Bangalore District Court
Smt. Sindhu .S vs Lokesh S/O Ramappa on 5 April, 2018
BEFORE THE MOTOR ACCIDENTS CLAIMS RIBUNAL&
XV ADDL. JUDGE SCCH-19, Mayo Hall Unit,
Bengaluru.
Dated this the 5th day of April 2018
Present: Sri. DYAVAPPA. S.B.,
B.A., LL.B.,
XV Addl. Small Causes Judge &
XXIII A.C.M.M., Member, M.A.C.T.,
Bengaluru.
MVC No.160 / 2015
Petitioners : 1. Smt. Sindhu .S
W/o Senthil Nathan .V,
Aged about 26 years.
2. Kum. Inchara .V
D/o Senthil Nathan .V,
Aged about 14 months bady.
3. V. Senji Lakshmi,
W/o Venugopal .G,
Aged about 54 years.
4. Venugopal .G,
S/o Gnana Sambandham,
Aged about 62 Years.
(Since Petitioner No.2 is minor,
Rep. by natural guardian and Mother
Petitioner No.1 i.e., Sindhu .S)
All are R/at SF 202, Garuda,
Residency, (Near Sobha Rose)
Whitefield Main Road, Whitefield,
Bangalore-66.
(Pleader by Sri. M.Subraminya)
2 SCH-19
MVC.160 / 2015
V/s
Respondents: 1. Lokesh S/o Ramappa,
Gunnenahalli, Kaiwara Hobli,
Chinthamani Taluk,
Chikkaballapura District.
(Owner of the TATA Ace bearing
Reg. no.KA-13-A-5182)
(Exparte)
2. TATA AIG General Insurance
Co., Ltd., No.69, J.P. & Devi,
Jambukeshawara Arcade,
3rd Floor, Millers road,
Bangalore-560 052.
(Policy No.064991/0145002463/000000/00
Valid from 30.03.2014 to 29.03.2015)
(Pleader by Sri.Ravi.S.Samprathi)
3. M.S. Chandrashekar,
No.924, 7th Main, Raghavendra
Block, Srinagar, Bangalore-50.
(Owner of TATA Sumo bearing
Reg. No.KA-41-A-3034)
(Pleader by Sri.M.S.Chndrashekar)
4. The Oriental Insurance Co., Ltd.,
T.P. HUB, Regional office,
No.44/4, Leo Shopping Complex,
Residence Road Cross,
Bangalore-25.
(Policy No.423200/31/2014/10153
Valid from 30.12.2013 to 29.12.2014)
(Pleader by Sri.B.R.Venkatesh Kamath)
*****
3 SCH-19
MVC.160 / 2015
JUDGMENT
The Petitioners have filed this petition U/sec.166 of M.V. Act, 1989 claiming compensation amount of Rs.10,00,00,000/- (Ten Crore only) in a road traffic accident.
2. Brief facts of the case of the Petitioners are as under:
According to the Petitioners, that on 29.12.2014 at about 10.30 A.M. the deceased was riding Honda Activa bearing Reg.No.KA-03/ET-9386 from KTPO towards L & T company slowly and cautiously, when he reached near L & t Company junction, at that time one TATA Ace baring Reg.No.KA-13/A-5182, driven by its driver in a rash and negligent manner, endangering to human life came from Marriot hotel towards KTPO at high speed and dashed against the motor cycle of the deceased. Mean while one TATA Sumo bearing Reg.No.KA-41/A-3034 driven by its driver in a rash and negligent manner so as to endangering human life came from KTPO towards L & T company from left at high speed and dashed against deceased Honda Activa. As a result of forced impact deceased sustained grievous injuries to head and all over the body and succumbed to the accidental injuries on the way to the Vydehi hospital, Whitefield, Bengaluru.
4 SCH-19 MVC.160 / 2015 Thereafter dead body was shifted to Vydehi hospital and post mortem was conducted in the said hospital and body was handed over to the Petitioner. Thereafter they have shifted the dead body and spent Rs.2,50,000/-
towards funeral, obsequies, last rites ceremony of the deceased. It is further stated that, Due to sudden death of the deceased, Petitioners were undergoing deep mental shock, pain and sufferings.
3. It is further stated that, Prior to the date of accident, the deceased was hale, healthy and was aged about 33 years and he was working as Engineering to lead R & D at Tegile systems Pvt., ltd., Whitefield, Bangalore and earning Rs.26,00,000/- p.a. and he used to contribute entire income for maintenance of his family. It is further stated that, this accident occurred due to rash and negligent driving of the drivers of TATA Ace baring Reg.No.KA-13/A-5182 and TATA Sumo bearing Reg.No.KA-41/A-3034. Hence, the Whitefield Traffic Police have registered a case in Rs.No.193/2014 for the offence punishable U/sec.279 and 304(A) of IPC. It is further stated that, the Respondent No.1 & 3 are the owners and Respondent No.2 & 4 are the Insurers of the offending vehicles are jointly and severally liable to pay 5 SCH-19 MVC.160 / 2015 the compensation to the Petitioners. Hence, the Petitioners prayed to grant compensation.
4. After Service of notice, Respondent No.1 did not appear before the tribunal and hence he placed exparte. Respondent No.2 to 4 appeared through their respective counsels and filed written statement.
5. Brief averments of the written statement of the Respondent No.2 as under:
The Petition is not maintainable either in law or on facts. Further they denied about issuance of insurance policy in respect of TATA Ace baring Reg.No.KA-13/A- 5182 for a period from 30-03-2014 to 29-03-2015. Further stated that, they have issued policy from 30-03- 2012 to 29-03-2013 and same was expired prior to the date of accident. After expiry of said policy the owner has not renewed the same. Further stated that, this accident occurred due to sole negligence on the part of the deceased only. Further they denied the age, income and occupation of the deceased and also relationship of the Petitioners with the deceased. They further stated that, compensation claimed by the Petitioners is exorbitant and fanciful. Hence prayed to dismiss the petition.
6. Brief averments of the written statement of the Respondent No.3 as under:
6 SCH-19 MVC.160 / 2015 The Petition is not maintainable either in law or on facts. Further this Respondent admits that, he is the owner of TATA Sumo bearing Reg.No.KA-41/A-3034 and same was insured with the Respondent no.4. Further stated that as on the date of the accident the driver of said vehicle was holding valid and effective D.L. Further stated that, the accident occurred due to rash and negligent driving of the driver of TATA Ace baring Reg.No.KA-13/A-5182. Further they denied the age, income and occupation of the deceased and also relationship of the Petitioners with the deceased. They further stated that, compensation claimed by the Petitioners is exorbitant and fanciful. Hence prayed to dismiss the petition.
7. Brief averments of the written statement of the Respondent No.4 as under:
The Petition is not maintainable either in law or on facts. Further they denied about issuance of insurance policy in respect of TATA Sumo bearing Reg.No.KA-41/A- 3034 and restricted its liability to the terms and conditions of the policy. Further stated that the driver of said TATA Sumo bearing Reg.No.KA-41/A-3034 does not posses valid and effective D.L. and its owner does not posses valid FC and permit to the said vehicle, as on the
7 SCH-19 MVC.160 / 2015 date of accident. Hence, there is a violation of terms and conditions of the policy. This Respondent taken specific contention that this accident occurred due to composite negligence of drivers of both Tata Ace and Tata sumo vehicles. Further stated that, this accident occurred due to sole negligence on the part of the deceased only, as the deceased riding his vehicle without having valid D.L. and also not wearing the helmet as on the date of accident. Further they denied the age, income and occupation of the deceased and also relationship of the Petitioners with the deceased. They further stated that, compensation claimed by the Petitioners is exorbitant and fanciful. Hence prayed to dismiss the petition.
8. Based on the above pleadings, this tribunal framed the following:-
ISSUES
1. Whether the Petitioners prove that, on 29.12.2014 at about 10.30 A.M. when the deceased Senthil Nathan .V., was riding Honda Activa bearing Reg.No.KA-03/ET-9386 from KTPO towards L & T company on L & T main road, KTPO road junction Bangalore, at that time one TATA Ace baring Reg.No.KA-13/A-
5182, came in a rash and negligent manner, and hit against him and the deceased fell down and sustained grievous injuries and succumbed to the injuries in the hospital?
8 SCH-19 MVC.160 / 2015
2. Whether the Petitioners are entitled for compensation? If so, to what amount and from whom?
3. Whether order or award?
Additional Issue:-
Whether the Respondent no.4 proves that, there is composite negligence on the part of the both vehicle involved in the accident?
9. In order to prove the case, Petitioner side two witnesses examined as Pw1 and 2. They have produced in all 51 documents marked as Ex.P1 to 51. On the other hand, Respondent No.2 side three witnesses examined as Rw.1 to 3, and produced 8 documents which is marked as Ex.R1 to R9. ( By over sight Ex.R1 marked twice)
10. Heard arguments of both side and Perused the materials available on hand.
11. For the following reasons, I given the answer to the above Issues as under:-
Issue No.1 : In the Affirmative,
Additional Issue No.1 : In the Affirmative
Issue No.2 : Partly in the Affirmative
Issue No.3 : As per final order
for the following:
9 SCH-19
MVC.160 / 2015
REASONS
12. ISSUE No.1: It is the specific case of the
Petitioner that, on 29-12-2014 at about 10.30 a.m., when husband of the 1st petitioner Sri. Senthil Nathan was riding his Motor cycle bearing No.KA-03-ET-9386 from KTPO towards L and T Company on KTPO main road Junction, at that time the driver of the Tata Ace bearing No.KA-13-A-5187 came in a rash and negligent manner with high speed and dashed against the Motor cycle of the petitioner and fell down, on the same time one Tata Sumo bearing No.KA-41-A-3034 drive by his driver in a rash and negligent manner and dashed the said Motor cycle, as a result, the rider of the Motor cycle was sustained grievous injuries and succumbed to the injuries at the time of shifting the hospital. In the written statement, the respondents have denied the rash and negligent driving of the offending vehicles and they have stating that, the accident occurred due to the sole negligence of the deceased.
13. The petitioner No.1 Sindhu examined herself as PW.1 and filed the affidavit in lieu of chief examination.
In her chief affidavit, she has repeated the averments of the petition and produced copy of the FIR and complaint marked as Ex.P.1 and 1(a), produced copy of mahazar 10 SCH-19 MVC.160 / 2015 and rough sketch marked as Ex.P.2 and P.2(a), produced PM report and inquest report marked as Ex.P.3 and P.4, produced IMV report and police notice marked as Ex.P.5 and P.6, produced copy of reply to the notice marked as Ex.P.7, produced copy of the notice issued by the police marked as Ex.P.8, produced reply to the notice marked as Ex.P.9, produced copy of indemnity bond marked as Ex.P.10 and P.11, produced copy of charge sheet marked as Ex.P.12, produced one notarized copy of marriage certificate marked as Ex.P.13, produced notarized copy of Aadhaar card marked as Ex.P.14, produced notarized copy of birth certificate marked as Ex.P.15, produced one notarized copy of passport marked as Ex.P.16, produced one notarized copy of Aadhaar card marked as Ex.P.17, produced one appointment letter and 3 salary slips marked as Ex.P.18 to P.21, produced two income tax return forms marked as Ex.P.22 and P.23, produced notarized copy of course completion certificate marked as Ex.P.24, produced notarized copy of one SSLC marked card and one PUC marks card marked as Ex.P.25 and P.26, produced notarized copy of Engineering Marks cards marked as Ex.P.27 to P.36, produced one degree certificate marked as Ex.P.37, produced notarized copy of one M.Sc. Degree certificate marked as Ex.P.38, produced notarized copy of ration card marked as 11 SCH-19 MVC.160 / 2015 Ex.P.39. In the cross-examination, the respondents nothing has been eliciting about the accident and also denial of rash and negligent driving of the offending vehicles.
14. One witness Jose Mathew examined as PW.2 and he has filed the affidavit in lieu of chief examination. In his chief affidavit, he has deposed that, he is working in the Tegile System Private Limited as HR Manger and further he has deposed about the appointment of the deceased in the Company and also he has drawn the salary and the Company was settled full and final settlement to his family and produced total 4 salary slips of the deceased and also produced one full and final settlement statement documents marked as Ex.P.40 to P.46 and also produced another 3 income tax return forms marked as Ex.P.47 to Ex.P.49, produced one appointment letter and one increment letter marked as Ex.P.50 to P.51. In the cross-examination, the respondent counsel only to eliciting with regarding the payment of the deceased, but nothing has been eliciting about the denial of the accident.
15. Respondent side one witness Vidyanand Tejaswi examined as RW.1. He is the I.O in the said case and he has deposed about the registering the criminal case and 12 SCH-19 MVC.160 / 2015 accident occurred due to the rash and negligent driving of the offending vehicles. Even though, the respondents examined the said witness, but they have not denied the accident and also nothing has been deposed about the accident sole negligence of the deceased. Further he has deposed about submitting of charge sheet against the drive of offending vehicle.
16. Another one witness Smt.Vasundara Rastogi examined as RW.2 and filed the affidavit in lieu of chief examination. In her chief affidavit, she has repeated the averments of the written statement submitted by the respondent No.4 and further produced one insurance certificate-cum-policy marked as Ex.R.2, produced one true copy of spot sketch and IMV report marked as Ex.R.3 and R.4, certified copy of the DL and B-extract marked as Ex.R.5 and R.6, produced one office copy of the letter with postal receipts marked as Ex.R.7. But in the cross-examination, they have not denied the accident and involvement of two vehicles in the said accident and also dashed the Motor cycle of the deceased.
17. Another one witness Sri. Karthik .M examined as RW.3 is the Deputy Manager of Legal of 2nd respondent and he has filed the affidavit in lieu of chief examination. In his chief affidavit, he has deposed that the 2nd 13 SCH-19 MVC.160 / 2015 respondent has not issued the policy of insurance in favour of 1st respondent in respect of Tata Ace vehicle bearing No.KA-13-A-5182 for a period from 30.03.2014 to 29.03.2015. Hence the insurance Company is not liable to pay the compensation and produced one attested copy of the policy marked as Ex.R.8, but they have not denied the accident.
18. The counsel for the petitioner argued that, the accident occurred due to the sole rash and negligent driving of the Tata Sumo vehicle bearing No.KA-41-A- 3034 and also there is a composite negligence occurred by the two vehicles and there is no any rash and negligent driving of the deceased vehicle and the both vehicles are liable to pay the compensation. The counsel for the respondent No.4 argued that, the main fault and negligent driving is on the part of the driver of Tata Ace vehicle and the driver of the Tata Sumo has not drove the same in a rash and negligent. Hence they prays for dismiss the petition.
19. I have perused the documents produced by the petitioners it appears that, the Whitefield Traffic Police have registered the case in Crime No.193/2014 for the offences punishable U/Sec. 279, 304(A) of IPC and 14 SCH-19 MVC.160 / 2015 Section 187 of IMV Act against the driver of the Tata Ace vehicle bearing No.KA-13-A-5182 and driver of Tata Sumo bearing No.KA-41-A-3034 on the basis of the complaint lodged by the complainant. After submitting the FIR, the police have conducted the spot mahazar and prepared the rough sketch of the accident took place and also seized the both vehicles. After inquest and received the PM report and also IMV report, completion of the investigation, the I.O has submitted the charge sheet against the drivers of the vehicles bearing No.KA-13-A- 5182 and vehicle bearing No.KA-41-A-3034. The police have alleged that on 29.12.2014 at about 10.30 a.m., near L and T Company Junction, the driver of the Tata Ace bearing Reg. No.KA-13-A-5182 drive in a rash and negligent manner came with high speed from Marriot Hotel and dashed the Motor cycle of the deceased, as a result, the deceased was fell down, when the Tata Sumo bearing No.KA-41-A-3034 has ran away and dashed the deceased, as a result, the deceased was sustained grievous injury and succumbed due to the injuries at the time of shifting to the hospital. Though the respondents have denied the rash and negligent driving of the offending vehicles, but they have not denied the accident. Further nothing has been elicited in the cross- examination about the denial of the accident. After 15 SCH-19 MVC.160 / 2015 perusal of the mahazar and spot sketch, it disclosed that when the rider of the Motor cycle was stopped near the junction, the driver of the Tata Ace was came with an high speed and dashed the Motor cycle, as a result, the rider of the Motor cycle fell down, at that time the Tata Sumo vehicle has came at opposite side and dashed the rider of the Motor cycle. Therefore it is clear that, the accident occurred due to the sole negligent driving of the both vehicles. The respondents have not examined the driver of the both vehicles, hence, an adverse inference drawn against the rash and negligent driving of the both vehicles. Further it is pertain to note that, the respondents have not challenged the complaint and also charge sheet submitted by the I.O. and the respondents have not denied the spot mahazar and rough sketch. The respondents have failed to prove that, the accident was occurred due to the rash and negligent riding of the deceased. Under such circumstances, it is proved that the driver of the offending vehicle Tata Ace bearing No.KA-13-A-5182 drove in a rash and negligent manner and dashed the Motor cycle of the deceased as a result, the deceased was fell down at the same time another one vehicle Tata Sumo bearing No.KA-41-A-3034 driven by its driver in a rash and negligent manner and dashed the said Motor cycle, as a result, the rider of the Motor cycle 16 SCH-19 MVC.160 / 2015 was sustained grievous injuries and succumbed to the injuries at the time of shifting the hospital. Hence, I given the answer to the Issue No.1 in the Affirmative.
20. Issue No.2 & Additional Issue: These two issues are inter connected and inter related with each other, hence they are taken up together for common discussion to avoid repetition of facts.
21. The Petitioners claiming compensation amount of Rs.10,00,00,000/- with respect to death of Sri.Senthil Nathan.V. in a road traffic accident. The Petitioners have stated that, due to sudden death of the deceased they have lost love, affection and companion of the deceased. Further they were undergoing great mental shock, agony and hardship. The deceased was the sole bread earner of the family, hence prayed to grant the compensation.
22. As per the Petition, deceased is aged about 33 years. The Petitioners have produced Notarized copy of the Passport and S.S.L.C. marks card of the deceased, which is marked at Ex.P16 and P25. On perusal of said documents which disclose the date of birth of the deceased as 17-09-1981. So, the age of the deceased is 17 SCH-19 MVC.160 / 2015 taken into consideration at the time of accident is 33 years. Then the proper multiplier is 16.
23. The Petitioners stated that, Prior to the accident deceased was hale, healthy and aged about 33 years, and he was Engineer by Profession, at Tegile Systems Pvt. Ltd., Whitefield, Bangalore and earning Rs.26,00,000/- per annum and he used to contribute entire income for maintenance of his family. To prove this fact, the Petitioners have produced Appointment letter of the deceased issued by Tegile Systems Pvt. Ltd., Whitefield, Bangalore, which is marked at Ex.P18. Which disclose that, the deceased was appointed as "Senior Software Engineer " on a gross salary of Rs.9,00,000/- p.a. They have also produced 3 Pay slips of the deceased, which are marked as Ex.P19 to 21. Ex.P21 pay slip for the month of Nov-2014 disclose the total earning of the deceased was Rs.2,14,867/- and Net pay was Rs.1,87,052/-. Further they have produced Form No.16 of the deceased which is marked as Ex.P22 and 23. Further the Petitioners have also produced one Course completion Certificate issued by Kalpataru Institute of Technology, Tiptur, which is marked as Ex.P24. Which disclose that the deceased has completed the B.E. degree course in Computer Science and Engineering in the year 1999- 18 SCH-19 MVC.160 / 2015 2003. Further the Petitioners have also produced Notarized Marks card copies of SSLC, PUC and Engineering which are marked as Ex.P25 to 36. They have also produced Notarized copy of Bachelor of Engineering Certificate, which is marked as Ex.P37.
24. The Petitioners have examined one witness Sri.Jose Mathew as Pw.2, who is H.R. Manager of the deceased company. He has produced 4 Pay slips of the deceased which are marked as Ex.P42 to 45. He has also produced one letter of full and final settlement, which is marked as Ex.P46. Further produced Form No.16 marked as Ex.P.47 to 49. He has also produced Appointment letter of the deceased marked as Ex.P50 and Increment letter copy which is marked as Ex.P51. In the cross examination the counsel of the Respondents nothing has been eliciting about the denial of the appointment of the deceased in the Tegile Systems Pvt. Ltd., Whitefield, Bangalore and earned the salary more than Rs.17,00,000/- p.a. in the year 2014-15. After perusal of Ex.P.45 pay slip for the month of December 2014 disclose the total earning of the deceased was Rs.2,14,867/- and Net pay was Rs.2,14,003/-. But, as per the income tax returns certificate Ex.P.22 and 23, are disclose that the deceased was declared the amount of 19 SCH-19 MVC.160 / 2015 Rs.13,48,000/- as his total income in the year 2012-13 and in the year 2013-14 amount of Rs.17,50,871/-. The Respondents have not denied the income tax assessment. Therefore it is clear that, the deceased was one of the Income tax payee and he was the Senior Software Engineer. The Respondents have not denied the Qualification certificates of the deceased.
25. The counsel for the Respondent argued that, the deceased company was paid the compensation amount to the legal heirs of the deceased as full and final settlement. Hence, same is to be deducted in the compensation amount. The counsel for the Petitioner has argued that the amount received by the claimants under the group insurance policy and also full and final settlement amount paid by the company, can not be deducted from the compensation payable under the Motor Vehicles Act. In support of their argument, they have relied the Judgment of Hon'ble Supreme Court of India in the case of Vimala Kanwar and others V/s Kishore Dan and others, reported in 2013 ACJ 144, in which it is held that:-
Quantum deductions: Provident fund, pension and insurance - Whether amount received under Provident Fund, pension and insurance are pecuniary advantage within the 20 SCH-19 MVC.160 / 2015 periphery of M.V. Act and are liable for deduction - held: No. Quantum - Deductions - Compassionate employment - whether amount received as salary on compassionate employment of any dependent of the deceased is liable for deduction while determining compensation under M.V. Act - Held : No. Compassionate appointment cannot be termed as pecuniary advantage.
Quantum - deductions - Income Tax -
Whether Income tax is liable to be deducted while determining compensation under M.V. Act
- Held : Yes. Starting point for calculating compensation is generally the actual income of the deceased less income tax.
26. Further the Petitioner's counsel relied the another judgment of Hon'ble Supreme Court of India, in the case of National Ins. Co. ltd., V/s Rekha Ben and others, reported in 2017 ACJ 2051, in which it is held that:-
Quantum - deductions - Employment on compassionate ground - whether amount of salary earned by claimants from compassionate employment given by employer of the deceased / permanently disabled injured to any dependent can be deducted from the quantum of compensation receivable by them under M.V. Act - Held : No : Loss of income would not be set off. Because of claimants earning their living: Source from which compensation on account of accident is claimed and the source from which compassionate employment is offered is completely separate and there is no correlation between these two sources.
21 SCH-19 MVC.160 / 2015
27. Further the Petitioner's counsel relied the Judgment of Hon'ble High Court of Karnataka, Bengaluru in the case of Rajeshwari .G. Bhuyar & others, V/s Sindhu Travels and another, in which it is held that:-
"It is abundantly clear that any amount received by claimants towards provident fund, pension and life insurance on account of victim's death is not liable for deduction from out of the compensation computed under the M.V. Act."
28. In the Judgment of Hon'ble Supreme Court of India in the case of Manasvi Jain V/s Delhi Transport Corporation and others., reported in 2014 ACJ 1416, in which it is held that, Quantum - Deductions - Deductions on account of GPF, House Rent, Insurance Premium, etc are admissible for computing net income of the deceased for the purpose of assessment of dependency of the claimants - Held : No :
Deduction towards income tax / Surcharge should be considered to arrive at net income of the deceased.
29. Further, in the Judgment of H'onble High court of Punjab and Hariyana, in the case of Noorddin & another, V/s Mohammed Haroon & others, reported in 2017 ACJ 1158, in which it is held that, 22 SCH-19 MVC.160 / 2015 Quantum - Deductions - Life Insurance - Tribunal deducted Rs.1,00,000/- received by claimants on account of death of their son Rajiv Gandhi Bima Yojna and awarded compensation
- Whether the Insurance amount received by the claimants is to be taken into consideration while assessing compensation - Held : No : Insurance Company cannot get its liability reduced because the deceased's family is entitled to financial assistance from an alternative source. It is accruing only by reason of the death of the deceased and not because he died in a Motor Accident.
30. Therefore, in view of observation made by the Hon'ble Supreme Court of India and Hon'ble High courts in the above cited Judgments this tribunal is not deducted any group Accident insurance claim amount and also not deducting any full and final settlement amount paid by the company. Though the Respondents have denied the said income tax return form, but for the purpose of disproving the said income tax payable on the total income by the deceased, the Respondents have not produced any documents. After perusal of the appointment Order and also pay slips of the deceased given by the company it is clear that the deceased was working as the Senior Software Engineer and drawn the salary more than Rs.17,00,000/- per year. There are no any contradictions to disbelieve and suspected the said 23 SCH-19 MVC.160 / 2015 income tax return forms. In the tax return form the deceased was paid the tax amount of Rs.3,65,919/-. Under such circumstances, considering the income tax returns and also pay slip of the deceased, this tribunal has taken into consideration reasonable income of the deceased at Rs.17,50,871/- per year. After deducting the income tax amount of Rs.3,65,919/- in the total income of the deceased, this tribunal has taken the income of the deceased at Rs.13,84,952/- per annum.
31. With regard to the loss of future prospectus is concern, the Apex court in the earlier Judgment reported in 2013 ACJ 1403 (Rajesh & Ors Vs Rajbir Singh & Ors) also taken note of the fact that, self employed persons are also entitled for future prospectus and the said Judgment was referred to larger bench and the Apex court in the recent judgment passed in 2017 ACJ 2700 SC in the case of National Ins., com. Ltd., V/.s Pranay sethi and others, held that, "In case the deceased was self employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 year. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years, should be regarded as 24 SCH-19 MVC.160 / 2015 the necessary method of computation. The established income means the income minus the tax component"
Here the defendant was aged about 33 years, hence the Petitioners are entitled for future prospectus.
32. It is pertinent to note that, the 1st Petitioner is the Wife, Petitioner No.2 is the Daughter of the deceased. Further, the Petitioner No.3 and 4 are aged parents of the deceased. Here, the Pw.1 has not stated anything about working of her father-in-law. On perusal of cause title of the Petition, which disclose the age of the Petitioner no.4 as 62 years. Petitioner No.3 and 4 are old aged parents of the deceased and they have no any source of income as independently. Hence, the Petitioner No.1 to 4 are considered as dependants on the income of deceased. So, relying upon the decision reported in 2009 ACJ 1298 (Sarla Varma and others - Vs- Delhi Transport Corporation & another), out of the salary of the deceased 1/3rd has to be deducted towards the personal expenses of the deceased.
a) Income of deceased is taken at Rs.13,84,952/- p.a.
b) 40% of future prospectus added to the income of deceased: 13,84,952/- + 5,53,980/- = Rs.19,38,932/-.
25 SCH-19 MVC.160 / 2015
c) Deduction towards personal expenses; Rs.19,38,932/-- Rs.6,46,310/- (1/3 )= Rs.12,92,622/-
rd p.a. Therefore this tribunal has taken income of the deceased at Rs.12,92,622/- p.a. Which comes as under:-
Rs.12,92,622/- X 16 = Rs.2,06,81,952/-
Hence, the Petitioners entitled for compensation of Rs.2,06,81,952/- under the head loss of dependency.
33. Here the Petitioner No.1 being wife of the deceased, she has lost her Husband, at age of age of 26 years.
Regarding consortium, this tribunal has relied upon the decision reported in 2013 ACJ 1403, in which it is held as, "Words and phrases - Consortium -
Consortium is the right of spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate".
Hence, it is not possible to compensate the love and affection of the deceased with the Petitioner No.1 by compensate any quantum of amount. In this regard, the Hon'ble Supreme Court of India passed in 2017 ACJ 2700 SC (between National Insurance Co. ltd., v/s Pranay Sethi and others.,) held that, 26 SCH-19 MVC.160 / 2015 Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively.
Therefore, in view of the Judgment of Hon'ble Supreme Court of India, and by considering the lost of love, affection and care from her husband, this tribunal has award the reasonable compensation of Rs.40,000/- under the head loss of consortium.
34. Here the Petitioner No.1 is the Wife, Petitioner No.2 is the Minor daughter, Petitioner No.3 and 4 are aged Parents of the deceased, they have lost love, affection and future support of the deceased. Hence, the Petitioner No.1 to 4 are entitled for an amount of Rs.30,000/- each. In total the Petitioners are entitled for Rs.1,20,000/- under the head loss of love and affection,
35. The Petitioners claiming that, they have spent Rs.2,50,000/- towards transportation of dead body, funeral and obsequies ceremonies of the deceased. But they have not produced any document in this respect. Considering the expenses towards funeral and obsequies ceremonies of the deceased and in view of judgment of Hon'ble Apex Court passed in In this regard, the Hon'ble 27 SCH-19 MVC.160 / 2015 Supreme Court of India passed in 2017 ACJ 2700 SC (between National Insurance Co. ltd., v/s Pranay Sethi and others.,) it is just and proper to award a Rs.15,000/- under this head. Further the Petitioners are also entitled for compensation of Rs.15,000/- under the head loss of estate.
36. Considering oral evidence coupled with documentary evidence of Pw.1, it is just and proper to grant compensation as follows:
Sl.
Particulars Amount
No.
1. Loss of dependency Rs. 2,06,81,952-00
2. Loss of consortium Rs. 40,000-00
3. Towards Love and affection Rs. 1,20,000-00
4. Towards funeral and Rs. 15,000-00
obsequies ceremonies
5. Towards loss of estate Rs. 15,000-00
Total Rs. 2,08,71,952-00
The Petitioners are entitled for total compensation of Rs.2,08,71,952/-.
28 SCH-19 MVC.160 / 2015
37. Interest:
Hon'ble Supreme Court in Civil Appeal No.3238/2015 (arising out of SLP (C) 1865/2014 (Chanderi Devi and Anr., Vs. Jaspalsingh & Ors.,) and 2013 AIR SCW 5375 (Minu Rout & Ors vs Sathya Pradyumna Mohapatra & Ors), (2011) 4 SCC 481: (AIR 2012 SC 100) (Muncipal council of Delhi Vs Association of Victims of Uphaar Tragidy and Hon'ble High Court in MFA No.2326/2016 (Annapurna & Ors., G.Ashawathraya & Anr.,) have held that rate of interest shall be @9% p.a., from the date of application till the date of payment. Hence, I hold that the petitioner is entitled for interest @9% p.a., from the date of petition till the date of payment. In view of settled rate of interest, 9% is justified and not on higher side. Accordingly the petitioner is entitled to interest @ 9% pa.,
38. Liability:-
As already discussed above the accident was occurred due to the negligent of both vehicles and it is considered as composite negligence. Here, the Respondent No.1 & 3 are the owners and Respondent No.2 & 4 are the Insurers of the offending vehicles. The counsel for the Petitioner argued that, when there is a composite negligence by the two vehicles they are jointly 29 SCH-19 MVC.160 / 2015 liable to pay the compensation and the Petitioner is entitled to recover the amount from any one of the parties. In support of their argument, he has relied upon one Judgment passed by Hon'ble Supreme Court of India in the case of Pawan Kumar and another V/s Harikrishna Das Mohan lal and others, reported in 2014 ACJ 704, in which it is held that, Negligence - composite negligence - Joint tortfeasors
- Liability of Accident between a jeep and truck coming from opposite directions due to negligence of both drivers resulting in death of two passengers in jeep and third passenger sustained injuries - Truck fled from the spot and its driver /owner / insurance company could not be impleaded - Tribunal found that truck driver alone was responsible for the accident and no compensation can be awarded to the claimants in the absence of parties of the truck - High Court found that both the drivers were responsible for the accident and no compensation can be awarded to the claimants in the absence of parties of the truck - High Court found that both the drivers were responsible for the accident in the ratio of 70:30 for truck driver and jeep driver and made parties of jeep liable to pay 30 percent of the compensation awarded in each claim -
Apex Court observed that this being a case of composite negligence no need for High Court to apportion liability for accident between the two drivers, principle of contributory negligence not applicable -Whether drivers/owners, principle of contributory negligence not applicable -Whether drivers/owners of both the vehicles are jointly and severally liable to pay entire compensation awarded 30 SCH-19 MVC.160 / 2015 and claimants are entitled in enforce the awards against both or any of them.
39. In this regard, this tribunal has relied upon the ruling reported in AIR 2015 SC 2261, (Between Khenyei V/s New India Assurance Co., ltd., and others,) wherein it is observed that, A) MOTOR VEHICLES ACT (59 of 1988), Ss.168, 149 - Compensation - Accident - Composite negligence - - liability of tortfeasors was joint and several -
Claimant can sue both or any one of joint tortfeasors - Claimant can at his option recover entire damages from any one of them - In case both tortfeasors are impleaded and apportionments /extent of their negligence determined by court/tribunal - One joint tort feasor can recover amount from other in execution proceedings.
TORTS - Accident -Composite
negligence - Liability of joint
tortfeasors.
In case of composite negligence the liability of tortfeasors was joint and several. Hence, even if there is non impleadment of one of tortfeasors, the claimant was entitled to full compensation quantified by the Tribunal it is not necessary to implead all joint tortfeasors and due to failure of impleadment of all joint tortfeasors, 31 SCH-19 MVC.160 / 2015 compensation cannot be reduced to the extent of negligence of non impleaded tortfeasors. Non impleadment of one of the joint tortfeasors is not a defence to reduce the compensation payable to the claimant.
Therefore, in view of observation made by the Hon'ble Supreme Court of India, here in this case both the drivers of offending vehicles are liable for equally negligent to the accident. The Hon'ble Apex court observed that, being a case of composite negligence no need for apportion liability for accident between two drivers and the principles of contributory negligence not applicable. Under such circumstances the owners of both vehicles are jointly and severally liable to pay entire compensation amount to the Petitioners and Petitioners are entitled to enforce the award against both or any one of them.
40. As per the Petition, the Respondent no.2 is the insurer of the TATA Ace bearing Reg. No.KA-13/A-5182. But after perusal of the Insurance policy i.e., Ex.R.8 it disclose that the policy validity is expired on 29-03-2013 and the alleged accident was occurred on 29-12-2014. Therefore, the said vehicle's insurance policy was not in force as on the date of the accident and same was 32 SCH-19 MVC.160 / 2015 deposed by the Rw.3 and the Petitioner's counsel nothing has been elicited about the insurance policy of the said offending vehicle was in force as on the date of accident. Hence, the Respondent no.2 was not liable to pay the compensation amount to the Petitioners.
41. Respondent No.1 being owner of Owner of the TATA Ace bearing Reg. No.KA-13/A-5182, and Respondent No.3 is the owner and the Respondent No.4 being Insurer of the vehicle TATA Sumo bearing Reg.No.KA-41/A-3034 are jointly and severally liable to pay the compensation with interest to the Petitioners. Further Respondent No.1 being Owner of TATA Ace bearing Reg. No.KA-13-A-5182 & Respondent No.4 being insurer of the TATA Sumo bearing Reg.No.KA-41/A-3034 are primarily liable to pay the compensation to the Petitioners. Hence, I given the answer to the Issue No.2 in the Partly Affirmative & Addl. Issue in the Affirmative.
42. Issue No.3: After having answered Issue No.1, 2 & Additional Issue, as supra I hold that, the petition filed by the petitioner is fit to be allowed in Part. In the result, I proceed to pass the following:-
33 SCH-19 MVC.160 / 2015 ORDER The claim petition filed under Section 166 of the Motor Vehicles Act is hereby Partly allowed with cost as hereunder.
Petition against Respondent no.2 is here dismissed.
The Petitioners are entitled for total compensation amount of Rs.2,08,71,952/- with interest @ 9% p.a., from the date of petition till its realization.
The Respondent No.1, 3 and 4 are jointly and severally liable to pay aforesaid compensation amount to the Petitioners. Further, Respondent No.1 being owner of Owner of the TATA Ace bearing Reg. no.KA-13- A-5182 and the Respondent No.4 being Insurer of the vehicle TATA Sumo bearing Reg.No.KA-41/A-3034, are directed to deposit the compensation amount together with 9% interest within Sixty days, from the date of this order.
The Petitioner No.1 is entitled for compensation of Rs.1,08,71,952/- with interest. The, Petitioner No.2 is entitled for compensation of Rs.80,00,000/- with interest.
Further Petitioner No.3 & 4 are entitled for compensation of Rs.10,00,000/- each, with interest.
34 SCH-19 MVC.160 / 2015 After deposit, out of total compensation amount 60% with interest shall be released in favour of the Petitioner No.1, 3 and 4 with proper identification and the remaining amount of 40% shall be deposited in the names of Petitioner No.1, 3 and 4 in F.D., in any nationalized bank, for a period of Three years, with a liberty to withdraw accrued interest periodically.
Entire compensation amount with interest awarded in favour of Petitioner No.2, shall be kept in F.D. in the name of Petitioner No.2, in any nationalized bank at the choice of Petitioner No.1, for a period of Five years with a liberty to withdraw accrued interest periodically.
Advocate fee is fixed at Rs.1,000/-. Draw award accordingly.
(Dictated to the Stenographer transcribed and computerized by him, then corrected by me and pronounced in open court on this the 5th day of April 2018) (DYAVAPPA. S.B.) XV ASCJ & Member, MACT, Court of Small Causes, Mayo Hall Unit, Bengaluru.
A N N E X U R E:
List of witnesses examined for Petitioner:
Pw.1 : Smt. Sindhu
Pw.2 : Sri. Jose Mathew.
35 SCH-19
MVC.160 / 2015
List of documents marked for Petitioner:
Ex.P1 : Copy of FIR Ex.P1(a) : Copy of complaint, Ex.P2 : Copy of mahazar Ex.P2(a) : Copy of Rough sketch, Ex.P3 : Copy of PM report, Ex.P4 : Copy of Inquest report, Ex.P5 : Copy of IMV report, Ex.P6 : Copy of Notice U/sec. 133 of MV Act Ex.P7 : Copy of Reply to Notice U/sec. 133 of MV Act Ex.P8 : Copy of Notice U/sec. 133 of MV Act Ex.P9 : Copy of Reply to Notice U/sec. 133 of MV Act Ex.P10-11 : Copies of Indemnity bond, Ex.P12 : Copy of Charge sheet, Ex.P13 : Copy of Notarized copy of marriage certificate, Ex.P14 : Copy of Notarized copy of Aadhaar card of Petitioner No.1, Ex.P15 : Notarized copy of birth certificate, Ex.P16 : Notarized copy of passport, Ex.P17 : Notarized copy of Aadhaar card of the deceased. Ex.P18 : Appointment letter of the deceased, Ex.P19-21 : 3 salary slips, Ex.P22-23 : Two income tax return forms, Ex.P24 : Course completion certificate, Ex.P25 : Notarized copy of SSLC marks card, Ex.P26 : Notarized copy of PUC marks card, Ex.P27-36 : Notarized copies of Engineering Marks cards of the deceased, Ex.P37 : Notarized copy of Bachelor of Engineering Convocation certificate, Ex.P38 : Notarized copy of M.Sc. Degree certificate, 36 SCH-19 MVC.160 / 2015 Ex.P39 : Notarized copy of ration card, Ex.P40 : Authorization letter, Ex.P41 : Notarized copy of ID card, Ex.P42-45 : 4 salary slips, Ex.P46 : Copy of full and final settlement statement,
Ex.P47-49 : 3 income tax return forms, Ex.P50 : Copy of Appointment letter Ex.P51 : Copy of Increment letter.
List of Witnesses examined for Respondent:
Rw.1 : Sri..L.Vidhyanand Tejaswi.
Rw.2 : Smt.Vasundhara Rastogi. Rw.3 : Sri. Karthik. M.
List of Documents marked for Respondent:
Ex.R1 : Copy of full and final settlement Statement & Authorization letter.
Ex.R2 : Copy of Insurance policy, Ex.R3 : Copy of Spot sketch, Ex.R4 : Copy of IMV report, Ex.R5 : Copy of D.L. Ex.R6 ; Copy fo B. register extracts, Ex.R7 : Office copy of letter dt: 12-06-2017
issued to the owner with Postal receipt. Ex.R8 : Attested copy of Insurance policy.
(DYAVAPPA. S.B.) XV ASCJ & Member, MACT, Court of Small Causes, Mayo Hall Unit, Bengaluru.