Bangalore District Court
Sri.Nataraj.T vs R.Anusuya on 12 October, 2021
SCCH-20 1 MVC No.6761/2019
BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL &
V ADDL. JUDGE SCCH20, Mayo Hall Unit, Bengaluru.
Dated this the 12th day of October, 2021
Present: Smt.Sharmila C.S. BA.L., LL.M
V Addl. Small Causes Judge
& XXIV A.C.M.M., Member, M.A.C.T.,
Bengaluru.
MVC. No.6761/2019
PETITIONER: 1. Sri.Nataraj.T,
S/o Tharmasamy
Aged about 55 years,
2. Smt.Sarojini P
W/o Nataraj.T
Aged about 46 years,
3.Hariharan.N
S/o Nataraj.T
Aged about 20 years,
All are residing at D.No.1/474,
Lakshminagar,
Neelambur, Sulur Taluk,
Coimbatore, TamilNadu
(By Pleader Sri.M.Subramani)
V/s
RESPONDENTS: 1. R.Anusuya
W/o Ramasubbu,
# 265, 5th A, cross, 2nd main road,
RR Layout, Vijinapura,
Dooravaninagar post,
Bangalore 16.
SCCH-20 2 MVC No.6761/2019
2. United India Insurance Co.Ltd.,
TP - HUB, NO.18, Krushibhavan,
6th floor, Nrupathunga Road,
Opp Hudson Circle,
Bangalore - 01
(R1Exparte )
(R2By Pleader Sri.B.R.Venkatesh Kamath Adv)
JUDGMENT
This present petition is filed Under section 166 of the Indian Motar Vehicles Act, claiming compensation for the death of one Sri.Gokula Krishnan in the Road Traffic Accident on 12.10.2019.
2. Petition averments in brief are as follows; That on 12.10.2019 at about 05.30 Am, while the deceased was riding a motor cycle bearing No.TN41AP9018 on ITPL main road, near GR Tech park, Bangalore, a Truck Trailer bearing No.KA01AA6295 came in rash and negligent manner in a high speed and dashed to the deceased motorcycle from behind, due to which he fell down and SCCH-20 3 MVC No.6761/2019 sustained grievous injuries and died on the way to hospital. That the deceased was aged about 25 years and was working as a Design Engineer and earning Rs.48,333/ per day, The petitioners are the parents and brother of the deceased. Thus, prays to grant compensation of Rs.1,00,00,000/.
3. The 2nd respondent being the insurer filed written statement and submits that accident occurred due to the negligence of the deceased riding the motorcycle and since the 1st respondent did not communicate regarding the accident and failed to furnish the documents, the respondent No.2 is not liable to indemnify. Therefore prays to dismiss the petition. The respondent No.1 was placed exparte.
4. On basis of the Pleadings and materials on record, the following issues were framed:
ISSUES
1. Whether the petitioner proves that on 12.10.2019 at about 05.30 AM, when the deceased was riding motor cycle bearing No.TN41AP9018, on ITPL main road, near GR Tech Park, SCCH-20 4 MVC No.6761/2019 Bangalore, while a Truck Trailer bearing No.KA01AA6295, came in a rash and negligent manner and dashed against the petitioner motor cycle from behind, as a result of forced impact, the petitioner sustained grievous injuries and succumbed on the way to hospital?
2. Whether the petitioners are entitled for compensation? If so, to what amount and from whom?
3. Whether order or award?
5. In order to prove their case, the petitioner No.3 got examined himself as P.W.1 and got marked documents as Exhs.P.1 to P.25 and got examined one witness as PW2 and got marked documents as Ex.P.26 to P.29. The Respondent No.2 got examined witness as RW1 and got marked two documents as Ex.R.1 and R.2.
6. Heard the arguments from the counsel for the petitioner and the respondent and perused the materials placed before me.
SCCH-20 5 MVC No.6761/2019
7. My findings on the above issues are as follows:
Issue No.1 : In the Affirmative,
Issue No.2 : Partly in the Affirmative
Issue No.3 : As per final order
for the following:
REASONS
8. ISSUE No.1: It is the case of the petitioners that on 12.10.2019 at about 05.30 Am, while the deceased was riding a motor cycle bearing No.TN41AP9018 on ITPL main road, near GR Tech park, Bangalore, a Truck Trailer bearing No.KA01AA6295, came in rash and negligent manner in a high speed and dashed to the deceased motorcycle from behind, due to which he fell down and sustained grievous injuries and died on the way to hospital. That the deceased was aged about 25 years and was working as a Design Engineer and earning Rs.48,333/ per day, The petitioners are the parents and brother of the deceased and have sought for award and compensation to the tune of Rs.1,00,00,000/.
9. In order to prove the negligent act of the driver of the respondent No.2, the petitioner No.3, the brother of the SCCH-20 6 MVC No.6761/2019 deceased got examined himself as PW1 and filed his affidavit in lieu of examination in chief. He has also produced 29 documents on his behalf. The copy of the FIR marked as Ex.P.1 in Cr.No.158/2019, shows that it is lodged against one driver of vehicle bearing No.KA01AA6295. The Ex.P.2 is the FIS based upon which FIR is lodged. The Mahazar along with sketch are marked as Ex.P.3 and P.4. As per the sketch, one vehicle moved from left to right and another vehicle moved in a straight direction. The concerned IO has failed to note as to which vehicle belonged to the deceased and which vehicle is the offending one and thus cannot be distinguished easily. The inquest report is marked as Ex.P5 and the post mortem report is marked as Ex.P7, which shows that the injuries sustained are antemortem in nature and the opinion as to cause of the death is due to shock and hemorrhage as a result of multiple injuries sustained. The cause of the death of the deceased is thus the alleged accident. The IMV report exhibited as Ex.P6 shows that there was no fresh damages on the vehicle of the offending SCCH-20 7 MVC No.6761/2019 lorry and the front side of the vehicle pertaining to the deceased was damaged at tail kemp assembly, wheel mid guard damaged, crash guard at right side and fuel tank pressed at left side. This shows that the offending vehicle as shown in the sketch might have dashed the vehicle of the deceased, without noticing the vehicle coming towards the left side.The final report is against the driver of the said truck lorry which is marked as Ex.P.13. The sketch shows that the helmet was also lying in pieces on the spot, which can be presumed that the deceased had taken all the safety measures while driving the vehicle. From these it can be inferred that the deceased succumbed due to the accident caused by the driver of the First respondent.
10. Apart from mere denial by the 2 nd respondent , there is no much evidence on the record to disprove the said facts. The RW1, is the insurer and administrative officer of the insurance company, who is not the eye witness has deposed on the basis of the documents. But nothing is elicited SCCH-20 8 MVC No.6761/2019 regarding the negligence of the deceased. Accordingly, I am of the considered opinion that the accident occurred due to the negligent act of the driver of the truck lorry, and issue no.1 is thus answered in affirmative.
11. Issue No.2: Now in respect of the liability and the quantum of compensation is concerned, the SSLC marks card of the deceased marked as Ex.P.19, depicts that the deceased was born on 11.06.1994 and therefore, as on the date of accident the deceased was 26 years and appropriate multiplier is 17.
12. As per the petitioners, the deceased was working as Design Engineer and was earning Rs.48,333/ per month. But as per the PW2 the deceased was earning Rs.53,572/ per month, which the salary slips are marked as Ex.P28. This also shows that there is hike in the salary of the deceased every month, but no income tax was deducted at source. When PW2 was cross examined, admits the facts SCCH-20 9 MVC No.6761/2019 that the income tax of Rs.4,16,420/ needs to be deducted, but they would not deduct the income tax from their company. Thus, the annual income of the deceased would be Rs.6,42,864/ in the year 2019. Thus taxable income of the deceased as follows;
Total Annual income 6,42,86400
Less tax exemption 2,50,00000
3,92,86400
Tax payable @ 3,92,86400
5% on 2,50,000 = 12,500
20% on 1,42,864= 28,572 41,07200
Total annual income= Rs.6,42,864.00 Less Tax = Rs. 41,072.00 Thus, Rs.6,01,792/ is considered as actual income.
13. The deceased contributed his income to the family. The petitioners are parents and brother of the deceased. The relationship is not disputed. The counsel for the respondent submits that the father of the deceased was working and is thus earning and not a dependent on the deceased. As per the PW1, the father of the deceased is earning about 6000/ to 8000/ per month. But there is no question regarding the SCCH-20 10 MVC No.6761/2019 income of the PW1, who is a major and aged 20 years. The father of the deceased earning Rs.6000 or 8000/ per month cannot be expected to run the family, which includes the deceased and the 3 petitioners out of the said income. Thus there is dependency of the petitioner no. 1, the father of the deceased to run the family at his old age on the income of the deceased. The petitioner no.3 is also aged 20 years, cannot be expected to have a separate income of his own. Therefore, in my opinion, all the 3 are considered to be the dependents upon the deceased. The deceased aged about about 25 years and had permanent job and thus 50% of established income must be added towards future prospects and he was bachelor and 50% of actual income must be deducted towards personal expenses.
Thus Loss of dependency calculation is thus as follows:
1. Calculating 50% future prospects:
50% X 6,01,792 =3,00,896/ Adding 50% future prospects: SCCH-20 11 MVC No.6761/2019 6,01,792+3,00,896=9,02,688/
2. calculation of 50% income of Rs.9,02,688/ 9,02,688 X 50% =4,51,344/
3. Deducting 50 % personal expenses:
Rs.9,02,6884,51,344=4,51,344/
4. Calculating loss of dependency 4,51,344 X '17' =76,72,848/
14. Further, On conventional heads, namely, loss of estate, funeral expenses, I deem it fit to grant compensation at Rs.15,000/on each head.
15. The petitioners are the parents and brother and have lost their future support, love and affection. Therefore the petitioner No.1 and 2 are entitled to loss of consortium of Rs.40,000/ each, petitioner no. 3 is entitled to love and affection to the tune of Rs.20,000/ each. Therefore, in all the petitioners are entitled to a compensation as calculated below;
SCCH-20 12 MVC No.6761/2019
1. Loss of dependency Rs. 76,72,848/ 2 Loss of estate Rs. 15,000/ 3 Towards funeral and obsequies ceremonies Rs. 15,000/
4. Loss of consortium Rs. 1,00,000/ Total Rs. 78,02,848/ In all the petitioners are entitled for compensation of Rs.78,02,848/ .
16. It was argued by the counsel for the respondent that the petitioners have received a sum of Rs.22 lakhs from the GPF from the company and needs to be deducted from the award. Also relies upon the judgement in 1999ACJ 10 in Helen C Rebello and others Vs. Maharastra State Road Transport corporation and another, where it is held that the compensation payable under the MV Act is statuatory, while the amount under life insurance policy is contractual and cannot be deducted. But held further that where the employer insures his employee , any amount received out of such insurance is liable for deduction. It is aptly applicable to the instant case on hand.
SCCH-20 13 MVC No.6761/2019
In the instant case, the Pw2, the employer of the deceased has admitted that the company was paying the premium for the Group insurance. In one of the recent judgement of the appeallate court, Reported in 2020 ACJ 1855 (Regional Manager, United India Insurance Co.Ltd., Vs HC Nagabhushan and others, it was held thus: "Quantum
- deductions - Group insurance scheme contention that tribunal erred in not deducting Rs.14,99,999/ received by the claimants from the employer of the deceased under the group insurance scheme while computing compensationwhether any deduction towards amount received under group insurance scheme is admissible while computing compensation - Held:
no." But important thing to be noted is who is the payer of the premium. No where it is brought before this court that the deceased was paying towards the group insurance scheme.Even the salary slips do not show the said deductions. Therefore, as per the PW2, when the premium for the group insurance is paid by the company, the petitioners are not entitled to take double benefit out of the SCCH-20 14 MVC No.6761/2019 insurance for which, the deceased had no contractual liability with the company. Such being the case, an amount of Rs.22,00,000/ need to be deducted from the entire compensation, as received by the petitioners for the death of their son and brother. Thus the petitioners are entitled for the following compensation, which is Rs.78,02,848/ less Rs.22,00,000/, tuning to Rs.56,02,848, rounded to Rs.56,03,000/.
Liability
17. The respondent no.2 is not denying the existence of the policy. The policy is produced as Ex.R2, which shows that the policy with respect to the offending vehicle was running at the time of the accident. The respondent no.2 has failed to prove the negligence of the deceased. Therefore, the respondent No.2, the insurer of the vehicle is liable to pay the amount as agreed by them. Thus, the petitioners are entitled for compensation with cost and interest. SCCH-20 15 MVC No.6761/2019
18. With regard to the interest, I deem it fit to grant the present rate of bank interest at 6% pa., from the date of claim petition till the date of realization. Thus In view of the discussions made above, I answer the issue No.2 in the affirmative, by burdening the respondent No.2 to pay the amount.
19. Issue No.3: After having answered issue No.1 and 2 as supra I hold that, the petition filed by the petitioners is fit to be allowed in Part, in the result, I proceed to pass the following: ORDER The claim petition filed under Section 166 of the Motor Vehicles Act is partly allowed with cost.
The petitioners No.1 to 3 are entitled for compensation of Rs.56,03,000/ with interest @ 6% pa., from the date of petition till its realization.
The respondent No.2 shall deposit aforesaid compensation amount with 6% interest before this tribunal within two months from date of this order.
SCCH-20 16 MVC No.6761/2019After deposit, the petitioners are entitled to share in the ratio of 4:4:2 out of the 56,03,000/. with cost and interest and consortium as under.
The petitioner No.1 and 2 are entitled to a sum of Rs.22,41,200/ each and petitioner No.3 is entitled for a sum of Rs.11,20,600/ with interest. After deposit, 60% share of the petitioner No.1 to 3 shall be released and deposit 40% share of compensation amount as FD in their name with any nationalized or scheduled bank of her choice for a period of three years.
Advocate fee is fixed at Rs.3,000/.
Draw the Award accordingly.
(Dictated to the Stenographer directly on computer, corrected by me and then pronounced in open court on this the 12th day of October 2021) (Sharmila C.S) V ASCJ & Member, MACT, Court of Small Causes, Mayo Hall Unit, Bengaluru.
A N N E X U R E:
Witnesses examined for petitioners:
P.W.1 : Hariharan P.W.2 : Ramya R Shetty
Documents marked for petitioners:
Ex.P1 : True Copy of the FIR, Ex.P2 : True Copy of the FIS, SCCH-20 17 MVC No.6761/2019 Ex.P3 : True copy of spot Mahazar Ex.P4 : True copy of Sketch Ex.P5 : True copy of Inquest report Ex.P6 : True copy of IMV report Ex.P7 : True copy of PM report Ex.P8 : 133 Notice Ex.P9 : Reply to 133 notice Ex.P1011: Indemnity bond Ex.P12 : Statement Ex.P.13 : Charge sheet Ex.P14 : True copy of DL Ex.P15 : True copy of Adhaar card Ex.P1618: Notarized copy of adhaar card of petitioners Ex.P19 : SSLC Marks card Ex.P20 : PUC marks card Ex.P21 : Degree certificate Ex.P22 : appointment letter Ex.P23 : Salary certificate Ex.P24 : pay slips 96 in pages Ex.P25 : Bank statement Ex.P26 : Appointment letter Ex.P27 : Revised pay details Ex.P28 : pay slips 10 in nos Ex.P29 : Final pay slip SCCH-20 18 MVC No.6761/2019
Witnesses examined for respondents:
RW1 : Savitha Documents marked for respondents:
Ex.R.1 : Authorization letter
Ex.R.2 : Policy
(Sharmila CS,)
V ASCJ & Member, MACT,
Court of Small Causes,
Mayo Hall Unit, Bengaluru.
SCCH-20 19 MVC No.6761/2019
12.10.2021
(Judgment pronounced in the Open
Court vide separate Order)
ORDER
The claim petition filed under Section 166 of the Motor Vehicles Act is partly allowed with cost.
The petitioners No.1 to 3 are entitled for compensation of Rs.56,03,000/ with interest @ 6% pa., from the date of petition till its realization.
The respondent No.2 shall deposit aforesaid compensation amount with 6% interest before this tribunal within two months from date of this order.
After deposit, the petitioners are entitled to share in the ratio of 4:4:2 out of the 56,03,000/. with cost and interest and consortium as under.
The petitioner No.1 and 2 are entitled to a sum of Rs.22,41,200/ each and petitioner No.3 is entitled for a sum of Rs.11,20,600/ with interest. After deposit, 60% share of the petitioner No.1 to 3 shall be released and deposit 40% share of compensation amount as FD in their name with any nationalized or scheduled bank of her choice for a period of three years.
Advocate fee is fixed at Rs.3,000/.
Draw the Award accordingly.
V Addl. Judge & 24th ACMM SCCH-20 20 MVC No.6761/2019