Bangalore District Court
In Mvc 1. Smt. Thimmamma vs In Managing Director on 20 March, 2015
Before the Motor Accident Claims Tribunal at Bangalore
(SCCH-8)
Present: Shri P.J. Somashekar B.A., LL.B.,
XII Additional Small Causes Judge
and Member, M.A.C.T., Bangalore.
Dated this the 20th day of March 2015
M.V.C.Nos.3361/2014 & 3362/2014
Petitioners in MVC 1. Smt. Thimmamma,
No.3361/2014 W/o Late Mariyappa,
Aged about 48 years,
2. Smt. Girijamma,
W/o Late Nagaraju,
D/o Late Mariyappa,
Aged about 33 years,
3. Kum. Shruthi,
D/o Late Nagaraju,
Aged about 18 years,
4. Kum. Vijayalakshmi,
D/o Late Nagaraju,
Aged about 16 years,
Petitioner No.4 is minor, represented
by her natural guardian mother
Girijamma.
All are R/o Amruthur, Kunigal Taluk,
Tumkur District.
(Sri G.P. Shivaprasad, Advocate)
Petitioner in MVC Sri Prakash,
No.3362/2014 S/o Late Mariyappa @ Venkataiah,
Aged about 30 years,
R/o Amruthur Town & Hobli,
Kunigal Taluk.
(Sri G.P. Shivaprasad, Advocate)
V/s.
2 (SCCH-8) MVC Nos.3361/2014 & 3362/2014
Respondent in Managing Director,
both the cases KSRTC, K.H. Road,
Shanthinagar,
Bangalore.
(Sri Mahadevaiah, Advocate)
COMMON JUDGMENT
These claim petitions filed by the legal heirs of the deceased
Mariyappa in MVC No.3361/2014 and the petitioner who is the
injured in MVC No.3362/2014, against the respondent under
Section 166 of Motor Vehicles Act, 1989, for seeking compensation
of Rs.20,00,000/- and Rs.8,00,000/- respectively for the death of
Mariyappa and the injuries sustained by the Prakash in a road
traffic accident.
2. The brief facts of the claim petitions in MVC
Nos.3361/2014and 3362/2014 are as under:
The petitioners being said to be the legal heirs and financial
dependents of the deceased Mariyappa in MVC No.3361/2014 and
the petitioner in MVC No.3362/2014 in their claim petitions were
alleged that on 11-01-2014 at about 12.30 p.m., the deceased
Mariyappa and the injured in MVC No.3362/2014 were proceeding
in a motor cycle bearing Chassis No.MBLHA10EL80GJ68935 and
Engine No.15397CM3GBG as pillion rider and rider slowly and
cautiously by observing all traffic rules and regulations towards
Kunigal side from Amruthur, when they were reached near
3 (SCCH-8) MVC Nos.3361/2014 & 3362/2014
Bilidevalaya Village on the left side of the NH-75, the driver of the
KSRTC bus bearing No.KA-13-F-2037 came from Kunigal side
towards Yadiyur has drove the same in a rash and negligent
manner, without observing the traffic rules and regulations and
dashed against the motor cycle, as a result they were fell down and
sustained grievous injuries. So, immediately Mariyappa has been
shifted to PHC, Kunigal, later on he was shifted to A.C. Giri
Hospital, Bellur Cross, wherein he took the treatment for 2 to 3
days, later on he was shifted to Victoria Hospital, Bangalore, while
treatment he was succumbed on 07-02-2014 due to the accidental
injuries. So postmortem was conducted and body was handed over
to them and they were shifted the body to their village and
conducted the funeral and obsequies by spending huge amount.
Prior to the accident he was hale and healthy by doing vegetable
business and earning Rs.300/- to Rs.400/- per day and he was
leading his livelihood by maintaining and managing the family. Due
to the untimely death they were put to deep mental shock and
agony and they lost the earning member of the family. The first
petitioner who is none other than the wife of the deceased is not
come out of the death shock of her loving husband.
3. The petitioner in MVC No.3362/2014 has been shifted to
PHC, Kunigal, later on he was shifted to A.C. Giri Hospital, Bellur
Cross, wherein he took the treatment as an inpatient by spending
4 (SCCH-8) MVC Nos.3361/2014 & 3362/2014
huge amount. Prior to the accident he was hale and healthy
working as an electrician and getting monthly income of
Rs.10,000/-, due to the accidental injuries he could not do the
work as before. The accident in question was taken place on the
rash and negligent driving of the KSRTC bus driver. Thereby,
Kunigal Police have registered the case against the KSRTC bus
driver in their police station crime No.15/2014 for the offences
punishable u/s 279, 337, 338 and 304(a) of IPC. The respondent
being the owner alone is liable to pay the compensation and prays
for allow the claim petitions.
4. In response of the notice, the respondent has appeared
through his counsel and filed the written statement in which he
has alleged that the claim petitions filed by the petitioners are not
maintainable either in law or on facts and he has denied the
averments made in column No.1 to 6 and 11 to 14 of the claim
petition and he has admitted the averments made in column No.8,
9, 14(a) to 16 of the claim petition and he has denied that the
driver of the KSRTC bus has drove the same in a rash and
negligent manner and dashed against the two wheeler in which
vehicle the deceased and his son who is the petitioner in MVC
No.3362/2014 were proceeding, as a result they were fell down
and sustained grievous injuries and they were shifted to different
hospitals and the Mariyappa was succumbed due to the accidental
5 (SCCH-8) MVC Nos.3361/2014 & 3362/2014
injuries and the petitioner in MVC No.3362/2014 has took the
treatment as an inpatient by spending huge amount and further
he has denied the age, avocation and income of the deceased and
the petitioner in MVC No.3362/2014 and he has alleged that on
11-01-2014 the KSRTC bus was proceeding from Bangalore to
Hassan driven by its driver slowly and carefully on the left side of
the road by observing all traffic rules and regulations, when the
said bus was reached near Bilidevalaya, the rider of the motor
cycle has ridden the same along with pillion rider with high speed
in a rash and negligent manner, without observing the traffic rules
and regulations came from opposite side in a wrong side and
dashed against from right side corner of the KSRTC bus and they
were fell down on the road, the bus was fully on the left side of the
road, the accident was occurred purely on the part of the rash and
negligent manner of the rider of the motor cycle. So, he is not
liable to pay any compensation and prays for reject the claim
petitions.
5. On the basis of the pleadings of the parties the following
issues are framed in both the cases.
MVC No. 3361/2014
1. Whether the petitioners prove that the deceased
Mariyappa died in a road traffic accident on 11-01-
2014 at about 12.30 p.m., near Bilidevalaya
6 (SCCH-8) MVC Nos.3361/2014 & 3362/2014
Village, on NH-75 road, due to the rash and
negligent driving of the driver of the KSRTC bus
bearing No.KA-13-F-2037?
2.Whether the petitioners are entitled for any
compensation?
3.What Order or Award?
MVC No.3362/2014
1. Whether the petitioner proves that he has
sustained grievous injuries as mentioned in
column No.11, in a road traffic on 11-01-2014 at
about 12.30 p.m., near Bilidevalaya Village, on NH-
75 road, due to the rash and negligent driving of
the driver of the KSRTC bus bearing No.KA-13-F-
2037?
2.Whether the petitioner is entitled for any
compensation?
3.What Order or Award?
6. The learned counsel for the respondent has filed a memo
on 26-02-2014 and prays for clubbing MVC 3362/2014 with MVC
3361/2014. Accordingly the said memo was came to be accepted
and MVC 3362/2014 was clubbed with MVC 3361/2014 as these
claim petitions are arising out of the same accident. So, for the
purpose of recording of common evidence and for disposal of the
cases, these cases are clubbed together.
7 (SCCH-8) MVC Nos.3361/2014 & 3362/2014
7. The petitioners in MVC No.3361/2014 in order to prove
their claim petition, the petitioner No.3 has examined herself as
PW1 and got marked the documents as Ex.P1 to Ex.P17 and they
have examined one witness on their behalf as PW2. The petitioner
in MVC 3362/2014 in order to prove his claim petition has
examined himself as PW1 and got marked the documents as Ex.P1
to Ex.P12 and he has not examined any witnesses on his behalf.
The respondent has examined bus driver as RW1 and not marked
any documents on his behalf.
8. Heard arguments on both side.
9. My findings to the above issues are as under:
Case No. Issue No.1 Issue No.2 Issue No.3
MVC
3361/2014 Partly in the As per the
MVC In the affirmative affirmative final order
3362/2014
REASONS
10. Issue No.1 in both the claim petitions:
The petitioners being said to be the legal heirs of the
deceased Mariyappa in MVC No.3361/2014 and the petitioner in
MVC No.3362/2014 were approached the court on the ground that
on 11-01-2014 at about 12.30 p.m., the deceased Mariyappa and
the injured in MVC No.3362/2014 were proceeding in a motor
8 (SCCH-8) MVC Nos.3361/2014 & 3362/2014
cycle as pillion rider and rider slowly and cautiously by observing
all traffic rules and regulations, the Driver of the KSRTC bus has
drove the same with high speed in a rash and negligent manner
and took the said bus towards extreme right side of the NH-75 and
overtaking another foregoing vehicle which was going towards
Yediyur side and dashed against the motor cycle in which vehicle
the deceased and the injured were proceeding as a pillion rider and
rider, as a result they were fell down and sustained grievous
injuries. So, they were shifted to different hospital for treatment,
but Mariyappa was succumbed due to the accidental injuries.
Thereby, the petitioners in MVC No.3361/2014 being the legal
heirs of the deceased and the petitioner in MVC No.3362/2014
being injured have filed the instant claim petitions against the
respondents.
11. The learned counsel for the respondent has filed the
memo in MVC No.3361/2014, when the case was set down for
further petitioner evidence and when the petitioner was completed
his evidence in MVC No.3362/2014. So, the memo filed by the
learned counsel for the respondent was came to be accepted and
MVC 3362/2014 has been clubbed in MVC 3361/2014. The
petitioners in MVC No.3361/2014 in order to prove the claim
petition, the petitioner No.3 has filed her affidavit as her chief
9 (SCCH-8) MVC Nos.3361/2014 & 3362/2014
examination as PW1 in which she has stated that on 11-01-2014
at about 12.30 p.m., her grand father and his son were proceeding
in a two wheeler towards Kunigal side from Amruthur as a pillion
rider and rider, the rider who is none other than the son of her
grand father, while so when they were reached near Bilidevalaya
Village on the left side of the NH-75 road, the driver of the KSRTC
bus bearing No.KA-13-F-2037 was came from Kunigal side with
high speed in a rash and negligent manner and took the bus
towards extreme right side to overtake the foregoing vehicle which
was going towards Yediyur side and dashed against the motor
cycle in which vehicle her grand father was proceeding as a pillion
rider, as a result rider and pillion rider were fell down and
sustained grievous injuries. So, immediately they were shifted to
PHC, Kunigal, later on they were shifted to A.C. Giri Hospital,
Bellur Cross and again her grand father was shifted to Victoria
Hospital, wherein her grand father was succumbed due to the
accidental injuries. The accident in question was taken place on
the rash and negligent driving of the KSRTC bus driver. Thereby,
Kunigal Police have initially registered the case against the KSRTC
bus driver in their police station crime No.15/2014 for the offences
punishable under Section 279 and 337 of IPC. After the death of
Mariyappa due to the accidental injuries at Victoria Hospital case
was filed against the offending vehicle driver for the offences
10 (SCCH-8) MVC Nos.3361/2014 & 3362/2014
punishable under Section 279, 337, 338 and 304(a) of IPC and
Section 3 R/w 181, 177 of IMV Act. The PW1 in her cross
examination has admitted that the deceased is none other than her
grand father, after the death of her father they were residing with
her grand father and grand mother and the petitioner No.1 is none
other than her grand mother and she has denied that as on the
date of the alleged accident the petitioner No.1 age was more than
40 years and she has admitted that she was not the eye witness to
the accident and she has denied that as on the date of the alleged
accident the rider by name Prakash has ridden the motor cycle
with high speed in a rash and negligent manner and trying to
overtake the foregoing vehicle and dashed against the KSRTC bus,
as a result the accident was occurred on the negligence of the
rider.
12. The petitioners in MVC No.3361/2014 have examined
one witness as PW2 who is said to be the informant on whose
information the case was registered against the bus driver in his
evidence has stated that on 11-01-2014 at about 12.30 p.m., he
was standing by the side of NH-75 road, near Bilidevalaya Circle,
at that time one rider along with pillion rider were proceeding
towards Kunigal side slowly and cautiously, one bus was came
from Kunigal side towards Yediyur with a rash and negligent
11 (SCCH-8) MVC Nos.3361/2014 & 3362/2014
manner and the bus driver has overtake the vehicle which was
foregoing and took the said bus towards right side and dashed
against the bike which was coming on the left side of the road. So
immediately the rider and pillion rider were fell down and came to
know that the rider by name Prakash and the pillion rider by name
Mariyappa. So immediately they were shifted to PHC, Kunigal and
lodged the complaint. The PW2 in his cross examination has
denied that the rider has hit the right front side of the bus and the
rider of the motor cycle in order to overtake the foregoing vehicle
dashed against the KSRTC bus and he has also denied that the
I.O., has charge sheeted against the rider of the motor cycle on the
ground that the accident was occurred on his negligence also and
as on the date of the alleged accident he has suddenly took his
autorickshaw on the middle of the road, so the rider in order to
avoid the accident has dashed against the bus.
13. The PW1 being the injured in MVC No.3362/2014 in his
evidence has stated that on 11-01-2014 at about 12.30 p.m.,
himself and his father were proceeding in a motor cycle, slowly and
cautiously by observing all traffic rules and regulations, the driver
of the KSRTC bus has drove the same with high speed in a rash
and negligent manner and dashed against the motor cycle, as a
12 (SCCH-8) MVC Nos.3361/2014 & 3362/2014
result they were fell down and sustained grievous injuries. So
immediately they were shifted to PHC, Kunigal, wherein they took
the first aid treatment, later on they were shifted to A.C. Giri
Hospital, Bellur Cross and later his father has been shifted to
Victoria Hospital, Bangalore, wherein his father was succumbed
due to the accidental injuries. The accident in question was taken
place on the rash and negligent driving of the KSRTC bus driver.
Thereby, Kunigal Police have registered the case against the
KSRTC bus driver. The PW1 in his cross examination has admitted
that the motor cycle belongs to one Lanco Company and he has
denied that as on the date of the alleged accident he has ridden the
motor cycle with high speed in a rash and negligent manner and
he was trying to overtake the foregoing vehicle and dashed against
the KSRTC bus which was proceeding on the left side of the road
and the accident was occurred on his own negligence.
14. The petitioners in MVC No.3361/2014 in support of their
oral evidence, have produced the documents marked as Ex.P1 to
Ex.P17 and the petitioner in MVC No.3362/2014 in support of his
oral evidence has produced the documents marked as Ex.P1 to
Ex.P12. Ex.P1 is the information filed by one B.N. Praveen Kumar
who is none other than the PW2 in MVC No.3361/2014 in which
13 (SCCH-8) MVC Nos.3361/2014 & 3362/2014
he has stated that on 11-01-2014 at about 12.30 p.m., when he
was standing near by circle, the rider of the motor cycle was
proceeding along with pillion rider on NH-48 on the left side of the
road slowly and cautiously, one KSRTC bus was came from
Kunigal proceeding towards Yediyur side with high speed in a rash
and negligent manner and the bus driver has trying to overtake the
foregoing bus and took the bus towards right side and hit the
motor cycle which was proceeding on the left side of the road. So,
immediately he was rushed to the spot and came to know that the
rider and pillion rider were sustained the injuries and immediately
they were shifted to PHC, Kunigal as per the advice of the doctor,
they were shifted to A.C. Giri Hospital, Bellur Cross. So based on
the information the Kunigal Police have registered the case against
the driver of the KSRTC bus in their police station Crime
No.15/2014 for the offences punishable under Section 279 and
337 of IPC. The learned counsel for the respondent has cross
examined the PW1 and PW2 in MVC No.3361/2014 and the PW1
in MVC No.3362/2014, but nothing is elicited to disbelieve their
evidence. It is an admitted fact that the PW2 in MVC
No.3361/2014 and the PW1 in MVC No.3362/2014 are the eye
witnesses, as the PW1 in MVC No.3362/2014 is the rider and son
of the deceased Mariyappa in their evidence they have clearly
stated that the driver of the KSRTC bus has trying to overtake the
14 (SCCH-8) MVC Nos.3361/2014 & 3362/2014
foregoing bus and took the said bus towards right side of the road
and dashed against the motor cycle which was coming on the left
side of the road, as a result the accident was occurred. Though,
the learned counsel for the respondent has suggested the PW1 in
MVC No.3362/2014 who is the rider that the accident in question
was taken place on his own negligence, as he has overtake the
vehicle which was foregoing vehicle and dashed against the KSRTC
bus which was coming from opposite direction for which he has
denied the same. Even the learned counsel for the respondent has
suggested the PW2 in MVC No.3361/2014 that the accident in
question was taken place on the negligence of the rider for which
also he has denied the same. If at all the accident was occurred on
the rash and negligent riding of the rider of the motor cycle,
nothing is prevented either the driver of the KSRTC bus nor the
respondent to lodge the complaint or challenge the final report filed
against the offending vehicle driver, but the reasons best known to
the driver of the offending vehicle nor the respondent have not
challenged the complaint nor the charge sheet filed by the I.O. In
the absence of the materials on record, it is clear that the Ex.P1
and Ex.P2 marked in MVC No.3361/2014 are remained
unchallenged. Ex.P10 and Ex.P11 are the panchanama and sketch
drawn by the I.O., clearly reflects that the KSRTC bus was
proceeding towards Yediyur side from Kunigal with high speed in a
15 (SCCH-8) MVC Nos.3361/2014 & 3362/2014
rash and negligent manner and overtake the vehicle which was
foregoing and dashed against the motor cycle which was coming on
the left side of the road. If the driver of the bus was not taken the
bus towards right side, he would have avoided the accident, but
the reasons best known to him has took the said bus towards right
side in which side the rider and pillion rider were coming on the
left side of the road, as a result the accident was took place and
they were fell down and sustained injuries and Mariyappa was
succumbed due to the accidental injuries at Victoria Hospital. So
on sole negligence of the KSRTC bus driver, the accident was
occurred. Ex.P10 and Ex.P11 corroborate the contents of the claim
petition and the evidence of the PW2 in MVC No.3361/2014 and
the PW1 in MVC No.3362/2014. Ex.P12 is the motor vehicles
accident report clearly reflects that the front right side corner
shape was pressed on the offending vehicle. Admittedly the Ex.P11
is the sketch prepared by the I.O., clearly reflects that the pillion
rider and rider were came from Yediyur side towards Bangalore
side and the bus was proceeding from Kunigal towards Yediyur on
the left side of the road, but suddenly the bus driver has took the
bus towards right side, that is the reason why, the accident was
occurred and front right side corner shape has been pressed. So
Ex.P12 clearly reflects that the accident in question was taken
place on the rash and negligent driving of the KSRTC bus driver.
16 (SCCH-8) MVC Nos.3361/2014 & 3362/2014
15. The learned counsel for the respondent while canvassing
his arguments has much argued that there is a contributory
negligence on the part of the rider of the motor cycle on the ground
that as on the date of the alleged accident the rider was not
holding valid and effective driving license to ride the same and the
motor cycle was not registered. Now, the question arises whether
non holding of the driving license and non registration are the
ground to fix the contributory negligence on the part of the rider of
the motor cycle, since there is no materials on record to show that
the rider has no knowledge about the riding of the vehicle on his
own negligence the accident was occurred and he has no balance
to ride the vehicle along with pillion rider and lost the control over
the vehicle, if that is so, the matter would have been different, but
nothing is elicited from the mouth of the PW1 in MVC
No.3362/2014 nor in the mouth of PW2 in MVC No.3361/2014 to
fix the contributory negligence on the part of the rider of the motor
cycle. In the absence of the materials on record, it is very difficult
to fix the contributory negligence nor composite negligence on the
part of the rider of the motor cycle and moreover the PW2 in MVC
No.3361/2014 has clearly stated that the rider of the motor cycle
has ridden the same slowly and cautiously on the left side of the
road and the driver of the bus has overtake the foregoing vehicle
and took the bus towards right side and dashed against the motor
17 (SCCH-8) MVC Nos.3361/2014 & 3362/2014
cycle, that itself is clear that there was no contributory negligence
nor composite negligence on the part of the rider of the motor
cycle. Therefore, the arguments advanced by the learned counsel
for the respondent on this aspect holds no water. Ex.P16 is the
medical bills clearly reflects that prior to the death of Mariyappa
has took the treatment in a different hospital. Ex.P7 and Ex.P8 are
the inquest mahazar and postmortem report clearly reflects that
the Mariyappa has succumbed due to the accidental injuries.
Ex.P6 is the wound certificate clearly reflects that the petitioner in
MVC No.3362/2014 has sustained the injuries in a road traffic
accident said to have been taken place on 11-01-2014 and Ex.P12
clearly reflects that he took the treatment in connection of the
injuries sustained by him in a road traffic accident. So, the
documents marked as Ex.P1 to Ex.P17 in MVC No.3361/2014 and
the documents marked as Ex.P1 to Ex.P12 in MVC No.3362/2014
are coupled with the oral evidence of PW1 and PW2 in MVC
No.3361/2014 and the PW1 in MVC No.3362/2014. Though, the
respondent has examined his bus driver as RW1. The RW1 in his
cross examination has categorically admitted that the I.O., after
conducting the investigation has charge sheeted against him on
the ground that the accident was occurred on his negligence and
he has also admitted that he has not filed any complaint against
the higher authority of the I.O., on the ground that he has filed the
18 (SCCH-8) MVC Nos.3361/2014 & 3362/2014
false charge sheet against him and he has also admitted that he
has not challenged the charge sheet before the higher court. So,
his evidence will not help the respondent to prove his defence. On
the other hand the petitioners have proved their case through oral
and documentary evidence that the accident in question was taken
place on the rash and negligent driving of the offending vehicle
driver. Hence, the issue No.1 in both the claim petitions is
answered as affirmative.
16. Issue No.2 in MVC 3361/2014:
The PW1 being said to be the grand daughter of the deceased
in her evidence has stated that prior to the accident the deceased
was hale and healthy doing vegetable business and earning
Rs.300/- to Rs.400/- per day and he has contributing the entire
income to the family, as they were depending on the income of the
deceased and they lost the earning member of the family. The first
petitioner who is the wife of the deceased not come out of the death
shock of her loving husband and they were suffering deep mental
shock and agony. The PW1 in her cross examination has admitted
that her grand father having 3 children namely Prakash,
Girijamma and Srinivas and they were alive and one Prakash who
is the petitioner in MVC No.3362/2012 and she has also admitted
that Prakash has also residing with them and her grand father was
19 (SCCH-8) MVC Nos.3361/2014 & 3362/2014
succumbed, when he was taking the treatment at Victoria
Hospital. The PW1 in MVC No.3362/2014 in his cross examination
has denied that his sister and her children were residing at
Bhadravathi. So one thing is clear that the first petitioner is none
other than the wife of the deceased and second petitioner is none
other than the married daughter of the deceased and the petitioner
No.3 and 4 who are none other than the grand children of the
deceased. Ex.P14 is the Aadhaar card which belongs to the third
petitioner in which her address has been shown as Amruthur and
the petitioners in their claim petition were also stated that their
address as Amruthur, Kunigal Taluk, Tumkur District. Now, the
question arises whether the petitioner No.1 to 4 are the financial
dependents and the legal heirs of the deceased? Whether they are
eligible to file the instant claim petition against the respondent. So,
this court drawn its attention on Section 166 of M.V. Act reads
like thus;
Application for compensation. - (1) An application
for compensation arising out of an accident of the nature
specified in sub-section (1) of section 165 may be made -
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all
or any of the legal representatives of the deceased;
or
20 (SCCH-8) MVC Nos.3361/2014 & 3362/2014
(d) by any agent duly authorised by the person injured or
all or any of the legal representatives of the deceased,
as the case may be:
Provided that where all the legal representatives of
the deceased have not joined in any such application for
compensation, the application shall be made on behalf of
or for the benefit of all the legal representatives of the
deceased and the legal representatives who have not so
joined, shall be impleaded as respondents to the
application.
17. The above provision is clear that the application for
compensation arising out of an accident of the nature specified in
sub-section (1) of section 165 may be made by all or any of the
legal representatives of the deceased or by any agent duly
authorised by the person injured or all or any of the legal
representatives of the deceased, as the case may be provided that
where all the legal representatives of the deceased have not joined
in any such application for compensation, shall be impleaded as
respondents. So one thing is clear that the legal representative of
the deceased can file a claim petition for seeking compensation of
the deceased. Now, the question arises whether the petitioner No.1
to 4 are the legal representatives of the deceased Mariyappa or
not? So, this court drawn its attention on Section 2(11) of CPC
reads like thus;
21 (SCCH-8) MVC Nos.3361/2014 & 3362/2014
"Legal representative" means a person who in law
represents the estate of a deceased person and includes
any person who intermeddles with the estate of the
deceased and where a party sues or is sued in a
representative character the person on whom the estate
devolves on the death of the party so suing or sued.
18. The above provision is clear that a person who in law
represents the estate of a deceased person and includes any
person who intermeddles with the estate of the deceased and
where a party sues or is sued in a representative character the
person on whom the estate devolves on the death of the party so
suing or sued. In the instant case admittedly the first petitioner is
the wife and second petitioner is the daughter of the deceased and
the third and fourth petitioner are the grand children of the
deceased. Therefore, by virtue of the above provision, it is clear
that the first petitioner is none other than the wife, she is the
financial dependent and legal representative of the deceased
Mariyappa. Admittedly, the married daughter is not the financial
dependent of the deceased, but in the instant case, the second
petitioner though she has married daughter, but she is the widow
and residing with her father along with her children, as the PW1
in MVC No.3361/2014 has clearly stated that her father has no
more, thereby herself and her mother and the petitioner No.4 were
residing with her grand father and her grand father was doing
22 (SCCH-8) MVC Nos.3361/2014 & 3362/2014
vegetable business and he was contributing the entire income to
the family maintenance and it is not the case of the respondent
that the second petitioner is not the financial dependent of the
deceased. Therefore, the petitioner No.1 and 2 are the financial
dependents and legal representatives of the deceased. Though, the
petitioner No.3 and 4 were residing with their grand father, but
they are not the financial dependents nor the legal representatives
of the deceased, as the PW1 in her cross examination has
admitted that 2 sons of the deceased were also alive and they are
married. Therefore, the petitioner No.1 and 2 are only the financial
dependents and legal representatives of the deceased. Therefore,
the petitioner No.3 and 4 are not entitled any compensation.
19. The PW1 in her evidence has clearly stated that prior to
the accident the deceased was hale and healthy doing vegetable
business by getting Rs.300/- to Rs.400/- per day, but the reasons
best known to the petitioners have not placed any oral and
documentary evidence to show that prior to the accident the
deceased was doing vegetable business by getting Rs.300/- to
Rs.400/- per day. In the absence of the materials on record, it is
very difficult to believe the income of the deceased as shown in the
claim petition. So, considering the present life condition and the
age of the deceased, it is just and necessary to consider monthly
notional income of Rs.6,000/- it will meet the ends of justice.
23 (SCCH-8) MVC Nos.3361/2014 & 3362/2014
Ex.P7 and Ex.P8 are the inquest panchanama and postmortem
report clearly reflects that as on the date of the alleged accident
the deceased was aged about 50 years. The petitioners in their
claim petition were shown the age of the deceased as 50 years as
on the date of the alleged accident. Therefore, the deceased age is
taken into consideration as 50 years as on the date of the alleged
accident. The deceased monthly income is already taken into
consideration as Rs.6,000/-. So, the deceased yearly income
comes to Rs.72,000/-. It is an admitted fact that the petitioner
No.1 and 2 are only the financial dependents of the deceased and
the legal representatives of the deceased. So by virtue of decision
reported in 2009 ACJ 1298 in between Sarla Verma and others
Vs. Delhi Transport Corporation and another, the personal
deduction of the deceased where the member of the dependant
family members 2 to 3, the personal and living expenses of the
deceased should be deducted 1/3rd. So, the personal and living
expenses of the deceased should be deducted 1/3rd out of the
yearly income of Rs.72,000/- it comes to Rs.48,000/-. As per
Sarlaverma Vs. Delhi Transportation Corporation Ltd., the
multiplier applicable to the deceased is 13. So,
Rs.48,000X13=Rs.6,24,000/- towards loss of dependency. So,
the petitioner No.1 and 2 are entitled for the said amount towards
loss of dependency.
24 (SCCH-8) MVC Nos.3361/2014 & 3362/2014
20. The petitioner No.1 is none other than the wife of the
deceased, so Rs.10,000/- is awarded towards loss of consortium
and the petitioner Nos.1 and 2 are none other than the wife and
daughter of the deceased, so Rs.20,000/- is awarded towards loss
of love and affection. Rs.10,000/- is awarded towards loss of
estate and Rs.20,000/- is granted towards transportation of dead
body and funeral expenses.
21. Ex.P16 is the medical bills clearly reflects that prior to
the death of the deceased has taken the treatment by spending an
amount of Rs.40,998/-. Though, the learned counsel for the
respondent has disputed the medical bills produced by the
petitioners, but nothing is placed on record to show that the
medical bills produced by the petitioners are created nor fabricated
documents in order to get the compensation. In the absence of the
materials on record, it is clear that the deceased Mariyappa has
sustained grievous injuries and took the treatment by spending an
amount of Rs.40,998/- prior to his death due to the accidental
injuries. So, Rs.40,998/- is granted to the petitioner No.1 and 2.
22. Thus the total award stands as follows:
1. Loss of dependency Rs. 6,24,000-00
2. Loss of consortium Rs. 10,000-00
3. Loss of love and affection Rs. 20,000-00
4. Loss of estate Rs. 10,000-00
25 (SCCH-8) MVC Nos.3361/2014 & 3362/2014
5. Transportation of dead body and Rs. 20,000-00
funeral expenses
6. Medical expenses Rs. 40,998-00
Total Rs. 7,24,998-00
23. Issue No.2 in MVC 3362/2014:
The PW2 being injured in MVC No.3362/2014 in his
evidence has clearly stated that on 11-01-2014 at about 12.30
p.m., he was proceeding in a motor cycle along with his father, the
driver of the KSRTC bus has drove the same in a rash and
negligent manner and dashed against the motor cycle, as a result
he was fell down and sustained the following injuries;
1) Tenderness present over the right shoulder region.
2) Abrasion present over the right knee joint.
3) Swelling present over the right dorsum of wrist joint.
24. Therefore, he was shifted to PHC, Kunigal, wherein he
took the first aid treatment, later on he was shifted to A.C. Giri
Hospital, wherein he took the treatment as an inpatient by
spending huge amount. Prior to the accident he was hale and
healthy working as a electrician and getting monthly income of
Rs.10,000/-, due to the accidental injuries he could not do the
work as before, as he is suffering with both physical and mental
pain and agony with permanent loss of income, till today he is
26 (SCCH-8) MVC Nos.3361/2014 & 3362/2014
facing difficulty to walk and stand nor bear more weight on his
both right upper arms. The PW1 in his cross examination has
denied that he has sustained only simple injuries and he has
denied that he has not stated in his affidavit about the right hand
fracture and he has created the medical bills and placed before the
court and he has not facing any problems due to the accidental
injuries, but he has admitted that he has not produced any
documents to show that he was working as an electrician and
getting monthly income of Rs.10,000/-.
25. It is an admitted fact that the petitioner being the injured
in his evidence has stated that he has sustained grievous injuries
and took the treatment as an inpatient, but the reasons best
known to him has not examined the treated doctor nor placed any
materials on record to show that he has sustained any disability
due to the accidental injuries. However, he has produced the
wound certificate marked as Ex.P6 clearly reflects that the
petitioner has sustained the following injuries;
1) Tenderness present over the right shoulder region.
2) Abrasion present over the right knee joint.
3) Swelling present over the right dorsum of wrist joint.
26. The above said injury No.1 and 2 are simple in nature
and injury No.3 is grievous in nature. Ex.P12 is the medical bills
27 (SCCH-8) MVC Nos.3361/2014 & 3362/2014
clearly reflects that the petitioner has took the treatment in
connection of the injuries sustained by him in a road traffic
accident said to have been taken place on 11-01-2014. The PW1 in
his evidence has stated that he has sustained grievous injuries and
took the treatment as an inpatient, but he has not produced the
discharge summary to show how many days he took the treatment
as an inpatient. In the absence of the materials on record, it is
clear that he has spent Rs.1,374/- for his treatment and he has
sustained only grievous injury and 2 simple injuries. So,
considering the injury sustained by the petitioner and oral and
documentary evidence on record, if global compensation of
Rs.25,000/- is granted it will meet the ends of justice. So,
Rs.25,000/- is granted for just compensation to the petitioner.
27. The respondent in his written statement has alleged that
the accident in question was taken place on the rash and negligent
riding of the rider of the motor cycle, but the reasons best known
to the respondent has not placed any materials to substantiate his
defence. Though, the respondent has examined the driver of the
bus, but his evidence will not help the respondent to prove his
defence, as the PW2 in MVC No.3361/2014 in his evidence has
clearly stated about the manner of accident. Though, the learned
counsel for the respondent while canvassing his arguments has
28 (SCCH-8) MVC Nos.3361/2014 & 3362/2014
requested the court to fix the contributory negligence on the part of
the rider of the motor cycle on the ground that he was not holding
valid and effective driving licence and the motor cycle was not
registered, but nothing is elicited from the mouth of the PW's that
the rider has no knowledge about the riding of the motor cycle and
he has lost the control, as he was proceeding along with rider, that
is the reason why the accident was occurred, if that is so the
matter would have been different, but nothing is elicited to prove
contributory negligence on the part of the rider of the motor cycle.
In the absence of the materials on record, it is very difficult to
believe that there is a contributory negligence on the part of the
rider of the motor cycle. Admittedly, the driver of the offending
vehicle is the servant of the respondent. Therefore, the vicarious
liability is on the respondent to pay the compensation. So, the
respondent alone is liable to pay the compensation to the
petitioner's with interest at the rate 6% p.a. from the date of
petitions till its realization. In the result, the issue No.2 in both the
claim petitions is answered as partly in the affirmative.
28. Issue No.3 in both the claim petitions.
In view of my finding on issue Nos.1 and 2 in both claim
petitions, I proceed to pass the following:
29 (SCCH-8) MVC Nos.3361/2014 & 3362/2014
ORDER
The claim petitions filed by the petitioners in MVC Nos.3361/2014 and 3362/2014 u/s 166 of the M.V. Act, as against the respondent are allowed in part with costs.
The compensation in both the claim petitions has been awarded as mentioned here under:
Compensation Sl. MVC Awarded No. Number (in Rupees) 1 3361/2014 7,24,998-00 2 3362/2014 25,000-00 Interest is granted at the rate of 6% per annum from the date of the petitions till the date of payment/bank deposit, in both the claim petitions.
In both the claim petitions, the respondent being the owner is directed to deposit the entire compensation amount with interest at the rate of 6% p.a. from the date of the claim petitions till its realisation within a period of 30 days from the date of this order.
On deposit of the compensation amount together with interest in MVC No.3361/2014, 60% is allotted to the share of petitioner No.1 and 40% is allotted to the share of petitioner No.2 by way of apportionment of compensation amount. 30 (SCCH-8) MVC Nos.3361/2014 & 3362/2014 Out of the share amount of petitioner Nos.1 and 2 in MVC No.3361/2014, 40% of the amount shall be deposited in their name in any nationalised or scheduled bank of their choice for a period of three years and the remaining 60% shall be released to them by means of a/c payee cheque on proper identification. However, they are at liberty to withdraw the periodical interest accrued on their deposit amount from time to time.
On deposit of the compensation amount together with interest in MVC No.3362/2014, the entire amount shall be released to him by means of a/c payee cheque on proper identification.
Advocate fee is fixed in each of the petition at Rs.500/-. The original judgment copy shall be kept in MVC No.3361/2014 and copy of the same shall be kept in MVC No.3362/2014.
Draw award accordingly.
Dictated to the stenographer, transcript thereof, corrected by me and then pronounced in the open court on this 20th day of March 2015.
(P.J.Somashekar) XII Addl. Small Causes Judge, Member-M.A.C.T., Bangalore.
31 (SCCH-8) MVC Nos.3361/2014 & 3362/2014 ANNEXURE List of the witnesses examined on behalf of petitioners in MVC No.3361/2014:
PW1 Smt. Shruthi PW2 Sri B.N. Praveen Kumar List of the witnesses examined on behalf of petitioners in MVC No.3362/2014: PW1 Sri Prakash
List of the documents exhibited on behalf of petitioners in MVC No.3361/2014:
Ex.P1 True copy of Complaint
Ex.P2 True copy of FIR
Ex.P3 True copy of Panchanama
Ex.P4 True copy of Panchanama
Ex.P5 True copy of IMV report
Ex.P6 True copy of request letter of the Sub Inspector of
Police
Ex.P7 True copy of Inquest Mahazar
Ex.P8 True copy of Post Mortem Report
Ex.P9 True copy of Panchanama
Ex.P10 True copy of Panchanama
Ex.P11 True copy of Spot Sketch
Ex.P12 True copy of IMV report
Ex.P13 True copy of Charge Sheet
Ex.P14 Notarised attested true copy of Aadhaar card
Ex.P15 Document relating to NIMHANS Hospital
Ex.P16 52 Medical bills amounting to Rs.40,998/-
32 (SCCH-8) MVC Nos.3361/2014 & 3362/2014
Ex.P17 28 Medical prescriptions
List of the witnesses examined on behalf of petitioners in MVC
No.3362/2014:
PW1 Sri Prakash
List of the documents exhibited on behalf of petitioners in MVC No.3362/2014:
Ex.P1 True copy of Complaint Ex.P2 True copy of FIR Ex.P3 True copy of Panchanama Ex.P4 True copy of Panchanama Ex.P5 True copy of IMV report Ex.P6 True copy of Wound certificate Ex.P7 True copy of Panchanama Ex.P8 True copy of Panchanama Ex.P9 True copy of Spot Sketch Ex.P10 True copy of IMV report Ex.P11 True copy of Final report Ex.P12 4 Medical bills amounting to Rs.1,374/-
List of the witnesses examined on behalf of respondents:
RW1 Sri Kantharaju List of the documents marked on behalf of respondents:
Nil (P.J.Somashekar), XII Addl. Judge-Member, MACT, Bangalore.