Bangalore District Court
Smt. Lakshmidevamma vs Shri Srikanta Murthy on 3 January, 2020
IN THE COURT OF III ADDL. JUDGE AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, BENGALURU. (SCCH-18)
Dated: This the 3rd day of January 2020
Present: SRI.MAHANTESH S.DARGAD
B.Sc., LL.B.,
III ADDL. JUDGE &
MEMBER, MACT
COURT OF SMALL CAUSES,
BANGALORE.
M.V.C.No.7029/2018
Petitioners 1.Smt. Lakshmidevamma,
Wife of Late Venkatashyamappa
Aged about 80 years,
2. Smt.Akkayamma,
Wife of Late Venkatesh V.
Aged about 40 years,
3.Shri Anuraj N.V.,
Son of Late Venkatesh V.,
Aged about 23 years,
4. Kum Meghavana N.v.,
Daughter of Late Venkatesh V.,
Aged about 20 years,
The petitioner Nos. 1 to 4 are residing at
No.34, 2nd Main Road,
Near Sharada Arts,
2 SCCH-18 MVC 7029/2018
Yelahanka New Town,
Jakkur, Bengaluru North,
Bengaluru-560 064.
(By Pleader Shri G.Chandrashekaraiah)
V/s
Respondents 1.Shri Srikanta Murthy,
Son of Late Shivanna,
Aged about 54 years,
Residing at Near SMJV School, Rojipura
Doddaballapura Town,
Bengaluru rural District.
(Owner of bus No.KA-25-C-5064)
(By Pleader Smt. Anith H.C.)
2.Regional Office,
General Manager,
Chomanandalam M.S. General Insurance
Company Limited Unit, No.4, 9th floor
(Level-06),
"Golden Hiehgts" complex,
59th C Cross, Industrial Suburb,
Rjajinagar 4th M. Block,
Bengaluru-560 010.
Also at No.1290, Triveni Main Road,
Subedarpalya, Mathikere,
Bengaluru-560 022.
(By Pleader Shri Kiran Poojar)
3. Shri Ranganath,
Son of Narayana,
Aged about 45 years,
3 SCCH-18 MVC 7029/2018
Residing at Muktambika Lay out,
Doddaballapura Town,
Bengaluru Rural District,
The driver of the offending vehicle Bus
No.KA-25-C-5064,
Holding a driving licence vide driving
licence No. KA-04-19910002894.
Policy No.3373/00444138/000/02 valid
from 5.1.2018 to 4.1.2019.
(By Pleader Smt. Anith H.C.)
J U D G M E N T
The petitioners have filed this claim petition against the respondent U/S. 166 of M.V. Act for seeking compensation of Rs.2,00,10,000/- for the death of Venaktesh V., son of Late Venkatashyamappa in a road traffic accident.
2. The brief contents of petition are as under:
On 20.5.2018 at about 8.00 p.m. Venaktesh was proceeding in a motorcycle bearing NO.KA-50-J-5702 from Doddaballapur Towards Yelahanka slowly, cautiously by observing all the traffic rules and regulations, at that time, a private bus bearing No.KA- 4 SCCH-18 MVC 7029/2018 25-C-5064 driven by its driver with high speed in a rash and negligent manner so as to endanger human life and safety of others dashed against the motor cycle on its back. Due to the impact, rider of the motorcycle fell down towards right side and then the back wheel of the bus ran over Venkatesh, as a result, he succumbed to the injuries on the spot.
3. The contention of the petitioners is that, deceased Venkatesh V. was hale and healthy at the time of accident, aged about 45 years, working as a Manager/Supervisor in Sri Suraksha Enterprises (Gas Bunk) (LPG) and also working as General Mechanic in Rajarajeshwari Cleaning and floor mill and getting an income of Rs.54,000/- per month and he was the only bread earner in the family and entire family is depending upon the income of the deceased. Due to sudden demise of Venaktesh V. petitioners have suffered a lot and lost their bread earner. The accident occurred due to rash and negligent driving of the driver of the private bus 5 SCCH-18 MVC 7029/2018 bearing Reg.No.KA-25-C-5064 and as such, the respondents are jointly and severally liable to pay compensation to the petitioners. Contending the above facts, they pray for grant of compensation with interest and cost.
4. In response to the petition notice, the respondents have appeared before the court through their counsel and inspite of sufficient opportunities given to the respondent No.3 has not filed his written statement, so the written statement of respondent No.3 is taken as not filed. The respondent Nos. 1 & 2 have filed their written statement.
5. The brief contents of written statement of respondent No.1 are as under:
The respondent No.2 has contended that the petition filed by the petitioner is not maintainable either in law or on facts. Further contended that the accident has not occurred due to the negligence of the drier of the private bus. Further contended that the bus was insured with the respondent No.2 and on the date of 6 SCCH-18 MVC 7029/2018 accident the policy was in force. The driver of the bus had valid licence to drive the said bus. Further, this respondent has denied the age, occupation and income of the deceased and dependency of the petitioners upon the income of deceased and relationship of the petitioners with the deceased. Contending the above facts, he prays to dismiss the petition with cost.
6. The brief contents of written statement of respondent No.1 are as under:
The respondent No.2 has contended that the petition filed by the petitioner is not maintainable either in law or on facts. Further admitted about the issuance of policy in respect of vehicle bearing No.KA-25-C-5064 and its validity. Further contended that neither the owner of the vehicle nor the jurisdictional police have complied mandatory provision u/s 134(c) and S. 158(6) of the M.V. Act in furnishing the better particulars. Further accident occurred due to the negligence of the deceased, as he was not wearing ISI certified helmet and entirely responsible for the accident and he 7 SCCH-18 MVC 7029/2018 was sole architect of the said alleged accident. Further contended that the driver of the bus was not holding valid and effective driving license to drive the said vehicle. Further, this respondent has denied the age, occupation and income of the deceased and dependency of the petitioners upon the income of deceased and relationship of the petitioners with the deceased. Further contended that the compensation claimed by the petitioner is highly excessive, exorbitant and without any basis. Contending the above facts, he prays to dismiss the petition with cost.
7. On the basis of above pleadings, the following issues were framed:
1. Whether the petitioners prove that on Shri Venkatesh V., Son of Late Venkatashyamappa died due to the injuries sustained by him in a motor vehicle accident that was taken place on 20.5.2018 at about 8.00 P.M. near Rajanukunte Bus stop on Doddaballapura-Bengaluru road, Nelamangala, Bengaluru involving private bus bearing No.KA-25-
C-5064 belonging to respondents ?
8 SCCH-18 MVC 7029/2018
2. Whether the petitioners prove that the accident has mainly occurred due to rash and negligent driving of the driver of the said vehicle?
3. Whether the petitioners prove that, they are the only legal heirs and dependants of deceased?
4. Whether the petitioners are entitled for compensation as prayed? If so, at what rate from whom?
5. What order or award?
8. In order to prove the case, the petitioner No.3 is examined as PW1 and got marked the documents at Ex.P1 to Ex.P19, employer of the deceased is examined as PW2 and got marked the documents at Ex.P20 to Ex.P22.
9. In order to disprove the contention of the petitioners, the respondent No.2 has examined its Legal Executive as RW1 and got marked the documents at Ex.R1 & Ex.R2.
9 SCCH-18 MVC 7029/2018
10. The learned counsel for the petitioner has filed the written arguments and heard arguments of the learned counsel for the respondents.
11. My findings to the above issues are as under:
Issue No.1: In the Affirmative Issue No. 2: In the Affirmative Issue No.3: In Partly in Affirmative Issue No.4: Partly affirmative Issue No.5: As per final order for the following:
R E A S O N S
12. Issue No.1 & 2 : These issues are interconnected with each other, hence in order to avoid the repetition of facts, these issues 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 PW1 & PW2. Further contended that the petitioners have proved their case as contended in the petition by 10 SCCH-18 MVC 7029/2018 producing oral and documentary evidence. Accordingly, they pray to allow the petition.
14. The counsel for the respondent No.2 has argued that the deceased himself was solely responsible for the accident, as he was not wearing ISI certified helmet. Further argued that petitioners have failed to prove the rash and negligent act of offending vehicle driver by producing proper documents. Further argued that the petitioner himself is the tort feasor and rode the said vehicle without valid driving license. Therefore, prays to dismiss the claim petition.
15. At this juncture respondent No.2 has relied following decisions reported in
1) (2005) 6 Supreme Court Cases 172 in case of National insurance Co. Ltd., Vs. Prembai Patel and others 11 SCCH-18 MVC 7029/2018
2) 2018 Kant M.A.C. 244 (Kant) in case of Chand @ Chand Pasha Vs. The Karnataka State Road Transport Corporation
3)2012 AIR SCW 2241 in case of Surinder Kumar Arora & Another Vs. Dr.Manoj Bisla & Others
16. On rival contention urged by both the counsel, I, intend to discuss the merits of the case.
17. On perusal of the evidence available on record, it reveals that, to prove the case, the petitioner No.3 has examined as P.W.1 and another witness is examined as PW2. Further in support of their case, petitioners have produced the documents and the same are marked as Ex.P1 to Ex.P22. Thereafter the counsel for the respondent No.1 has cross-examined the PW1 at length, but nothing has been elicited to believe the rash and negligent act of the petitioner.
12 SCCH-18 MVC 7029/2018
18. Further to prove the rash and negligent driving of the driver of the Private bus bearing No.KA-25-C-5064, petitioner has produced the prosecution papers same are marked the as Ex.P1 to Ex.P7 i.e., FIR with complaint, spot mahazar, rough sketch, IMV report, inquest report, P.M.report and charge sheet. On perusal of Ex.P1 & Ex.P7, it reveals that Doddaballapura police have registered case against the driver of the Private bus bearing NO.KA-25-C-5064 in CR.141/2018 and after completion of investigation, the I.O. has filed the charge sheet as against the driver of the Private bus vehicle for the offences punishable u/s 279 and 304(A) of IPC.
19. Further to prove the defence the respondent No.2 has examined its legal manager as RW1 and got marked the documents at Ex.R1 & Ex.R2. But his evidence will not help the respondent No.2 to prove its defence. Moreover, the respondent No.2 has not challenged the charge sheet filed against the driver of the car. 13 SCCH-18 MVC 7029/2018 So, the citations relied by the learned counsel for the respondent No.2 has not aptly applicable to the facts of this case on hand.
20. Considering the above, facts and circumstances of the case and on perusal of evidence of PW1 & PW2 coupled with documents and for the above, I am of the opinion that the petitioner has proved that the accident occurred due to the rash and negligent driving of the driver of the Private bus vehicle bearing No.KA-25-C-5064 as contended in the petition by producing oral and documentary evidence.
21. Further on perusal of Ex.P5 and Ex.P6 Inquest report and P.M. report reveals that, deceased Venkatesh has sustained grievous injuries in the accident and succumbed to the injuries on the spot.
22. In addenda of this, in a claim for compensation U/S.166 of MV Act, 1988, the claimant has to prove the incident only on preponderance of probabilities and the standard of proof beyond 14 SCCH-18 MVC 7029/2018 reasonable doubt is not required as held by Hon'ble Apex Court in the decision reported in 2011 SAR (Civil) 319 (Kusum and others Vs. Satbir and others).
23. Looking to the oral evidence of PW1 and the documents placed before the court, I am of the opinion that the accident occurred due to the rash and negligent driving of the driver of the Private bus bearing No.KA-25-C-5064. Hence, I answer issue No.1 & 2 in the affirmative.
24. Issue No.3 & 4:- The petitioners in order to prove the relationship of the petitioners with the deceased, the petitioner No.3 has produced Aadhar card of petitioner No.1 at Ex.P12, Aadhar card of petitioner No.2 at Ex.P13, Election Identity card of petitioner at Ex.P14, notarised copy of Pan card of petitioner No.2 at Ex.P15, notarised copy of election ID card of petitioner No.3 at Ex.P16, notarised copy of Aadhar card of petitioner No.3 at Ex.P17, notarised copy of Pan card 15 SCCH-18 MVC 7029/2018 of petitioner No.3 at Ex.P18, notarised copy of Aadhar card of petitioner No.4 at Ex.P19. On perusal of the same, it reveals that the petitioner No.1 is the mother of the deceased, the petitioner No.2 is the wife of deceased and the petitioner No.3 & 4 are children of the deceased Venkatesh. On perusal of the cross-examination of PW1, PW1 has completed his M.Sc., Degree and doing Phd., But he has not produced any documents to show that he is doing Phd., and depending on his father. Therefore, the petitioner No.3 is not dependant on the income of the deceased. The petitioner No.4 being the daughter of the deceased is a spinster, is depending on the income of the deceased.
25. The specific contention of the petitioners is that, deceased Venkatesh was hale and healthy at the time of accident, aged about 45 years, working as a Manager in Sri Suraksha 16 SCCH-18 MVC 7029/2018 Enterprises (Gas Bunk) (LPG) and getting an income of Rs.54,000/- per month. Due to the sudden demise of Venkatesh petitioners have put to untold misery, pain and sufferings, frustration and financial loss.
26. To prove the age of the deceased, the petitioners have not produced any documents. On perusal of cross-examination of PW1, he has admitted that his father's date of birth was 6.6.1966. So the same is considered as the date of birth of the deceased. The accident occurred on 20.5.2018. So as on the date of accident, the deceased was aged about 52 years. So, the same is considered as age of the deceased, then the proper Multiplier applicable to the case on hand is "11".
27. The counsel for the petitioners has argued that the deceased was working as a Manager/at Suraksha Enterprises (Gas Bunk) (LPG) and also working as General Mechanic in Rajarajeshwari cleaning and floor mill and getting an income of Rs.54,000/- per 17 SCCH-18 MVC 7029/2018 month. To substantiate the said fact, the petitioners have examined proprietor of Suraksha Enterprises as PW2. PW2 has stated in his evidence that the deceased Venkatesh V. was working as a supervisor/manager in the said company for the past ten years till 20.5.2018. He was drawing total emoluments of Rs.54,000/-.
28. Though the petitioners have produced salary certificate marked at Ex.P9, issued by Suraksha Enterprises, but they have not produced acquaintance roll or bank pass book to show that deceased was getting salary of Rs.54,000/- per month. In the absence of the positive documents regarding avocation and income of the deceased, it is very difficult to believe the income of the petitioner as alleged in the claim petition. So, considering the present life condition and the age of the petitioner, if notional income of Rs.8,500/- is to be considered, it will meet the ends of justice. So, the same is considered as the income of the petitioner per month. The annual income comes to Rs.1,02,000/-. 18 SCCH-18 MVC 7029/2018
29. At this juncture this court has drawn the attention on the decision of the Hon'ble Supreme Court reported in 2017 ACJ 2700 in between National Insurance Co.Ltd., Vs. Pranay Sethi and others. In the said decision, it is held that;
Quantum---Fatal accident---Principles of assessment---future prospects----Whether legal representatives of the deceased who was on fixed salary or self-employed or aged between 50 and 60 would be entitled to benefit of future prospects for the purpose of computation of compensation---Held: yes; case-law discussed.
While determining the income, an addition of 50 per cent of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30 per cent, if the age of the deceased was between 40 and 50 years. In case the deceased was between 19 SCCH-18 MVC 7029/2018 the age of 50 and 60 years, the addition should be 15 per cent. Actual salary should be read as actual salary less tax.
In case the deceased was self-employed or on a fixed salary, an addition of 40 per cent of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25 per cent where the deceased was between the age of 40 to 50 years and 10 per cent where the deceased was between the age of 50-60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
30. Further in a citation reported in 2018 ACJ page 5 (Hem Raj Vs. Oriental Insurance Co.Ltd.,), wherein the Hon'ble Apex Court has held as under:
"We are of the view that there cannot be distinction where there is positive evidence of income and where minimum income is determined on guesswork in the facts and circumstances of a case. 20 SCCH-18 MVC 7029/2018 Both the situations stand at the same footing. Accordingly, in the present case, addition of 40% to the income assessed by the Tribunal is required to be made. The Tribunal made addition of 50% while the High Court has deleted the same."
31. In view of the above decisions of the Hon'ble Apex Court, I am of the view that the deceased being aged about 52 years, he comes under the age group of 50-60 years, 10% of the income of Rs.1,02,000/- is to be added to the income of deceased as future prospects, on such addition, the total income of the deceased comes to Rs.1,12,200/-.
32. As I have already discussed that the petitioner No.1, 2 and 4 are the financial dependants of the deceased. So, as per the decision of the Hon'ble Supreme Court reported in 2012 ACJ 1298 in between Sarlaverma Vs. Delhi Transport Corporation Ltd., if there are 2-3 dependants, 1/3rd shall be deducted towards the personal and living expenses. In the case on hand, petitioner Nos.1, 2 and 4 are the financial dependants of the deceased, so, 21 SCCH-18 MVC 7029/2018 1/3rd of the income of the deceased shall be deducted towards his personal expenses, on such deduction, the income of the deceased comes to Rs.74,800/-p.a.
33. The income of the deceased is taken as Rs.74,800/- p.a. and the multiplier 11 is applied, then the loss of dependency comes to Rs.8,22,800/-. Considering the above facts, I deem it just and reasonable to grant for compensation of Rs.8,22,800/- under the head of loss of dependency.
34. At this juncture I relied the judgment of the Hon'ble Supreme Court in Civil Appeal No.9581/2018 (Arising out of SLP (Civil) No.3192/2018) in case of Muama General Insurance Co.Ltd., Vs. Nanu Ram alias Chuhru Ram and Others.
In which it is held in para No.8.7 that " A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under which the compensation it so be awarded in 22 SCCH-18 MVC 7029/2018 a death case. One of these heads is "Loss of Consortium":
In legal parlance "consortium" is a
compendious term which encompasses 'spousal
consortium; parental consortium and filial
consortium.
The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse.
Spousal consortium is generally defined as rights pertaining to the relationship of a husband
-wife which allows compensation to the surviving spouse for loss of "company, society, co- operation, affection and aid of the other in every conjugal relation."
Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training."
23 SCCH-18 MVC 7029/2018
Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their oral in the family unit.
Consortium is a special prism reflection changing norms about the status and worth of actual relationship. Modern jurisdictions world- over have recognized that the value of child's consortium far exceeds the economic value of the compensation awarded in case of death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensating for loss of love, affection, care and companionship of the deceased child.
24 SCCH-18 MVC 7029/2018
35. In the instant case, petitioner No.2 is the wife of the deceased is entitled for Spousal consortium, which can be compensated for loss of "company, society, co-operation, affection and aid of the other in every conjugal relation and petitioner No.3 & 4 are the children of the deceased is entitled for Parental consortium for the loss of "parental aid, protection, affection, society, discipline, guidance and training, the petitioner No.1 is the mother of the deceased is entitled for filial consortium, which is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Therefore, Rs.40,000/- each is awarded to the petitioner Nos. 1 to 4.
36. Further the petitioners are wife, children and mother of deceased, they are entitled for compensation of Rs.15,000/- 25 SCCH-18 MVC 7029/2018 under the head of loss of estate and also an amount of Rs.15,000/- is awarded under the head of transportation of dead body, funeral and obsequies ceremony expenses .
37. 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 under the following heads.
Compensation heads Compensation amount
Towards loss of dependency Rs.8,22,800-00
Towards loss of consortium Rs. 1,60,000-00
Towards loss of estate Rs. 15,000-00
Towards transportation of dead body, Rs. 15,000-00 funeral & obsequies ceremony expenses Total Rs.10,12,800-00
38. LIABILITY: As I have already discussed in issue No.1 to 4 the accident occurred due to the rash and negligent driving of the driver of the private bus bearing No.KA-25-C-5064. 26 SCCH-18 MVC 7029/2018
39. The respondent No.2 has admitted about the issuance of policy in respect of vehicle bearing No.KA-25-C-5064 and its validity. Therefore, the respondents are jointly and severally liable to pay the compensation. In view of the valid insurance policy the respondent No.2 is liable to pay the compensation together with interest @ 8% P.A. from the date of petition till the date of deposit. Accordingly, I answer the issue No.3 & 4 are partly affirmative.
40. ISSUE NO.5: In view of my findings on the above issues, I proceed to pass the following;
ORDER The claim petition filed by the petitioners U/S 166 of MV Act is hereby partly allowed with costs.
The petitioners are entitled for compensation of Rs.10,12,800/- with interest @ 8% P.A. from the date of petition till the date of deposit.
27 SCCH-18 MVC 7029/2018The respondents are jointly and severally liable to pay the compensation. In view of the valid insurance the respondent No.2 being the insurer is liable to pay the compensation with interest at 8% p.a. from the date of petition till the date of deposit within two months from the date of this order.
Out of the compensation amount awarded to the petitioners together with interest, Rs.45,000/- is awarded to the petitioner No.3 and from the remaining amount the petitioner No.1 is awarded to the share of 10%, the petitioner No.2 is allotted to 70% of the share and the petitioner No.4 is awarded to 20% of the share amount.
With regard to the compensation amount together with interest of petitioner No.2 and 4, 40% of the amount shall be deposited in any 28 SCCH-18 MVC 7029/2018 nationalized/schedule bank of their choice, for a period of 3 years and remaining 60% of the amount shall be released to the petitioners through account payee cheque on proper identification. The petitioners are at liberty to withdraw the periodical interest accrued on their deposit amount from time to time.
With regard to the compensation amount together with interest of petitioner No.1 & 3 entire amount shall be released to the petitioners through account payee cheque on proper identification without any further proceedings.
Advocate fee is fixed at Rs.1,000/- each. Draw award accordingly.
(Dictated to the stenographer directly on computer, corrected by me and then pronounced in the open court on this 3rd day of January 2020) (MAHANTESH S.DARGAD) III ADDL. SMALL CAUSES JUDGE & ACMM,BENGALURU.
29 SCCH-18 MVC 7029/2018ANNEXURE List of witnesses examined on petitioner's side:
PW1 Shri Anuraj N.V. PW2 Shri Venkataramanappa
List of documents exhibited on petitioner's side:
Ex-P1 True copy of FIR with Complaint Ex-P2 True copy of Spot mahazar Ex-P3 True copy of Rough sketch Ex-P4 True copy of IMV report Ex-P5 Inquest report Ex-P6 P.M.report Ex-P7 True copy of Charge sheet Ex-P8 Death certificate of Venkatesh V. Ex.P9 Salary certificate Ex.P10 Letter of loan sanction Ex.P11 Notice issued under rule 3 (2) of IMV Act Ex.P12 Notarised copy of Aadhar card of petitioner No.1 Ex.P13 Notarised copy of Aadhar card of petitioner No.2 Ex.P14 Notarised copy of Election ID card of petitioner No.2 Ex.P15 Notarised copy of pan card of petitioner No.2 Ex.P16 Notarised copy of Election ID card of petitioner No.3 Ex.P17 Notarised copy of Aadhar card of petitioner No.3 Ex.P18 Notarised copy of Pan card of petitioner No.3 30 SCCH-18 MVC 7029/2018 Ex.P19 Notarised copy of Aadhar card of petitioner No.4 Ex.P20 Attested copy of registration certificate Ex.P21 Attested copy of licence Ex.P22 Notarised copy of Aadhar card
List of witnesses examined on respondents' side:
Ex. RW1 Kum. Kruthishree N. List of documents exhibited on respondents' side:
Ex.R1 Authorization letter
Ex.R2 True copy of insurance policy
III ADDL.SMALL CAUSES JUDGE
& ACMM, Bengaluru.