Bangalore District Court
Sri.Frank Micheal D'Souza vs Sri.Jaffer Shariff on 28 June, 2017
IN THE COURT OF III ADDL. SENIOR CIVIL JUDGE AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, BENGALURU. (SCCH-18)
Dated this 28th day of June 2017
Present: SRI.VEERANNA SOMASEKHARA
B.Com, LL.B.,
III ADDL. SENIOR CIVIL JUDGE.
COURT OF SMALL CAUSES,
BANGALORE.
M.V.C.No.4044/2016
PETITIONERS: 1. Sri.Frank Micheal D'Souza
S/o.Late Ligoury D'Souza
Aged about 68 years,
2. Smt.Mitilda Gladys D'Souza
W/o.Frank Micheal D'Souza,
Aged about 64 years,
Both are residing at:
No.301, Amity Palace,
Plot No.983, 9th Cross,
Divanarapalya,
Bengaluru-560054.
Permanent Address:
No.1-3-250/1, Kottar,
Mangalore-575 006.
(By Pleader Sri.GS)
/Vs./
RESPONDENTS: 1. Sri.Jaffer Shariff,
S/o.Akbar Sharief
Major,
R/at No.15, 'D' Cross,
1st Floor, 1st Cross,
J.J.R. Nagar, Rayapura,
Chamarajpet,
Bengaluru-560018.
(Exparte)
2. Liberty Videocon Insurance Co.Ltd.,
3rd floor, Unit No.302,
No.202, Prestige Kada,
Richmond Road,
Bengaluru-560025.
(By pleader Sri. RSS)
J U D G M E N T
The petitioners have filed this claim petition against the respondents U/S. 166 of M.V. Act for seeking compensation of Rs.4,00,00,000/- with interest for the death of Rohith D'souza S/o.Frank Michael D'Souza in a road traffic accident.
2. The brief contents of petition are as under:
The contention of the petitioners is that, deceased Rohith D'Souza was their son and he was hale and healthy at the time of accident, aged about 30 years, working as a Senior Purchase Officer at Toyota Kirloskar Motors Pvt.Ltd., and drawing salary of Rs.1,30,375/-p.m. The allegation of the petitioners is that, on 27-9-2015, at about 5.30 P.M., their son Rohith D'Souza was riding the Honda Activa bearing Registration No.KA-04-EE-9172 in a slow and cautious manner from C.V.Raman Nagar Road side towards Mathikere and when he reached in front of Jyothi Timbers on HMT Road, at that time, the rider of the scooter bearing Reg.No.KA-05-JK-2412 ride the same in a rash and negligent manner and dashed to the Honda Activa. Due to the said impact, the rider of the Honda Activa fell down on the road along with two wheeler and sustained grievous injuries. Thereafter, the public gathered at the spot have shifted the injured -
Rohith D'Souza to M.S.Ramaiah hospital, Bengaluru, for treatment wherein, he has taken treatment as an inpatient and on 12-10-2015, injured succumbed to the said injuries. The post mortem was conducted at Victoria hospital, Bengaluru. After the postmortem, the petitioners have received the dead body and conducted the funeral and last rights by spending more than Rs.1,50,000/-. Further the contention of the petitioners is that, they have spent more than Rs.4,50,000/- towards medical expenses of their injured son till his death.
3. The contention of the petitioners is that, their son Rohith D'Souza was the only earning member in their family and due to unexpected death of their son, they have suffered lot and lost their earning member and lost their lovely son and as such, they have put to great mental shock. Further the contention of the petitioners is that, if their son Rohith D'Souza continued the same job in the same company, then he would have earned a sum of Rs.2,00,000/- P.M. and also getting promotions.
4. The contention of the petitioners is that, the respondent No.1 and 2 are the owner and insurer of the alleged two wheeler bearing Reg. No.KA-05-JK-2412 and the policy was in force as on the date of accident. The accident has occurred due to rash and negligent riding of the rider of the alleged motorcycle and as such, both the respondents are jointly and severally liable to pay compensation to the petitioners. Contending the above facts, they prays to grant for compensation of Rs.4,00,00,000/- with interest and cost.
5. In response to the petition notice, the respondent No.2 has appeared before the court through his counsel and filed the objections statement. The respondent No.1 has not appeared before the court. Accordingly, he was placed exparte.
6. The brief contents of objection statement of respondent no.2 are as under:
The claim petition filed by the petitioners is not maintainable either in law or on facts. The respondent No.2 has contended that, the owner of the alleged vehicle and the concerned police have not complied the mandatory provision of Sec.134 (c) and 158 (6) of M.V.Act. Further he contended that, the rider of the alleged two wheeler was not holding a valid and effective driving licence to ride the vehicle as on the date of accident, in spite of that, the owner of the alleged vehicle has entrusted the vehicle to him and as such, the owner of the vehicle has contravened the provisions of MV Act and also violated the policy conditions. Hence, the respondent No.2 is not liable to indemnify the owner of the alleged vehicle i.e. respondent No.1. Further the respondent No.2 has denied the issuance of policy to the alleged vehicle and if the petitioners have proved the issuance of policy, then the liability if any is subject to the terms and conditions mentioned in the policy.
Further the respondent No.2 has denied the contents of column No.1 to 21 of the claim petition in toto. Further the respondent No.2 has denied the involvement of the alleged scooter in the accident and denied the entire accident in toto. Further he contended that, the alleged accident has occurred due to sole negligence on the part of the deceased himself as he was riding the vehicle in a negligent manner without having driving licence and dashed to the alleged scooter. The respondent No.2 has denied the age and status of the deceased and also denied the relationship of the petitioners with the deceased and dependency of them upon the income of the deceased. Further the respondent No.2 contended that, the compensation claimed by the petitioners is highly excessive, exaggerated and arbitrary one. Contending the above facts, he prays to dismiss the petition as against him with cost.
7. On the basis of above pleadings, the following issues were framed:
1. Whether the petitioners prove that Sri. Rohith D.Souza S/o Frank Michael D.Souza died due to injuries sustained by him in a motor vehicle accident that was taken place on 27-9-2015, at about 5.30 P.M., Opp. to Krishnaton Hotel, on HMT Main Road, Yeswanthpura, Bengaluru involving SUZUKI ACCESS-125 bearing Reg.
No.KA-05-JK-2412 belonging to Respondent No.1 and the said vehicle insured with 2nd respondent?
2. Whether the petitioners prove that the accident has mainly occurred due to the rash and negligent driving of the driver of the said vehicle?
3. Whether the petitioners prove that they are the only legal heirs and the dependent of the deceased?
4. Whether the petitioners are entitled for compensation as prayed? if so, at what rate and from whom?
5. What order or award?
8. In order to prove their case, the petitioner No.1 has examined himself as PW-1 and got marked the documents as Ex-P-1 to P-28, Ex-P-41 to 43 and 51 to 53. To prove the occupation and income of the deceased, the petitioners have examined the Asst.Manager of Toyota Kriloskar Motor Pvt.Ltd., as PW-2 and got marked the documents as Ex-P-29 to 40. Further the petitioners have examined the RMO of M.S.Ramaiah hospital as PW-3 and got marked the documents as Ex-P-44 to 50 and 50(a).
9. To disprove the case of the petitioners and to prove the defence, the respondent No.2 has examined the rider of the alleged scooter as RW-1 and examined the Assistant ARTO of Gnanabharathi RTO office as RW-2 and got marked the documents as EX-R-1 and 2.
10. Heard the arguments on both the sides and perused the records.
11. My findings to the aforesaid issues are as follows:
Issue No.1 to 3: In the Affirmative Issue No.4 : In the Partly affirmative Issue No.5: As per final order For the following:
REASONS
12. Issue No.1 & 2 : These issues are interconnected with each other. Hence in order to avoid the repetition of facts, they are taken together for common consideration.
13. During the course of arguments, the learned counsel for the petitioners argued by reiterating the contents of petition and also evidence put forth by PW-1 to 3. Further he argued that, to prove the involvement of the alleged scooter in the accident and to prove the rash and negligent riding of the rider of the scooter, the petitioners have produced the copy of police investigation papers and on perusal of the contents of those documents, it is clear that, the alleged scooter has involved in the accident and the alleged accident has occurred due to sole negligence on the part of the rider of the alleged scooter. Further he argued that, the defence of the respondent No.2 is that, the alleged accident has not occurred due to rash and negligent riding of the rider of the alleged scooter and to prove the said fact, though, the respondent No.2 has examined the rider of the alleged vehicle as RW-1, but the evidence of RW-1 is not supported with proper documents. On the other hand, on perusal of the evidence of RW-1 itself shows that, the alleged vehicle was involved in the accident and the accident has occurred due to sole negligence on the part of the RW-1. Further he argued that, to prove the occupation and income, the petitioners have examined the employer of deceased as PW-2 and the evidence of PW-2 is supported with proper documents and as such, the petitioners have proved the occupation and income of deceased as contended in the petition. Further he argued that, another defence of the respondent No.2 is that, after the death of Rohith D'Souza, the petitioners have received an amount of Rs.64,98,300/- under group personal accident insurance and as such, the said amount is deductible in total compensation amount. But the said amount is not deductible, as the said policy was taken by the deceased from his personal amount. Further he argued that, the petitioners have proved their case as contended in the petition by producing oral and documentary evidence. Accordingly, he prays to allow the petition.
14. In support of his arguments, the learned counsel for the petitioners has relied upon the following citations:
1. ILR 2003 KAr 493 (Mallamma Vs.Balaji and others)
2. MFA No.11380/2008 (National Ins.Co.Ltd., Vs. Smt.Gayathri and others)
3.(2015) I SCC 539 (Kumari Kdiran Vs. Sajjan Singh and others)
4. 2013 ACJ 1403 (Rajesh and others Vs. Rajbir Singh and others).
5. 2014 ACJ 415 (National Ins.co.Ltd., Vs. Vaishali Harish Devare and others).
6. ILR 2016 KAR 549 (Mrs.Rajeshwari G.Bhuyar Vs. Singdhu Travels and another).
7. MFA No. 1205/2010 C/w 54/2010 (A.Arun and another Vs. Smt.H.B.Pushpa and another).
8. ILR 1998 KAR 2210 (Smt.Lalitha and another Vs.Dashanbhat Haribansh Bhat and another).
9. 2009 ACJ 992 (National Ins.Co.Ltd., Vs. Neelam and others).
10. ILR 2003 KAR 3511 (United India Ins.Co.Ltd., Vs. Bharamappa Doddabirappa Pujari and another).
15. Per contra, the learned counsel for the respondent No.2 argued by reiterating the contents of objection statement filed by the respondent No.2 and also evidence put forth by RW-1 and 2. Further he argued that, the PW-1 is not an eyewitness to the alleged accident and as such, the evidence of PW-1 is not much helpful to decide the alleged rash and negligent riding of the rider of the alleged scooter. On the other hand, on perusal of the copy of police investigation papers produced by petitioners, itself shows that, deceased has also contributed major extent of negligence for occurrence of accident. Further he argued that, to prove the occupation and income of deceased, though, the petitioners have examined the employer of the deceased as PW-2, but on perusal of the evidence of PW-2, it clearly goes to show that, the deceased Rohith D'Souza was not drawing salary of Rs.1,30,375/-P.M.as on the date of accident. Further he argued that, on perusal of the evidence of Pw-1, it clear that, after the accident, the petitioners have received an amount of Rs.64,98,300/- from Group personal insurance scheme and as such, if this court grants the compensation to the petitioners, then the above mentioned amount is deductible from the said compensation amount. Further he argued that, the petitioners have failed to prove their case as contended in the petition by producing proper documents. Contending the above facts, he prays to dismiss the claim petition as against the respondent No.2 with cost.
16. In support of his arguments, the learned counsel for the respondent No.2 has relied upon the following citations:
1. Civil Appeal No.4216/2008 dt.7-7-2008 (Bhakra Beas Management Board Vs. Smt.Kanta Aggarwal and others)
2. Civil Appeal No.9654/2016 dt.23-9-2016 (Reliance Gen.Ins.Co.Ltd., Vs. Shashi Sharma and others)
3. MFA No.3153/2014 C/w 3151/2014 dt.16-11-2016 (Shri Santhosh.K Vs. The Manager, Tata AIG Gen.Ins.Co.Ltd., and another)
4. 2013 ACJ 2478 (New India Assurance Co.Ltd, Vs. Manish Gupta and another)
5. MFA No.1425/2007 dt.24-1-2012 (Smt.Sree Priya B.S. and others Vs. Sri.S.V.Suresh and another)
6. Civil Appeal No.3784/2015 C/w 3778/2015 dated 27-7-2016 (Mamatha and others Vs. R.Ranganath and others)
17. On rival contention urged by both the counsel, I intend to discuss the case on merits.
On perusal of the evidence available on records, it reveals that, to prove their case, the petitioner No.1 has examined himself as PW-1 and he has stated in his evidence by reiterating the contents of petition. Further in support of his evidence, the PW-1 has produced the documents and the same are marked as Ex-P-1 to 28.
18. Thereafter, the counsel for the respondent No.2 has cross-examined the PW-1 at length. In the cross-examination, the Pw-1 has clearly stated at page No.14 and 15 that:
"CfðAiÀÄ°è PÁtô¹zÀ ªÁºÀ£À £À£Àß ªÀÄUÀ¤UÉ C¥ÀWÁvÀ ªÀÆrgÀĪÀÅ¢®è, DzÀgÉ, £À£Àß ªÀÄUÀ£Éà ¢é-ZÀPÀæ ªÁºÀ£ÀªÀ£ÀÄß ªÉÃUÀªÁV ZÀ¯Á¬Ä¹PÉÆAqÀÄ ºÉÆÃV, D ªÁºÀ£À¢AzÀ ©zÀÄÝ, UÁAiÀÄUÀÉÆArgÀĪÀ£ÉAzÀgÉ ¸ÀjAiÀÄ®è. ¥ÀjºÁgÀ ¥ÀqÉAiÀÄĪÀ GzÉÝñÀ¢AzÀ n.JA. jUÉÆà EªÀgÀ PÀqɬÄAzÀ £Á£ÀÄ ¦ügÁåzÀ£ÀÄß ¸ÀļÁîV ¤Ãr¹gÀĪɣÀÉAzÀgÉ ¸ÀjAiÀÄ®è. "
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On perusal of the above evidence, it reveals that, the defence of the respondent No.2 is that, the alleged scooter was not at all involved in the accident and not caused the accident to deceased Rohith D'Souza. On the other hand, Rohith D'Souza was riding the 2 wheeler in a rash and negligent manner and due to his own negligence, he fall from bike and sustained injuries and succumbed to the said injuries.
19. To prove the said defence, the respondent No.2 has not produced any supportive documents. On the other hand, the respondent No.2 has examined the rider of the alleged scooter as RW-1, who has stated in his evidence that, on 27-9-2015 he was riding the alleged scooter in a slow and cautious manner and at that time, one person was riding the motorcycle in a rash and negligent manner without following traffic rules and dashed to his vehicle and due to which, he fell down on the road and sustained injuries. Further he has stated that, the alleged accident has occurred due to sole negligence on the part of the rider of the said motorcycle, but not on the part of him. Thereafter, the counsel for the petitioners has cross-examined the RW-1 at length. In the cross-examination, the Rw-1 has clearly admitted at page No.5 and 6 that:
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On perusal of the above evidence, one thing is clear that, the alleged scooter was involved in the accident and after the accident, the concerned police have registered a case against the rider of the alleged scooter and after completion of investigation, the concerned police have filed the charge sheet against the rider of the said vehicle i.e. RW-1. Considering the above facts and on perusal of evidence of PW-1 and RW-1 and for the above reason, I am of the opinion that, the defence of the respondent No.2 is inconsistent one, as at one stretch, the respondent No.2 has denied the involvement of the alleged vehicle in the accident and on the other stretch, the respondent No.2's witness himself has admitted the involvement of the alleged two-wheeler in the accident. Considering the above facts and for the above reason, I am of the opinion that, as per the version of the RW-1, if the alleged accident has not occurred due to his negligence, then, it was the duty of the RW-1 to lodge the counter complaint before the concerned police as against the rider of the two-wheeler i.e. deceased Rohith D'Souza. But the RW-1 did not do so. Considering the above facts and circumstances of the case and for the above reason, I am of the opinion that, the oral version of the respondent No.2 is not acceptable one.
20. Further to prove the rash and negligent riding of the rider of the alleged scooter, the petitioners have relied upon the copy of FIR with complaint and charge sheet and the same are marked as Ex-P-1 and 13. On perusal of Ex.P.1 and 13 i.e., copy of FIR with complaint and charge sheet, it reveals that, Yeshwanthapura traffic police have registered a case against the rider of the alleged scooter and after completion of investigation, the concerned police have filed the charge sheet against the rider of the said scooter.
21. Considering the above facts and on perusal of evidence of PW-1 and RW-1 coupled with contents of above documents and for the above reason, I am of the opinion that, the petitioners have proved that, the alleged accident has mainly occurred due to rash and negligent riding of the rider of the alleged scooter as contended in the petition by producing oral and documentary evidence.
22. Further on perusal of Ex.P.11 & 12 i.e. copy of inquest panchanama and PM report, it shows that, Rohith D'Souza has sustained grievous injuries in the above said accident and succumbed to the said injuries.
23. Considering the above facts and circumstances of the case and on appreciation of evidence of PW-1 and RW-1 coupled with documents and for the above reason, I am of the opinion that, the petitioners have proved these issues by producing sufficient documents. Accordingly, I answer these issues in the affirmative.
24. Issue No.3:- The specific contention of the petitioners is that, they are the parents of deceased Rohith D'Souza and as such, they are the legal heirs and dependents of deceased. Further the contention of the petitioners is that, due to unexpected death of Rohith D'Souza, they have suffered lot and lost the earning member of the family.
On the other hand, the respondent No.2 has denied the above contention of the petitioners in toto.
25. To prove the relationship, the petitioners have relied upon the documents at Ex-P-14 to 16 i.e. copy of election ID cards standing in the name of petitioners and deceased. On perusal of the contents of those documents, it reveals that, the petitioners are the parents of deceased Rohith D'Souza and as such, they are the legal representatives of deceased. Further on perusal of evidence of the PW-1, it reveals that, the father of the deceased i.e. petitioner No.1 is a pensioner and the petitioner No.2 is not an earning member and as such, the petitioners are the dependents of deceased Rohith D'Souza. Considering the above facts and for the above reason, I am of the opinion that, the petitioners have proved this issue by producing oral and documentary evidence. Accordingly, I answer this issue in the affirmative.
26.Issue No.4: The specific contention of the petitioners is that, deceased Rohith D'Souza was hale and healthy at the time of accident, aged about 30 years, working as a Senior Purchase Officer at Toyota Kirloskar Motors Pvt.Ltd., Bidadi, Ramangar Dist. and drawing salary of Rs.1,30,375/-p.m. Further the contention of the petitioners is that, deceased Rohith D'Souza was the only earning member in their family and due to unexpected death of their son, they have suffered lot and put to great mental agony.
On the other hand, the respondent No.2 has denied the above contention of the petitioners in toto.
27. To prove the age, the petitioners have relied upon the document at Ex-P-17 i.e. copy of passport standing in the name of deceased, wherein, the date of birth of the deceased is shown as 31-12-1984 and the same is considered as date of birth of the deceased, then it is clear that, as on the date of accident, deceased Rohith D'Souza was aged about 30 years. Hence, the proper multiplier applicable to the case on hand is '17'.
28. To prove the occupation and income, the petitioners have examined the Assistant Manager Pay roll and welfare department of Toyota Kirloskar Motors as PW-2, who has stated in his evidence that, since 17 years he is working in the Toyota Kirloskar Motors Pvt.Ltd., and he know the deceased Rohith D'Souza and he was working as Senior Purchase officer in the company and drawing salary of Rs.1,30,375/- p.m. Further he has stated that, deceased Rohith D'Souza was very efficient and hard worker and he was eligible for promotions and deceased Rohith D'Souza has been alive by the time of superannuation, then his salary would have been Rs.2,50,000/- p.m. In support of his evidence, the PW-2 has produced the documents and the same are marked as Ex-P-29 to 40.
29. Thereafter, the counsel for the respondent No.2 has cross-examined the PW-2 at length. In the cross-examination, the Pw-2 has clearly admitted at page No.10 and 11 that:
"¤.¦-34jAzÀ 39 JAzÀÄ UÀÄgÀÄw¹zÀ ¥Éà ¹è¥ï£ÀÄß £ÉÆÃqÀ¯ÁV, gÉÆûvï r¸ÉÆÃd EªÀgÀ ¸ÀA§¼ÀªÀÅ MAzÀÄ wAUÀ½VAvÀ E£ÉÆßAzÀÄ wAUÀ¼ÀÄ ºÉZÀÄÑ PÀrªÉÄ DVgÀĪÀÅzÀÄ PÁtĪÀÅzÉAzÀÄ ¸ÀÆa¸À¯ÁV, ºËzÀÄ, DzÀgÉ CzÀÄ DvÀ£ÀÄ wAUÀ½UÉ J¥ÀëÄÖ¢£À PÉ®¸ÀPÉÌ ºÁdgÁUÀĪÀ£ÀÄ CzÀPÀÌ£ÀÄUÀÄtªÁV ¸ÀA§¼ÀzÀ°è ªÀåvÁå¸À DUÀĪÀÅzÉAzÀÄ ¸ÁQë ºÉüÀÄvÁÛgÉ. É."
ªÀÄÄRå«ZÁgÀuÉAiÀÄ RArPÉ 2 gÀ°è PÁtô¹zÀAvÉ gÉÆûvï r¸ÉÆÃd EªÀjUÉ ªÀiÁ¹PÀ gÀÆ.1,30,375.00 ¸ÀA§¼À §gÀzÉà EzÀÝgÀÆ PÀÆqÀ £Á£ÀÄ CzÀ£ÀÄß ºÉZÁÑV ºÉýgÀĪɣÉAzÀgÉ ¸ÀjAiÀÄ®è." On perusal of the above evidence, it reveals that, though the counsel for the respondent No.2 has cross-examined the PW-2 at length, but nothing has been elicited from him to disbelieve his version regarding the occupation of deceased Rohith D'Souza.
30. Further on perusal of Ex-P-31 i.e. copy of appointment order, it shows that, deceased Rohith D'Souza was apponted as Senior officer purchase division, Toyota Kirloskar Motors Pvt.Ltd., w.e.f. 1-4-2010. Further on perusal of Ex-P-32 i.e. copy of letter of confirmation of service, it shows that, Toyota Kirloskar Motors Pvt.Ltd., was confirmed the service of Rohith D'Souza (permanent employee) w.e.f. 12-11-2010 and as such, on perusal of contents of those documents, it is clear that, deceased Rohith D'Souza was a permanent employee in Toyota Kirloskar Motors Pvt.Ltd.,
31. Further on perusal of Ex-P-33 i.e. copy of letter issued by DGM of Toyota Kirloskar Motors Pvt.Ltd., it shows that, the salary of the deceased was revised and fixed for Rs.1,30,375/- p.m. w.e.f. 1-4-2015. But on perusal of Ex-P-34 to 38 i.e. copy of pay slips for the month of April 2015 to August 2015, it shows that, deceased Rohith D'Souza was drawn salary of Rs.97,185/- Rs.97,185/-, Rs.96,192/-, Rs.1,42,454/- and Rs.1,07,312/- respectively for the month of April 2015 to August 2015. On perusal of the above salary slips, it reveals that, the salary of the deceased was difference from one month to another month and at no point of time, deceased Rohith D'Souza was drawn salary of Rs.1,30,375/- as shown in the Ex-P-33.
32. Further as stated above that, the alleged accident has occurred in the month of September 2015 and as such, if last drawn salary i.e. August 2015 salary was considered as income of deceased certainly it would meet the ends of justice. On perusal of Ex-P-38 i.e. copy of pay slip for the month of August 2015, it shows that, deceased Rohith D'Souza was drawn salary of Rs.1,07,312/-. Further on perusal of Ex-P-23 i.e. copy of bank account statement, standing in the name of deceased, it shows that, an amount of Rs.85,995/- was credited to the bank account of deceased as salary for the month of August 2015. (after deduction of some amount for some benefits).
Considering the above facts and for the above reason, I am of the opinion that, if the income of the deceased is considered as Rs.1,07,000/-p.m., certainly it would meet the ends of justice.
33. Further as stated above that, monthly income of the deceased is considered as RS.1,07,000/-, then the annual income of the deceased comes to Rs.12,84,000/-. Further as per the income tax slab for the assessment year 2015-16, the total tax to the above income would be Rs.1,70,156/-. Considering the above facts, I am of the opinion that, as per the income tax slab for the assessment year 2015-16, if an amount of Rs.1,70,156/- was deducted as tax towards income of Rs.12,84,000/- then the income of deceased comes to Rs.11,13,844/-and if it is taken as Rs.11,14,000/- P.A. certainly it would meet the ends of justice.
34. Further admittedly, deceased Rohith D'Souza was a bachelor and as such, if 50% of the income of the deceased shall be deducted towards his personal expenses, on such deduction, income of the deceased comes to Rs.5,57,000/-P.A.
35. Further as stated above that, deceased Rohith D'Souza was a permanent employee and aged about 30 years as on the date of accident. Hence, in view of the observation of the Hon'ble apex court in a citation reported in 2015 AIR SCW 3105 (Munna Lal Jain and another Vs. Vipin Kumar sharma and others), if 50% of the income is to be added to the income of deceased as future prospects, on such addition, the total income of the deceased comes to Rs.8,35,500/-P.A. and the same is considered as income of the deceased certainly it would meet the ends of justice.
36. The annual income of the deceased is considered as Rs.8,35,500/-P.A. and the multiplier 17 is applied, then the loss of dependency comes to Rs.1,42,03,500/-. Considering the above facts and for the above reason, I deem it just and reasonable to grant for compensation of Rs.1,42,03,500/- under the head of loss of dependency.
37. Further the petitioners are the parents of deceased and as such, they are entitled for compensation of Rs.30,000/- under the head of loss of love and affection and they are also entitled for compensation of Rs.30,000/- under the head of loss of estate.
38. Further the petitioners are entitled for compensation of Rs.30,000/-under the head of transportation of dead body, funeral and obsequies ceremony expenses.
39. The contention of the petitioners is that, they have spent more than Rs.4,50,000/- towards medical expenses of injured Rohith D'Souza and out of that, some amount was paid by paramount health services and remaining amount was paid by them. In support of their contention, the petitioners have relied upon the medical bills and the same are marked as Ex-P-43. On perusal of Ex-P-43-Medical bills, it shows that, the amount of Rs.30,000/-, Rs.2,699/- Rs.47,237/- Rs.450/- and Rs.100/- (Total Rs.80,486/-) appeared in bill at sl.no.1,2 and 4 of Ex-P-43 was personally paid by the petitioners. Considering the above facts and for the above reason, I am of the opinion that, the petitioners are entitled for compensation of Rs.80,000/- under the head of medical expenses.
Considering the above facts and circumstances of the case and for the above reason, I am of the opinion that, the petitioners are entitled for total compensation of Rs.1,43,73,500/- under the following conventional heads.
Compensation heads Compensation amount Towards loss of dependency Rs. 1,42,03,500/- Towards loss of love and affection Rs. 30,000/- Towards transportation of dead body, funeral Rs. 30,000/-
& obsequies ceremony expenses
Towards loss of estate Rs. 30,000/-
Towards medical expenses Rs. 80,000/-
Total Rs. 1,43,73,500/-
40. LIABILITY: During the course of arguments, the
learned counsel for the respondent No.2 vehemently argued that, after the accident, the petitioners have received an amount of Rs.64,98,300/- from Group personal insurance scheme and as such, the said amount has to be deductible from the above mentioned compensation amount entitled by the petitioners. On the other hand, the learned counsel for the petitioners argued that, the said amount is an insurance amount and the same cannot be deductible in the total compensation amount entitled by the petitioners, as the deceased has personally paid the premium to the said insurance.
41. Further on perusal of the evidence of PW-1, it reveals that, admittedly after the death of Rohith D'Souza, the petitioners being the parents of deceased, have received an amount of Rs.64,98,300/- under group personal accident insurance claim.
42. At this stage, I have gone through the Judgment passed by the Hon'ble Supreme Court of India in Civil Appeal No.4216/2008 dt.7-7-2008 arising out of SLP(C) No.21953/2004) (Bhakra Beas Management Board Vs. Smt.Kanta Aggarwal and others) relied by the counsel for the respondent No.2. On going through the said Judgment, the Hon'ble Apex court observed in para No.33 of the Judgment as under:
33. Thus, it would not include that which the claimant receives on account of other forms of deaths, which he would have received even apart from accidental death. Thus, such pecuniary advantage would have no correlation to the accidental death for which compensation is computed. Any amount received for receivable not only on account of accidental death but that which would have come to the claimant even otherwise, could not be construed to be the "pecuniary advantage", liable for deduction. However, where the employer insures his employee, as against injury or death arising out of an accident, any amount received out of such insurance on the happening of such incident may be an amount liable for deduction.
However, out legislature has taken note of such contingency through the proviso of Sec.95. Under it the liability of the insurer is excluded in respect of injury or death, arising out of and in the course of employee.
43. On the other hand, at this stage, I have gone through the citation relied by the counsel for the petitioners reported in 2013 AIR SCW 3258 (Vimal Kanwar and others Vs. Kishore Dan and others), wherein, at para No.19 of the Judgment, the Hon'ble supreme court observed as under:
19. The first issue is "whether Provident Fund, Pension and Insurance receivable by claimants come within the periphery of the Motor Vehicles Act to be termed as "Pecuniary Advantage" liable for deduction."
The aforesaid issue fell for consideration before this Court in (Helen C.Rebello and others Vs. Maharasthra State Road Transport Corporation and another) reported in (1999 1 SCC 90: (AIR 1998 SC 3191). In the said case, this court held that, Provident Fund, Pension, Insurance and similarly any cash, bank balance, shares, fixed deposits, etc. are all a "pecuniary advantage" receivable by the heirs on account of one's death but all these have no correlation with the amount receivable under a statue occasioned only on account of accidental death. Such an amount will not come within the periphery of the Motor Vehicles Act to be termed as "pecuniary advantage" liable for deduction.
Further the Hon'ble Apex Court observed in the same para as under:
The insured (deceased) contributes his own money for which he receives the amount which has no correlation to the compensation computed as against the tort-feasor for his negligence on account of the accident. As aforesaid, the amount receivable as compensation under the Act is on account of the injury or death without making any contribution towards it, then how can fruits of an amount received through contributions of the insured be deducted out of the amount receivable under the Motor Vehicles Act. The amount under this act he receives without any contribution. As we have said, the compensation payable under the Motor Vehicles Act is a statutory while the amount receivable under the Life insurance policy is contractual"
On going through the above said observation, the said observation is aptly applicable to the case on hand and the said Judgment is rendered by larger bench of the Hon'ble Apex court (Hon'ble 3 Judges bench).
44. Further at this stage, I come across a citation of our Hon'ble Supreme Court reported in AIR 1998 SC 3191 (Helen C.Rebello and others Vs. Maharasthra State Road Transport Corporation and another), wherein, the Hon'ble Apex Court observed in last para of the Judgment as under:
"We have no hesitation to conclude that the set of decisions, which applied the principle of no deduction of the life insurance amount should be accepted and the other set, which interpreted to deduct, is to be rejected. For all these consideration we have no hesitation to hold that such High Courts were wrong in deducting the amount paid or payable under the life insurance by giving restricted meaning to the provisions of the Motor Vehicles Act basing mostly on the language of English statutes and not taking into consideration the changed language and intends of the legislature under various provisions of the Motor Vehicles Act, 1 "39. Accordingly, we set aside the impugned judgment dated 9th September, 1985 and restore the judgment of the tribunal dated 29 September, 1980 and hold that the amount received by the claimant on the life insurance of the deceased is not deductible from the compensation computed under the Motor Vehicles Act."
On going through the above observation, the said observation is also aptly applicable to the case on hand and the said observation is helpful to the contention raised by the petitioners. Considering the above facts and for the above reason, I am of the opinion that, the contention raised by the respondent no.2 is not acceptable one. Considering the above facts and circumstances of the case and for the above reason, I am of the opinion that, the petitioners are entitled for the compensation amount as mentioned above.
45. Further on perusal of the contents of petition and contents of objection statement filed by the respondent No.2, it reveals that, the respondent No.1 is the owner and the respondent No.2 is the insurer of the alleged scooter and the policy was in force as on the date of accident. Further as stated above that, the accident has mainly occurred due to rash and negligent riding of the rider of the alleged scooter.
46. The specific contention of the respondent No.2 is that, the rider of the alleged scooter was having driving licence to ride the motorcycle with gear, but the alleged scooter is without gear vehicle and as such, the rider of the alleged scooter was not having valid and effective driving licence to ride the alleged scooter and as such, the respondent no.2 is not liable to indemnifying the respondent No.1.
47. To prove the said fact, the respondent No.2 has relied upon the copy of driving licence produced by RW-1 and the same is marked as Ex-R-1, On perusal of Ex-R-1 it reveals that, the RW-1 i.e. rider of the alleged scooter has obtained the driving licence to drive the LMV-NT vehicle and the same was valid from 20-2-2004 to 19-2-2024. Further on perusal of Ex-R-1 i.e. copy of driving licence produced by the RW-1, it reveals that on 18-1-2008, the RW-1 i.e. the rider of the alleged scooter has obtained the driving licence for riding the motorcycle with gear w.e.f. 18-1-2008.
48. Further to prove the contention of the respondent No.2, he has examined the incharge of ARTO, Jnanabharathi as RW-2, who has stated in his evidence that, on perusal of Ex-R-1 i.e. copy of driving licence produced by the RW-1, it reveals that, RW-1 is having driving licence to ride the motorcycle with gear.
49. Thereafter, the counsel for the petitioners has cross- examined the RW-2 at length. In the cross-examination, the RW-2 has clearly admitted at page No.2 that:
" ¤.Dgï2 JAzÀÄ UÀÄgÀÄw¹zÀ rJ¯ï ¥ÀæwAiÀÄAvÉ UÉÃgï ¸À»vÀ ªÉÆÃmÁgï ¸ÉÊPÀ¯ï ZÀ¯Á¬ÀĸÀĪÀ rJ¯ï EzÀÝ ªÀåQ,Û UÉÃgï gÀ»vÀ ªÁºÀ£ÀªÀ£ÀÄß ZÀ¯Á¬Ä¸À®Ä CºÀð£Éà JAzÀÄ PÉüÀ¯ÁV, ºËzÀÄ, PÁ£ÀƤ£À ¥ÀæPÁgÀ DvÀ£ÀÄÀ CºÀð¤gÀĪÀ£ÉAzÀÄ ¸ÁQë ºÉüÀÄvÁÛgÉ."
On perusal of the above evidence, it clear that, if a person is having driving licence to ride the motorcycle with gear, then, he is having authority to ride the motorcycle without gear.
50. At this stage, I have gone through a citation relied by the counsel for the petitioners reported in ILR 2003 KAR 3511 (United India Ins.Co.Ltd., Vs. Bharamappa Doddabirappa Pujari and another), wherein, the Hon'ble High Court of Karnataka observed in para No.20 of the Judgment as under:
"So, in my view, a person who has a licence to drive motorcycle with gear cannot be permitted to drive a invalid carriage that is to say, a person having a licence to drive a motorcycle with gear can very well drive a motorcycle without gear..........."
On going through the above observation, the observation of the Hon'ble High Court of Karnataka is aptly applicable to the case on hand. Considering the above facts and on perusal of evidence of RW-1 and 2 coupled with Ex-R-1 and 2, I am of the opinion that, the rider of the alleged scooter is having driving licence to ride the alleged scooter as on the date of accident and as such, the owner of the alleged scooter has not violated the policy conditions. For the above reason, I am of the opinion that, the contention of the respondent No.2 is that, the owner of the alleged scooter has violated the policy conditions is not acceptable one.
51. Further as stated above that, the alleged accident has occurred due to rash and negligent riding of the rider of the alleged scooter and as such, both the respondents are jointly and severally liable to pay compensation to the petitioners. However, the respondent No.2 being the insurer of the alleged scooter is liable to pay compensation amount of Rs.1,43,73,500/- with interest @ 9% P.A. from the date of petition till the date of deposit to the petitioners. Accordingly, I answer the issue No.4 in the partly affirmative.
52. ISSUE NO.5: In view of my findings, on issue No.1 to 4, I proceed to pass the following;
ORDER The claim petition filed by the petitioners U/S.166 of M.V.Act is hereby partly allowed with cost.
The petitioners are entitled for compensation of Rs.1,43,73,500/- with interest @ 9% p.a. from the date of petition till the date of deposit.
The respondent No.1 and 2 are jointly and severally liable to pay compensation to the petitioners. However, in view of the policy, the respondent No.2-insurance company is directed to deposit the said compensation amount in this tribunal within 30 days from the date of this order.
Out of the above compensation amount awarded to the petitioners, the petitioner No.1 is entitled for compensation amount of Rs.58,00,000/- and the petitioner No.2 is entitled for compensation amount of Rs.85,73,500/-.
After deposit of above compensation amount, an amount of Rs.20 Lakhs and Rs.25 Lakhs shall be kept in FD, in the name of petitioner No.1 and 2, respectively in any nationalized/scheduled bank of petitioner's choice, for a period of 3 years and remaining amount with accrued interest shall be paid to them through account payee cheques after proper identification.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
(Dictated to the stenographer, transcribed by her, corrected, signed and then pronounced by me in open court on this 28th day of June 2017).
(VEERANNA SOMASEKHARA) III ADDL. SMALL CAUSES JUDGE & XXIX ACMM, BENGALURU.
APPENDIX OF EVIDENCE List of witnesses examined on petitioner's side:
P.W.1. Frank Micheal D'Souza.
P.W.2. A. Socrates P.W.3. Dr. H.M. Gopalappa List of documents exhibited on petitioner's side:
Ex-P1 True copy of FIR with complaint Ex-P2 True copy of letter of investigation officer Ex-P3 True copy of MLC intimation letter Ex-P4 True copy of Panchanama Ex-P5 True copy of sketch Ex-P6 True copy of MVI report Ex-P7 to 10 True copy of Witness statements Ex-P11 True copy of Inquest report Ex-P12 True copy of PM report Ex-P13 True copy of Charge sheet
Ex-P14 to 18 Notarised copy of Voter ID Cards, Passport and Degree certificate Ex-P19 Letter of confirmation of service Ex-P20 Letter Ex-P21 Service certificate Ex-P22 Letter Ex-P23 Computerised bank account extract Ex-P24 to 26 Income tax returns Ex-P27&28 Notarised copy of Driving licence and Pan card Ex-P29 Authorisation letter Ex-P30 ID Card Ex-P31 Letter of appointment Ex-P32 Letter of service confirmation Ex-P33 Salary certificate Ex-P34 to 39 Pay slips Ex-P40 Attendance details Ex-P41 Death summary issued by Ramaiah hospital Ex-P42 Copy of Accident register report Ex-P43 Medical bills Ex-P44 to 47 Inpatient and Outpatient case sheets Ex-P48 & 49 MLC Intimation Ex-P50 CT Scan x-rays Ex-P50(a) CT Scan reports Ex-P51&52 Copy of letters Ex-P53 True copy of Wound certificate List of witnesses examined on respondent's side:
RW-1: Sadiq Basha RW-2: K.C.Jagadish
List of documents exhibited on respondent`s side:
Ex-R-1: Notarized copy of Driving licence book. Ex-R-2: Extract of Driving licence III ADDL.SMALL CAUSES JUDGE & XXIX ACMM.