JUDGMENT : In this appeal, the petitioners are challenging the order of dismissal of the claim petition filed under Section 166 of the Motor Vehicles Act, 1988. 2. For the sake of convenience, the parties shall be referred to as per their status before the Tribunal. 3. Brief facts of the case are, on 17.01.2003 at about 10.30 p.m., the son of the petitioners by name C.Ramappa @ Ramachandrappa, the deceased, while walking by the side of the road near Chowdenahalli Gate, Vemgal Hobli, Kolar Taluk, Scooter bearing No.CRW-2637 was ridden in a high speed and dashed against the hind side of the deceased, due to which, he fell down and sustained injuries to his both legs, he was admitted to SNR Hospital, Kolar. During the course of hospitalization, the deceased succumbed to death on 20.01.2003. 3.1. In the first round of litigation, the petitioners as dependants approached the Tribunal for grant of compensation against the owner and insurer of the scooter. Claim was opposed by the respondents. After taking the evidence and hearing both parties, the Tribunal by judgment dated 09.02.2009 allowed the claim petition assessing the compensation of Rs.2,52,888/-with interest @ 6% p.a. Questioning the said judgment, the owner of the scooter as well as the insurer have jointly filed an appeal before this Court in M.F.A.No.4308/2009 (MV). Vide order dated 08.04.2011, this Court set aside the judgment dated 09.02.2009 and remanded the matter to answer the following questions of law: (i) Whether the deceased Ramappa died as a result of injury sustained by him in the motor accident? (ii) On account of whose rash and negligent riding of the scooter, the accident occurred? Post-remand, the parties have led further evidence and the Tribunal, after taking the evidence and hearing both parties, by the impugned judgment dated 07.06.2013 dismissed the claim petition. Aggrieved by the same, the petitioners are before this Court. 4. Heard the arguments of Smt.Suguna R.Reddy, learned counsel for the petitioners, Sri.B.Chethan, learned counsel for the owner of the scooter and Sri.A.N.Krishnaswamy, learned counsel for the Insurance Company. 5. It is the argument of learned counsel for the petitioners that: the accident took place at 10.30 p.m. on 17.01.2003. The deceased was a pedestrian and he was walking on the road. 5. It is the argument of learned counsel for the petitioners that: the accident took place at 10.30 p.m. on 17.01.2003. The deceased was a pedestrian and he was walking on the road. When the deceased was admitted to SNR Hospital, he has given a specific statement on 18.01.2003 that one Anwar Basha, who is examined as RW-1 in this case on behalf of respondents, was the rider of the Scooter, who hit against him and on the basis of such complaint, FIR was registered against RW-1. Till death of the deceased, the rider of the scooter was RW-1/Anwar Basha only. 5.1. Anwar Basha is the brother of one Babajan and Khadarvali. Khadarvali is the driver of Police Jeep in K.G.F. Police Station. On 27.01.2003, the scooter in question was sold to Babajan by K.Asif, the 1st respondent. Since the deceased was died, the brother of Khadarvali has purchased the scooter and the FIR was filed against RW-1, since RW-1 was not holding driving licence, Khadarvali interfered in the Police investigation and got removed the name of RW-1 and got filed the charge sheet against one K.M.Ramesh, who is in no way connected with the accident in question. 5.2. At the first instance, there is no denial of accident and the petitioners from the day one till the filing of the claim petition asserting that Anwar Basha is the rider of the scooter. They never accepted K.M.Ramesh as the rider of the scooter. Behind the back of the petitioners, with the assistance of Khadarvali, charge sheet is filed. 5.3. The first respondent has admitted in the evidence that he has purchased the scooter one year prior to the accident from one Gangadhar and he has not changed the RC in his name, but he has obtained insurance policy in his name only as owner. Only after the accident, he has sold the scooter to Babajan. The Insurance Company has accepted that the first respondent is the owner of the scooter and issued the policy. Both are sailing together as they filed joint appeal questioning the earlier judgment of the Tribunal. Hence, the first respondent is the owner, second respondent is the insurer and they are liable to pay compensation. The Insurance Company has accepted that the first respondent is the owner of the scooter and issued the policy. Both are sailing together as they filed joint appeal questioning the earlier judgment of the Tribunal. Hence, the first respondent is the owner, second respondent is the insurer and they are liable to pay compensation. Since the accident is proved, the identity of the rider of the scooter is established, there is a policy of insurance, petitioners have lost sole bread earner of the family, they are entitled to claim compensation and she sought for assessment of compensation. 6. It is contended by the learned counsel for the owner of the scooter that on 27.01.2003, he has sold the scooter to Babajan, the scooter in question was not involved in the accident that occurred on 17.01.2003, death of the deceased was not on account of the accident and first respondent is not liable to pay any compensation. 7. Per contra, learned counsel for the Insurance Company has contended that it is a case of fraud, the rider of the scooter has been replaced, the petitioners have not impleaded the owner of the scooter. As the first respondent is not the owner, claim against the first respondent and the Insurance Company is not maintainable, there was no accident as claimed by the petitioners, there are contradictions in the prosecution papers that one Anwar Basha is stated to be the rider of the scooter in the FIR whereas charge sheet was filed against one Ramesha as the rider of the scooter. The intention of the petitioners in getting these prosecution papers for their convenience is to gain compensation. Hence, the Tribunal has rightly dismissed the claim petition and he has supported the impugned judgment. 7.1. Alternatively it is argued that if RW-1/Anwar Basha is accepted as the rider of the scooter, he was not holding any valid and effective driving licence. There is violation of terms and conditions of the policy, the Insurance Company can avoid its liability and the Insurance Company is not liable to indemnify the insured. 8. I have given my anxious consideration to the arguments addressed on behalf of both sides and also perused the materials on record. 9. In order to explain the accident in question, the matter was earlier tried and the Tribunal has accepted the claim of the petitioners and allowed the petition. 8. I have given my anxious consideration to the arguments addressed on behalf of both sides and also perused the materials on record. 9. In order to explain the accident in question, the matter was earlier tried and the Tribunal has accepted the claim of the petitioners and allowed the petition. This Court in M.F.A.No.4308/2009 by order dated 08.04.2011 remanded the matter to the Tribunal to answer the questions as referred to supra. In view of the matter being taken up afresh, in the light of the remand order, this Court has to consider whether the Tribunal has answered the two questions. 10. Regarding the injuries and the cause of death of the deceased is concerned, in the accident, the petitioner has suffered fracture of both bones of leg, he was under hospitalization from 17.01.2003 to 20.01.2003 and he died in the Hospital. PW-3/Dr.B.S.Nagaraj, Medical Officer, who has conducted the autopsy. The testimony of PW-3 goes to suggest that during the course of autopsy, he has noticed that the deceased died due to heart block precipitated by road traffic accident on account of Thrombo Embolism. The cross-examination of PW-3 did not point out anything to say that the Thrombo Embolism was not the cause for heart attack due to injuries sustained in the accident. 10.1. In this regard, it is relevant to refer to the Medical Jurisprudence and Toxicology -1st Edition by Dr.K.S.Narayan Reddy, Chapter 13 at page-305 at Sl.No.(8), a detailed narration is made about the "Thrombosis and Embolism", which is extracted as follows: "(8) Thrombosis and Embolism: The formation of a clotted mass of blood in the non-interrupted cardiovascular system is called thrombosis, and the clotted mass is known as thrombus. An embolus is detached (part or whole) thrombus or some mass. Small pulmonary emboli are seen in 60% of all autopsies. In order of frequency, the most common site of arterial thrombi are coronary, cerebral, femoral, iliac, popliteal and mesenteric. Venous thrombi are most commonly formed in the veins of lower limbs (90 percent) usually in traumatic lesions, especially fractures long bones. They occur in the following order of frequency: deep calf (posterior tibial), femoral, popliteal and iliac veins. Arterial or cardiac thrombi usually begin at a site of endothelial injury or turbulence. Venous thrombi are most commonly formed in the veins of lower limbs (90 percent) usually in traumatic lesions, especially fractures long bones. They occur in the following order of frequency: deep calf (posterior tibial), femoral, popliteal and iliac veins. Arterial or cardiac thrombi usually begin at a site of endothelial injury or turbulence. It is a dry, friable tangled, gray mass that on transection shows darker gray lines of aggregated platelets interspersed between paler layers of coagulated fibrin. These lamellae are known as lines of Zahn. Venous thrombi have a much richer admixture of red cells. On transection laminations are not well developed, but tangled strands of fibrin can be seen. The postmortem clot forms a cast of the vessel, but it is rubbery and gelatinous. The factors which predispose to leg vein thrombosis after an injury are: (1) Local tissue damage, causing injury to veins. (2) An increase in clotting time of blood which is maximum at about two weeks after injury. (3) Immobility and bed rest. (4) General debility, especially in the old, leading to poor general circulation and cardiac output. The thrombus usually develops in 10 to 20 days and is detached in part or whole and travels to pulmonary artery other veins, such as the venous sinuses of dura mater or subclavian or axillary veins, external and internal iliac veins, prostatic plexus, uterine and ovarian veins, occasionally develop bland thrombi after traumatic injury. Arterial thrombosis and embolism is rare. Bullet wounds and stab wounds of the carotid arteries may injure the intima and a thrombus may develop at the site of the injury followed by embolism of middle cerebral arteries. A large embolus in the pulmonary trunk often produces a noticeable fullness before the vessel is opened. The embolus which blocks the pulmonary trunk causes death in few minutes due to vagal inhibition, acute asphyxia or right-sided heart failure, and no infarction is found in the lungs. Infarction of lung is seen when the artery to a bronchopulmonary segment or smaller vessel is blocked. Pulmonary emboli should be differentiated from post-mortem clots. Pulmonary emboli are (1) cylindrical in shape with parallel contours, (2) often branch and frequently curled, (3) their shape does not correspond to the shape of the vessels in which they are found. Infarction of lung is seen when the artery to a bronchopulmonary segment or smaller vessel is blocked. Pulmonary emboli should be differentiated from post-mortem clots. Pulmonary emboli are (1) cylindrical in shape with parallel contours, (2) often branch and frequently curled, (3) their shape does not correspond to the shape of the vessels in which they are found. When a large embolus obstructs the bifurcation of the pulmonary artery or one of its main branches, an immediate acute dilatation and failure of the right side of the heart occurs (acute cor pulmonale), When smaller branches of the pulmonary arteries are obstructed, generalised vasospasm occurs and causes sudden sharp increase in blood pressure in the lesser circuit with marked dilation and over-distension of the right ventricle. Systemic shock occurs with peripheral hypotension and interferes with coronary flow. The entire complex causes immediate stoppage of vital functions. Unusual types of pulmonary embolism are sometimes produced by trauma. Fragments of bone marrow may be found as emboli in smaller branches of the pulmonary artery, usually following fracture of bones containing marrow. Fragments of liver parenchyma may enter torn hepatic veins after blunt force injury to liver and may be carried as emboli. Laceration of brain accompanied by tearing of venous sinuses may lead to pulmonary embolus. Foreign bodies may enter veins or arteries and are transported as emboli, e.g., bullet." 11. The evidence of PW-3 takes support from the text in the Medical Jurisprudence that there is a possibility of a person who sustained fracture sustaining Thrombosis and also Embolism, which is directly connected with interruption of cardiovascular system of body due to clotted mas on account of injuries. The evidence of the petitioner is persuasive and there is no contra-material placed to show that the cause of death of the deceased was not connected with the accident. Accordingly, first question is answered. 12. As regarding negligence on the part of the rider of the scooter is concerned, there are two versions. According to the deceased and the petitioners, RW-1/Anwar Basha was the rider of the scooter in question at the time of accident. The deceased himself has given statement before the Police on 18.01.2003 that Anwar Basha was the rider of the scooter. A perusal of the FIR as well as the spot mahazar drawn on 17.01.2003 clearly points out that Anwar Basha was the rider of the scooter. 13. The deceased himself has given statement before the Police on 18.01.2003 that Anwar Basha was the rider of the scooter. A perusal of the FIR as well as the spot mahazar drawn on 17.01.2003 clearly points out that Anwar Basha was the rider of the scooter. 13. It is interesting to note that this Anwar Basha is none other than the own brother of Babajan, who has purchased the scooter in question on 27.01.2003 from the first respondent. One Khadarvali is the jeep driver working in KGF Police Station and he is the brother of Anwar Basha and Babajan. All of a sudden, after the death of the deceased, direction of the investigation was changed and the name of Anwar Basha was removed from the prosecution papers and one K.M.Ramesh, s/o Muniyappa is brought as accused in the charge sheet in C.C.No.536/2005 on the file of Civil Judge and J.M.F.C., Kolar. When the deceased himself has identified RW-1 as the rider of the scooter, all of a sudden how K.M.Ramesh came into picture in his place, what connection he has got to the relationship of Anwar Basha, Babajan and Khadervali. On behalf of the respondents, RW-1/Anwar Basha is brought before the Tribunal. 13.1. Anwar Basha admits that he was a pillion rider of the said scooter at the time of accident. He also admits that there was an accident involving the scooter and the deceased. Why he has gone to the place of accident at 10.30 p.m. is not explained. In the course of cross-examination, on behalf of the petitioners, RW-1 admits that his brother Babajan has purchased the scooter from the first respondent on 27.01.2003. 14. RW-2/K.Asif is the first respondent, whose testimony shows that he has sold the scooter to Babajan on 27.01.2003. He admits that he has purchased the said scooter from one Gangadhar, one year 2 months prior to the accident and he asserts that he is the owner of the said scooter. He has not got transferred the vehicle in his name, but has obtained policy of insurance as the owner of the scooter. Ex.R1 is the Delivery Note, which indicates that the first respondent has sold the scooter to Babajan on 27.01.2003. The accident took place on 17.01.2003. He has not got transferred the vehicle in his name, but has obtained policy of insurance as the owner of the scooter. Ex.R1 is the Delivery Note, which indicates that the first respondent has sold the scooter to Babajan on 27.01.2003. The accident took place on 17.01.2003. It goes to show that after the accident, first respondent sold the scooter to Babajan and for this reason, the role of Khadarvali comes into picture to protect his brothers. 14.1. Ex.R3 is the R.C. which stands in the name of one Gangadhar and in view of the evidence of RW-2/K.Asif that he himself is the owner of the scooter, the entries made in Ex.R3 loses its importance. Ex.R2 is the policy of insurance, which stands in the name of first respondent. Ex.R4 is the MLC register extract, which ratifies the history of accident that took place on 17.01.2003 at 10.30 p.m. near Chowdenahalli Gate where the deceased was hit by the scooter. 15. On behalf of the petitioners, one Srinivas has been examined as PW-2, who is an eyewitness, whose testimony goes to show that he was going behind the scooter and he has witnessed the accident. According to him, RW-1/Anwar Basha was riding the scooter. It is the said scooter, which had hit on the back side of the deceased. He had an interaction with RW-1 as both hail from Chowdenahalli village. When PW-2 witnessed the RW-1 as the rider of the scooter hitting on the back side of the deceased, the change of name of the driver from FIR to charge sheet was due to driving licence. 15.1. In these special circumstances, the filing of the charge sheet is immaterial as the petitioners proved the accident by independent evidence. The independent evidence placed by the petitioners and the records clearly point out that an undisputed point of time, RW-1/Anwar Basha as the rider of the scooter had caused the accident. Subsequent to intervention of the Police to safeguard Anwar Basha, Babajan, tampering of records has been taken place. The evidence culminated that RW-1 was the rider of the scooter, his actionable negligence caused the accident resulting in death of the deceased. Accordingly, 2nd question framed by this Court is answered. 16. Now the quantum of compensation. Accident is of the year 2003, the deceased was working in Stone Quarry. Nothing is produced in proof of income. The evidence culminated that RW-1 was the rider of the scooter, his actionable negligence caused the accident resulting in death of the deceased. Accordingly, 2nd question framed by this Court is answered. 16. Now the quantum of compensation. Accident is of the year 2003, the deceased was working in Stone Quarry. Nothing is produced in proof of income. Hence, notional income has to be taken at Rs.2,000/-per month. Deceased was aged 25 years and 40% ha to be considered as future prospects and 50% has to be deducted towards personal expenses. Then loss of dependency will be : Rs.2,000/-+ 800/-(40%) = Rs.2,800/--Rs.1,400/-(50%) = Rs.1,400/-x12x18 = Rs.3,02,400/-. Towards parental consortium at Rs.11,000/-each and loss of estate and funeral expenses at Rs.5,500/-each is assessed. Compensation under conventional heads comes to Rs.33,000/-. Total compensation comes to Rs.3,35,400/-for which the petitioners are entitled to, in the facts and circumstances of the case. 17. As regarding liability is concerned, the material on record clearly shows that RW-1 being the rider of the scooter was not holding valid and effective driving licence and for this reason, one K.M.Ramesh has occupied his place to facilitate liability against the Insurance Company. RW-1/Anwar Basha was not holding valid and effective driving licence. Since the vehicle was ridden by a person, who does not have a valid and effective driving licence, there is a fundamental breach of terms and conditions of the policy within the meaning of Section 149(2) of the Act, the Insurance Company can avoid its liability to indemnify the insured. 18. The Hon'ble Apex Court in Pappu and Ors. -vs-Vinod Kumar Lamba and Anr., AIR 2018 SC 592 and Full Bench of this Court in New India Assurance Co.Ltd., Bijapur -vs-Yallavva and Another, ILR 2020 KAR 2239 (FB) held that in case of fundamental breach of the terms of the policy, the Insurance Company can avoid its liability. As the accident is 21 years old, the aged dependants are waiting to enjoy the fruits of the award, it is a fit case for applying the principle of 'Pay and Recovery' and the Insurance Company has to deposit the compensation and recover the same from the owner i.e., first respondent. 19. As the accident is 21 years old, the aged dependants are waiting to enjoy the fruits of the award, it is a fit case for applying the principle of 'Pay and Recovery' and the Insurance Company has to deposit the compensation and recover the same from the owner i.e., first respondent. 19. In view of the above discussion, the appeal merits consideration, in the result, the following: ORDER i) Appeal is allowed; ii) Impugned judgment and award is set aside; iii) Claim petition filed under Section 166 of the Act is hereby allowed; iv) Petitioners are entitled to total compensation of Rs.3,35,400/-with interest at the rate of 6% per annum from the date of petition till its realization; iv) The first respondent is held liable to pay compensation; v) The Insurance Company is directed to deposit the entire compensation with interest supra within eight weeks from the date of receipt of certified copy of the judgment and to recover the same from the first respondent in the same proceedings.