Judgment :- Second respondent, Insurance Company in MVC No.338/2005 on the file of MACT, Chitradurga, has come up in appeal in MFA No.2952/2008. Similarly the same Insurance Company, which is second respondent in MVC No.704/2006 on the file of MACT, Chitradurga, has also come up in appeal in MFA No.3528/2006. Both the claim petitions are filed by two different claimants against the owner of bus bearing No.KA-14/A-9495 owned by first respondent in both the Claim Petitions and insured by the second respondent – Insurance Company, common in both the Claim Petitions. 2. Brief facts leading to filing of MFA No.2952/2008 is that on 21.11.2004 one Chikka Kariyappa, who was traveling in the bus bearing No.KA-14/A-9495 from Mathodu to Kanchipura which met with an accident near Kappanayakanahally Gate and in the said accident he succumbed to the injuries leading to his death. Hence his widow and three children filed Claim Petition seeking compensation for his death. In the said proceeding, the accident is not in dispute, ownership of the bus by the first respondent, since deceased and represented by his widow and children, was also not in dispute. It is also not in dispute that at the relevant time of accident, i.e., on 21.11.2004 the said bus was insured with second respondent, appellant herein. In the Claim Petition filed by the widow and children of deceased Chikka Kariyappa, the Insurance Company, appellant herein having entered appearance, filed Written Statement accepting issuance of policy covering the bus in question. It was also accepted that the said policy was issued in the name of original owner, N.B. Rudramuni. Incidentally in the said proceedings, while filing the Written Statement there is no reference to the policy being issued in the name of dead person. What was contended by the second respondent – Insurance Company in the said proceeding is that the accident has taken place due to negligence on the part of deceased Chikka Kariyappa, who was standing carelessly on the food board of the bus and when the said bus taking the turn, the deceased Chikka Kariyappa having lost the balance, fell down resulting in his death. Therefore the cause of death is his own negligence in not taking precaution in getting into the bus instead of traveling on the foot board. 3. In the said proceeding, based on the pleadings, issues were framed and evidence was recorded. Therefore the cause of death is his own negligence in not taking precaution in getting into the bus instead of traveling on the foot board. 3. In the said proceeding, based on the pleadings, issues were framed and evidence was recorded. In the said proceeding, on behalf of the Insurance Company, appellant herein, an Officer by name, Surya Prakash was examined as R.W.1, who in his evidence stated that though insurance coverage was issued to the bus in question, the same was issued on 09.11.2004 subsequent to death of N.B. Rudramuni who is said to have died on 06.07.2004 and therefore the said policy was not a valid policy, it was defective. That the claimants are not entitled to seek any compensation from the insurer under the defective policy, which was issued in the name of a dead person. In the said proceedings, the Tribunal on going through the pleadings and evidence available on record, proceeded to partially allow the Claim Petition awarding compensation in a sum of Rs.2,93,800/-. While doing so fastening the contributory negligence on the part of deceased Chikka Kariyappa to an extent of 10% for traveling on the foot board and awarded compensation to the claimants in a sum of Rs.2,64,420/- payable with interest at 6% from the date of petition till the date of deposit by the Insurance Company. Being aggrieved by the same, the present appeal is filed. 4. Brief facts leading to filing of MFA No.3528/2008 is that the claimants in MVC No.704/2006, namely Chikkappa, first claimant along with his wife, Gangamma, second claimant and his two children, namely Mariyamma and Latha, claimant Nos.3 and 4 were traveling in the bus bearing No.KA-14/A-9495 belonging to first respondent before the Tribunal and insured with second respondent – Insurance Company, appellant herein. On 08.12.2005 when they were so traveling, the said bus met with an accident, wherein the first claimant suffered injuries to his head resulting in his loosing conscious, for which he took treatment and thereafter the first claimant, his wife and children together filed Claim Petition seeking compensation for the injuries sustained by first claimant. On 08.12.2005 when they were so traveling, the said bus met with an accident, wherein the first claimant suffered injuries to his head resulting in his loosing conscious, for which he took treatment and thereafter the first claimant, his wife and children together filed Claim Petition seeking compensation for the injuries sustained by first claimant. In the said proceeding, second respondent – Insurance Company, appellant herein entered appearance and filed detailed objections taking up a defence that as on the date of accident, first respondent N.B. Rudramuni had died long back, i.e., on 06.07.2004 and infact subsequent to his death, insurance policy which was issued in his name for the aforesaid bus was renewed with the appellant herein without disclosing the fact of N.B. Rudramuni’s death to the Insurance Company. Therefore the policy issued by the Insurance Company covered the liability of the owner of the said bus, cannot be enforced in law for the reason that there cannot be a valid and binding contract between the Insurance Company and deceased N.B. Rudramuni, since he was dead as on the date of issuance of policy. Therefore it was contended that the entire Claim Petition is required to be dismissed. In the said proceeding, in addition to the evidence that is adduced by second claimant in support of their case, the Insurance Company adduced the evidence through its Officer, C.K. Surya Prakash as R.W.1, wherein he has reiterated the averments in the statement of objection and tried to substantiate that as on the date of issue of policy since N.B. Rudramuni died, issuance of policy in the name of a dead person itself was invalid and as such the Insurance Company is indemnify the liability that may arise against the owner of the bus, N.B. Rudramuni. The Tribunal after going through the pleadings, oral and documentary evidence available on record, proceeded to reject the said ground and allowed the Claim Petition awarding compensation to the claimants in a sum of Rs.18,000/- payable with interest at 6% p.a., from the date of petition till the deposit of the entire amount. The Tribunal after going through the pleadings, oral and documentary evidence available on record, proceeded to reject the said ground and allowed the Claim Petition awarding compensation to the claimants in a sum of Rs.18,000/- payable with interest at 6% p.a., from the date of petition till the deposit of the entire amount. Second respondent – Insurance Company being aggrieved by the same, has come up in this appeal on similar grounds, i.e., as on the date of issuance of policy for the years 2004-05 and 2005-06, the policy that was issued being in the name of a dead person, the same was not valid and as such the Insurance Company is legally not bound to answer the said claim. 5. In addition to this, in both the appeals another ground that is taken is that there is an offence committed by Chikka Kariyappa, deceased in MVC No.338/2005 and Chikkappa, first claimant in MVC No.704/2006 having traveled on the foot board of the bus and having committed the offence of violating any portion of Section 123(2) of the Motor Vehicles Act, which prohibits a passenger from traveling on the foot board, question of awarding any compensation to the first claimant in MVC No.704/2006 or to the claimants in MVC No.338/2005 for the wrong committed by the passengers in the respective accident does not arise. Since in both the appeals, the question that is required to be decided is the liability of the Insurance Company so far as its obligation to cover the liability issued to bus bearing No.KA-14/A-9495 belonging to first respondent in both the appeals, they are taken up together for consideration. 6. On going through the first ground of appeal that the policy being issued in the name of a dead person, the Insurance Company is not liable to pay the compensation cannot be accepted in view of the judgment of the Apex Court in the case of United India Insurance Company Limited vs. Santro Devi and others reported in (2009 (1) Supreme Court Cases 558), wherein under similar circumstances, the Apex Court has held as under: “The insurer could deny its liability on limited grounds as envisaged under sub-section (2) of Section 149 of the Act. One of the grounds which is available to the insurance company for denying its statutory liability is that the policy is void having been obtained by reason of non-disclosure of a material fact or by a representation of fact which was false in some material particular. Apart from raising a general and vague plea of fraud, no particulars thereof had been disclosed. The contract of insurance was entered into by the bank with the appellant. The premium was paid by the bank. The contract of insurance might have been drawn in the name of the deceased A but no witness has been examined on behalf of the appellant alleging that they were not aware thereabout. It is not in dispute that quantum of premium paid for renewal of the policy is in terms of the provisions of the Insurance Act, 1938. The vehicle was hypothecated to a nationalized bank. The certificate of registration, presumably, therefore, carried the name of the bank also. The bank admittedly paid the premium. If the appellant had been renewing the insurance policy on a year-to-year basis on receipt of a heavy amount of premium with the knowledge that the owner of the vehicle has expired and the name of his legal heirs and representatives had not been transferred in the registration book maintained by the authorities under the Motor Vehicles Act, the appellant cannot be heard to say that it was not bound to satisfy the claim of a third party. Not only the particulars of fraud had not been pleaded, but even no witness was examined on behalf of the appellant. Therefore no case of fraud in the matter of entering into the contract of insurance had been made out by the appellant.” 7. It is further seen that the facts and circumstances in these two cases and the matter referred to supra appears to be one and the same. In the instant case also, the bus bearing No.KA-14/A-9495 belong to N.B. Rudramuni was under the hypothecation to State Bank of Mysore, which is not in dispute as could be seen from Ex.P-5 (MVC No.338/2005). It is also not in dispute that the said hypothecation commenced during the period when N.B. Rudramuni was alive while he took loan for purchase of the said vehicle. It is also not in dispute that the said hypothecation commenced during the period when N.B. Rudramuni was alive while he took loan for purchase of the said vehicle. Therefore there was an obligation on the part of financier, i.e., State Bank of Mysore to keep the insurance policy alive by paying premium as and when it becomes due. Therefore in discharge of their obligation, the financier, State Bank of Mysore renewed the policy which was already issued covering the bus in question at the time of granting loan from time to time till the discharge of hypothecation, which took place on 29.11.2006, i.e., the date when the loan was discharged. Therefore in exercise of its obligation, the financier was renewing the policy which was issued initially when N.B. Rudramuni was alive. In that view of the matter, the contentions of the insurance company that renewal of the same in the name of a dead person would not enure to the benefit of his legal representatives when liability to pay the compensation arises. Infact, under same set of fact, the Apex Court while deciding the liability of the Insurance company has observed as under: “21. We have noticed hereinbefore that no witness was examined on behalf of the appellant. Only a competent officer informed in the matter could have disclosed as to whether the widow of late Atma Ram Sharma had signed any document or whether the fact that Atma Ram Sharma had expired in the year 1991 came to be known to the officers of the appellant only after the accident had taken place. If despite knowledge of the fact that Atma Ram Sharma had died in the year 1991, the Insurance Company, with its eyes wide open, had been accepting the amount of premium every year from the widow of the said late Atma Ram Sharma or from the bank, in our opinion, a contract by necessary implication, had come into being. Even in a case of this nature, the doctrine of “acceptance sub silentio” shall be applicable. 22. This Court furthermore in some of its decisions noticed the distinction between a statutory contract of insurance and a contract of insurance simpliciter. It is in that view of the matter, this Court in Rikhi Ram held: (SCC p. 100, paras 4-5) “4. Even in a case of this nature, the doctrine of “acceptance sub silentio” shall be applicable. 22. This Court furthermore in some of its decisions noticed the distinction between a statutory contract of insurance and a contract of insurance simpliciter. It is in that view of the matter, this Court in Rikhi Ram held: (SCC p. 100, paras 4-5) “4. A perusal of Sections 94 and 95 would further show that the said provisions do not make compulsory insurance to the vehicle or to the owners. Thus, it is manifest that compulsory insurance is for the benefit of third parties. The scheme of the Act shows that an insurance policy can cover three kinds of risks i.e., owner of the vehicle, property (vehicle) and third party. The liability of the owner to have compulsory insurance is only in regard to the third party and not to the property. Section 95(5) of the Act runs as follows: ’95. (5) Notwithstanding anything elsewhere contained in any law, a person issuing a policy of insurance under this section shall be liable to indemnify the person or classes of person specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of person.’ “5. The aforesaid provision shows that it was intended to cover two legal objectives. Firstly, that no one who was not a party to a contract would bring an action on a contract; and secondly, that a person who has no interest in the subject-matter of an insurance can claim the benefit of an insurance. Thus, once the vehicle is insured, the owner as well as any other person can use the vehicle with the consent of the owner. Section 94 does not provide that any person who will use the vehicle shall insure the vehicle in respect of his separate use.” 26. In this case, the statute, itself takes care of validity of the contract. It is mandatory. Section 94 does not provide that any person who will use the vehicle shall insure the vehicle in respect of his separate use.” 26. In this case, the statute, itself takes care of validity of the contract. It is mandatory. Once a valid contract is entered into, only because of a mistake or otherwise, the name of the original owner has not been mentioned in the certificate of registration and/or the documents of hypothecation of the vehicle with the bank had still been continuing in his name, it cannot be said that the contract itself is void unless it was shown that in obtaining the said contract a fraud had been practiced. Not only the particulars of fraud had not been pleaded, but even no witness was examined on behalf of the appellant. It cannot, thus, be said that a case of fraud in the matter of entering into the contract of insurance had been made out by the appellant.” 8. In the light of the observations made by the Apex Court under similar circumstances, this Court hold that the grounds urged by the Insurance company contending that the policy issued in the name of deceased N.B. Rudramuni is not a valid contract so far as insurance company is concerned in satisfying the claim of third party as against the legal representatives of N.B. Rudramuni cannot be accepted and it cannot be accepted that the insurance company has no responsibility to fulfil its obligation in discharging the award made in favour of the claimants in both the claim petitions. 9. So far as contributory negligence is concerned, in both the cases it is seen that the person involved in the accident namely Chikka Kariyappa, deceased in MVC No.338/2005 and Chikkappa, first claimant in MVC No.704/2006 is concerned, they were traveling on the foot board of the bus at the relevant point of time and the cause for the injury being suffered by them is in first place their traveling on the foot board. If only they were not traveling on the foot board at the relevant point of time, both of them would not have fallen down from the bus resulting in injuries to Chikkappa and death to Chikka Kariyappa resulting in filing of two Claim Petitions. If only they were not traveling on the foot board at the relevant point of time, both of them would not have fallen down from the bus resulting in injuries to Chikkappa and death to Chikka Kariyappa resulting in filing of two Claim Petitions. Therefore they themselves have committed an offence as contemplated under Section 123(2) of the Motor Vehicles Act and they are not entitled to seek compensation for the injuries said to have suffered by them in the said accident. However, considering the facts and circumstances of the case, some amount of responsibility is also there on the driver of the bus to ensure that while driving the bus there are no persons standing on the foot board. In the instant case, there is nothing on record to show that inspite of due care taken by the driver of the bus, Chikka Kariyappa and Chikkappa were standing on the foot board at the relevant point of time, resulting in the death of Chikka Kariyappa and injuries to Chikkappa. Therefore this Court cannot dismiss both the Claim Petitions holding that they themselves are in the wrong as contemplated under Section 123(2) of the Motor Vehicles Act, instead it would suffice to say that there is contributory negligence on the part of Chikka Kariyappa and Chikkappa in both the accident. So far as MVC No.338/2005 the Tribunal has taken that into consideration while awarding compensation and has fixed the contributory negligence at 10%, which according to this Court is on lower side and the same should have been atleast 50%. Therefore by revising the same from 10% to 50%. Therefore by revising the same from 10% to 50%, the appeal filed by the insurance company in MFA No.2952/2008 is allowed in part and similarly in the second appeal, i.e., MFA No.3528/2008 where the entire liability is fastened on insurance company is reduced by fastening the same on first claimant, Chikkappa to an extent of 50%. 10. In the result, both the appeals are allowed in part. 10. In the result, both the appeals are allowed in part. The liability of the insurance company is restricted to only 50% of the compensation awarded to the legal representatives of deceased Chikka Kariyappa in MVC No.338/2005 resulting in the claimants therein being entitled to receive a sum of Rs.1,46,900/- with interest at 6% p.a., from the date of petition till the date of deposit of entire amount, instead of Rs.2,64,420/- awarded to them in the said proceedings. So far as the claimants in MVC No.704/2006, the first claimant, Chikkappa is entitled to compensation in a sum of Rs.9,000/-being 50% of total amount awarded with interest at 6% p.a., from the date of petition till the date of deposit of entire amount, instead of Rs.18,000/- awarded by the Tribunal. From out of the amount in deposit, the modified amount of compensation shall be sent to the Tribunal for disbursement to the claimants and the balance shall be released in favour of the insurance company.