle and causes the accident.”

The Tribunal after appreciating the evidence on record had awarded the compensation on various heads to the claimant to the tune of Rs 2,56,000. The insurance company argued that the accident was caused by a minor boy, aged 16-years, who was riding the motorcycle at the time of accident. Since the rider was a minor, he did not have a valid driving licence to ride the motorcycle. Hence, the Insurance Company is not liable to pay the compensation, it was argued.

Claimants on the other hand argued that the owner of the motorcycle namely, Mohammed Mustapa (respondent No.4 in the appeal) was riding the motorcycle but not the minor.

The bench noted that it is only the oral evidence of owner of the vehicle that he was riding the motorcycle and he has not produced any documentary evidence. Therefore, his evidence does not have any corroboration.

“The FIR and complaint respectively, prove that one Mushraff, s/o Hakeem Mothisham was riding the motorcycle as on the date and time of the accident which is reflected in the FIR and complaint. The claimants are not related to R.W.1-Mohammad Mustapa to make any manipulation in the complaint,” it observed.

Court also rejected the claimant's contention that an order of pay and recovery can be made against the insurance company. It said “In the present case, while considering Sub-Clause (ii) of Sub-Section (2) of Section 149 of the Motor Vehicles Act, in the case of a minor boy of 16 years old who was riding the vehicle and caused the accident, this proviso is not applicable so as to say that terms and conditions of the Insurance Company are violated.”

It said that since the owner of the motorcycle handed over the motorcycle to a minor boy, he alone shall pay compensation to the claimants.

Accordingly it allowed the appeal filed by the Insurance company. Further it partly allowed the appeal filed by the claimants and modified the compensation to be paid by the owner to Rs.4,44,972 as against Rs.2,56,000, awarded by the Tribunal.

Appearance: Advocate C R Ravi Shankar for Advocate K Suryanarayana Rao for Appellants.

Advocate Nagaraja Hegde for R1 to R3.

Citation No: 2024 LiveLaw (Kar) 256

Case Title: The New India Assurance Co Ltd AND Bibi Nafisa & Others

Case No: MISCELLANEOUS FIRST APPEAL NO.7683 OF 2014(MV-D) C/W MFA CROSS OBJECTION NO. 54 OF 2020

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