Bangalore District Court
Sushama.B.R vs Takasage Engine on 20 April, 2024
KABC020259542018
IN THE COURT OF XIII ADDL. SMALL CAUSES AND ACMM
AND ADDL. MACT., BENGALURU, (SCCH-15)
PRESENT: Smt. KUMARI SUJATHA.
B.Com., LL.B.,
XIII Addl. Small Causes Judge,
ACMM, Court of Small Causes
& Member,MACT15, Bengaluru.
MVC No.6328/2018
Dated this the 20th day of April 2024
Petitioners: 1. Sushma B.R
W/o Madhusudhan H S @ Madhu,
Aged about 25 years,
R/at No.155/156,
Kangunte, Opp to B.R. Ambedkar
College, Malathalli, Bengaluru - 560 056.
2. Hombalamma,
W/o Shankaraiah,
Aged about 47 years,
R/at No.72, Harisave,
Channapatna, Hassan District.
3. Adhya,
D/o Madhusudhan,
Aged about 3 years,
SCCH 15 2 MVC No.6328/2018
Rep. By natural guardian
Petitioner No.1, Mother.
(By Sri. B.B. Ballari, Adv.)
Versus
Respondents : 1) Deleted
2) Iffco Tokio General Insurance Co. Ltd.,
Regional Office, Sri. Shanthi Towers,
No.141, 5th floor, 3rd main,
East to NGEF Layout,
Kasturinagar, Bengaluru 560 043.
(Policy No.13G6E52N P400,
No.91807410, valid from 01.04.2015
to 31.03.2016.)
(By Sri. B.T. Rudra Murthy, Adv.)
3) Mr. Hirokote Yaegashi,
S/o Kinji Yaegashi,
Major in age,
Managing Director of
M/s Takasago Engineering India
Pvt. Ltd., No.442, 2nd floor, 17th cross,
Sector IV, HSR Layout,
Bengaluru - 560 102.
(By Sri. Shyam Sundar H.V, Adv.)
*****
SCCH 15 3 MVC No.6328/2018
:JUDGMENT:
This Claim Petition is filed by the Petitioners against Respondents under Section 163A of the Motor Vehicles Act seeking Compensation of Rs.20,00,000/ for the death of Madhusudhan @ Madhu S/o Shankaraiah in a Road Traffic accident.
2. The substance of averments made in the Petition is as under:
The deceased Madhusudhan @ Madhu was working as a driver in an Innova Car bearing Reg.No.KA01MK5864. As per the instruction of the 1st Respondent on 06.09.2015 at about 3.00 p.m., the Madhu was driving the Innova Car along with others namely Kumar, Sridhar and Lokesh. He was driving the vehicle on extreme left side on Harisandra, Nuggehalli State Highway by observing the traffic rules and regulations and while he reached near Belagihalli gate, Harisave hobli, C.R. Patna, Hassan, lost control and dashed against the right side standing Banyan tree and casued the SCCH 15 4 MVC No.6328/2018 accident. Due to which, the Madhusudhan and other inmates of the car had sustained grievous injuries to all over the body.
Immediately, after the accident, deceased Madhusudhan was shifted to Harisave government hospital in an ambulance, wherein even after better treatment he was succumbed to injuries. Thereafter, postmortem was conducted and dead body was handed over to the Petitioners. The Petitioners had spent huge amount towards hospital charges and funeral expenses.
3. Prior to the date of accident, said Madhusudhan @ Madhu was hale and healthy and he was working as a Driver in Innova Car bearing Reg.No.KA01MK5864 belonging to the 1st Respondent and he was drawing a salary of Rs.350/ per day with other bata and working as a school bus driver for that he was earning Rs.1,200/ per month and he used to drive rented auto during free time and getting Rs.500/ per day. Due to the death of deceased Madhusudhan the Petitioners life become miserable and put to great finance SCCH 15 5 MVC No.6328/2018 hardship. Further, it is averred that in this connection, the Petitioners have filed claim petition before Employees Compensation Tribunal, Bengaluru, SCCH - 11, Bengaluru in ECA No.139/2015. But, the said claim petition was dismissed by the Judgment dated 07.02.2018. The Respondent No.1 is the insurer and the Respondent No.2 is the owner of the Innova Car bearing Reg.No.KA01MK5864. Therefore, both the Respondents are jointly and severally liable to pay compensation to the Petitioners.
4. In pursuance of service of notice to the Respondents, initially, the Respondent No.1 and 2 appeared before the Court and filed their Objection Statement. In the Objection Statement, Respondent No.1 has contended that, the claim petition filed against it is not maintainable, as the said vehicle was owned by Mr. Hirotake Yaegashi and said Hirotake Yaegashi was Managing Director of M/s Takasago Engineering India Pvt. Ltd., It further contended that the said vehicle was purchased and owned by Mr. Hirotake yaegashi SCCH 15 6 MVC No.6328/2018 and no point of time the said vehicle was owned by the Respondent No.1 Company. Therefore, it has prayed to dismiss the petition against it.
5. The Respondent No.2 has filed his Objection Statement and Additional Objection Statement interalia denied the age, avocation and income of the deceased Madhusudhan and also contended that as per the document, the owner of the offending vehicle is Mr. Hirotake Yaegashi. Further it contended that, the Respondent No.2 is the the insurer of the Innova Car bearing Reg.No.KA01MK5864 which was issued in favour of Hirotake Yaegashi. Further it contended that, the Petitioners have filed ECA No.139/2018 for compensation for the death of Sri. Madhusudhan and Tribunal has dismissed the ECA Petition filed by the Petitioners U/s 22 of Employees Compensation Act, 1923 on merits. Further it contended that, the claimants were admitted in the claim petition that deceased Madhusudhan's income was Rs.30,000/ per month and the same contention admitted in the ECA No.139/2015 SCCH 15 7 MVC No.6328/2018 also. Since, his income is more than the income of Rs.40,000/ per annum, which was fixed in Sec.163A of MV Act, his Lrs cannot claim under the Sec.163A of MV Act and same is not permissible under law. On these grounds the Respondent No.2 has prayed to dismiss the Petition against it.
6. At this juncture, it is to be noted here that on the Application filed by the Petitioners, the Respondent No.1 was deleted and the owner of the offending Innova Car bearing Reg.No.KA01MK5864 was impleaded as Respondent No.3 and amendment was carried out and amended petition was filed by impleading the Respondent No.3.
In pursuance of service of notice to the Respondent No.3, he has appeared before the Court through his Counsel and filed Objection Statement and denied the age, avocation and income of the Petitioner and the accident caused by the offending car and also the death of the deceased due to the said accident and he has prayed to dismiss the petition against him.
SCCH 15 8 MVC No.6328/2018
7. On the basis of the rival pleadings, my Learned Predecessor has framed the following Issues.
ISSUES
1. Whether the Petitioners prove that deceased Madhusudhan @ Madhu S/o Shankaraiah sustained injuries due to rash and negligent act of driving of Innova Car bearing Reg.No.KA01MK5864 dated 06.09.2015 at about 3.00 p.m., and succumbed to injuries?
2. Whether the Petitioners prove the age and earnings of the deceased as stated in the claim petition?
2. Whether the petitioners prove that they are the legal heirs of deceased Madhusudhan @ Madhu S/o Shankaraiah?
3. Whether the Petitioners are entitled for compensation? If so, what is the quantum? From whom?
SCCH 15 9 MVC No.6328/2018
4. What Order or Award?
This Tribunal on 12.12.2022 has also framed Recasted issue No.1 as under:
RECASTED ISSUE
1) Whether the Petitioners prove that Sri.Madhusudhan @ Madhu S/o. Shankaraiah was died in the Road Traffic Accident that occurred on 06.09.2015 at about 3.00 p.m., near Belasihalli Gate, Nuggehalli, Harisave Hobali, Channarayapatana, Hassan District, due to the involvement of vehicle i.e., Innova Car bearing Regn. No.KA01MK5864 ?
8. In order to substantiate the case of the Petitioners, the Petitioner No.1 got examined herself as PW.1 and got marked 12 documents at Ex.P.1 to 12 and closed her side evidence. On the other hand, Respondent No.2 has examined one witness as RW.1 and got marked 3 documents at Ex.R1 to 3 and closed its side evidence. Respondent No.3 did not choose to lead evidence.
SCCH 15 10 MVC No.6328/2018 During the stage of arguments, the Learned Counsel for Petitioners has relied following decisions:
1. Civil Appeal No.2816/2018, between Shivaji and another Vs. Divisional Manager, United India Insurance Co.Ltd., and others.
2. 2016 SCC Online HP 2224/2017 ACJ 2186 : (2018) 1 TAC 789, between Oriental Ins. Co.Ltd., Vs. Sihnu Ram and others.
On the other hand, the Learned Counsel for Respondent No.2 has relied following decisions:
1. 2009 ACJ 2020, between Ningamma and another Vs. United India Ins. Co.Ltd.,
2. MFA No.658/2010 (MV), between The Branch Manager, Oriental Ins. Co. Ltd., Vs. M. Dinesh & another.
9. Having heard the arguments by the learned Counsels for both sides and upon perusal of the depositions, documents exhibited, decisions relied on and materials SCCH 15 11 MVC No.6328/2018 available on record, my answer to the above Issues are as under:
Issue No.1 : In the Affirmative ReCasted Issue No.1 : In the Affirmative Issue No.2 : In the Affirmative Issue No. 3 : Negative Issue No. 4 : As per the Final Order for the following :
REASONS
10. Issue No.1 to 3 and Recasted Issue No.1: All these Issues are taken together for common discussion as they are interlinked with each other and to avoid repetition of facts.
It is the case of the Petitioners that the husband of the Petitioner No.1 i.e., Madhusudhan @ Madhu was died in the Road Traffic Accident that occurred on 06.09.2015. On the other hand the Respondent No.2 and 3 have denied the accident.
SCCH 15 12 MVC No.6328/2018
11. In the Petition U/s 163A of MV Act, the Petitioner need not prove Negligence. When the Petitioner filed petition u/s 163A of MV Act, the Tribunal need not consider whether the accident happened due to actionable negligence or not. It would suffice, if the Petitioners prove that the accident had occurred by the use of the vehicle.
12. In order to prove the case of the Petitioners, the Petitioner No.1 got examined herself as PW.1 and got marked 12 documents at Ex.P1 to 12 and she has reiterated the petition averments in her chief affidavit. On the other hand, the Respondent No.2 got examined its Legal Manager by name Narendran as RW.1 and got marked 3 documents at Ex.R1 to
3. Ex.P1 to 12 are the Certified copies of FIR, Complaint, Spot mahazar with Spot sketch, IMV report, Inquest mahazar, PM report, Charge sheet, Aadhaar cards, Voter ID, DL and Ration card.
SCCH 15 13 MVC No.6328/2018
13. Upon going through the Certified copies of Ex.P1 & 2 i.e., the True copies of the FIR & Complaint which shows that on the Complaint lodged by one Manjunatha S/o Mariyappa, the Hirisave Police have registered the case against the Madhusudhan @ Madhu for the offences punishable under Sec. 279 and 337 of IPC. Ex.P.3 is the true copy of Spot Mahazar with Spot sketch which shows that the concerned police had drawn mahazar at the spot in the presence of panchas. Ex.P.4 is the IMV report which shows that the said accident does not occurred due to any mechanical defects of the vehicles. Ex.P5 is the Inquest mahazar of the deceased Madhu. Ex.P6 is the PM report which shows the cause of death is due to injury to vital organ, brain and haemorhagic shock. Ex.P.7 is the True copy of the Charge sheet which shows that, after thorough investigation, the I.O has submitted abated Charge sheet against the deceased Madhu for the offences punishable under Section 279, 337 and 304(A) of IPC.
SCCH 15 14 MVC No.6328/2018
14. PW.1 has subjected for the crossexamination by the Learned Counsel for the Respondent No.2. In the cross examination nothing could be elicited to disprove the contention of the PW.1 in respect of the accident. PW.1 admitted in her crossexamination that except the car driven by her husband, no other vehicle was involved in the said accident. Further she deposed that she does not know against whom the I.O has filed Chargesheet. The Chargesheet is the material document which is filed against the deceased Madhu, who is the husband of PW.1. But, this petition is filed U/s 163A of IMV Act, wherein this Tribunal only to consider that the accident has occurred by the use of the vehicle. The Abated Charge sheet was filed against the husband of the PW.1. Therefore, this Tribunal is of the opinion that said accident has occurred by the use of the Innova Car bearing Reg.No.KA01MK5864.
15. It is stated in the Petition that the Petitioner No.1 is the wife, Petitioner No.2 is the mother and the Petitioner No.3 SCCH 15 15 MVC No.6328/2018 is the daughter of the deceased. In order to prove this fact, PW.1 has produced Aadhaar Card of Petitioner No.1 and 3 and Election ID of deceased and Family Ration card at Ex.P8 to 12, which shows the relationship of the Petitioners with the deceased. Hence, the Petitioner No.1 to 3 are considered as the legal heirs of the deceased Madhusudhan @ Madhu.
16. It is to be noted here that at the initial stage, the Petitioners have filed claim petition under Sec.166 of IMV Act. Subsequently, they have amended the claim petition from Sec.166 of IMV Act to Sec.163A of IMV Act. It is stated in the claim petition that the deceased Madhusudhan @ Madhu was working as a driver under the Respondent No.1 and he was drawing a salary of Rs.350/ per day with other bata and he was also working as a driver at school bus for that he was earning Rs.1,200/ per month and apart from that the deceased was also during vacation and free time used to drive rented auto and getting Rs.500/ per day. In the evidence also SCCH 15 16 MVC No.6328/2018 PW.1 has reiterated the petition averments about the salary of the deceased.
17. It is the contention of the Respondent No.2 that the Petitioners had already filed a claim petition claiming compensation under Workmen Compensation Act and same was dismissed. In the said ECA petition also the Petitioners had averred the monthly income of the deceased at Rs.30,000/ per month. In the present case also Petitioners averred that the monthly income of the deceased Madhu was Rs.30,000/ per month which does not comes within the purview of Sec.163A of IMV Act.
18. The Learned Counsel for the Respondent No.2 has also relied on the Judgment of our Hon'ble High Court of Karnataka in MFA No.658/2010 (MV) dated 30.09.2022, wherein the Hon'ble High Court of Karnataka has pleased to discuss the various judgments of the Hon'ble Apex Court i.e., Deepal Girishbhai Soni and others Vs. United India Insurance SCCH 15 17 MVC No.6328/2018 Co., United India Insurance Co., Vs. Anitha and others and pleased to hold that only persons whose annual income is up to Rs.40,000/ can take the benefit of Sec.163A and no other persons and all clients are required to be dealt in terms of Sec.XII of the Act.
19. In the instance case, it is evident that the Petitioners being the wife, mother and daughter of the deceased Madhu initially filed the petition under Sec.166 of MV Act by showing the income of the deceased at Rs.30,000/ per month by working as a driver under Respondent No.1 and as a school bus driver and also during the vacation and free time used to drive rented auto and getting lumpsum amount per day. Subsequently, the Petitioners have converted the same to a petition under Sec.163A of IMV Act. But, they did not change the monthly income of the deceased and the monthly income of the deceased will remained at Rs.30,000/ per month. Hence, the annual income of the deceased comes to Rs.3,60,000/. Hence, this petition is not maintainable under SCCH 15 18 MVC No.6328/2018 Sec.163A of MV Act. Accordingly, the Petitioners are not entitled for the compensation. Accordingly, I answer Issue No.1, 2 and Recasted issue No.1 in the "Affirmative" and Issue No.3 is in the "Negative".
20. Issue No.4: In view of my findings on Issues No.1 to 3 and Additional Issue No.1, I proceed to pass the following:
ORDER The Claim Petition filed by the Petitioners against the Respondents U/S 163A of M.V. Act is hereby dismissed with costs.
Draw Award accordingly.
(Dictated to the stenographer directly on the computer, print out taken by her, corrected, signed and then pronounced by me in the open Court on this the 20th day of April, 2024) (Smt. Kumari Sujatha.) XIII Addl. Small Causes Judge, ACMM,Court of Small Causes & Member, MACT15, Bengaluru.
SCCH 15 19 MVC No.6328/2018
Annexure
Witnesses examined on behalf of the Petitioner :
P.W.1 : Smt. Sushma B.R Documents marked as Exhibits for the Petitioner :
Ex.P1 : FIR Ex.P2 : Complaint Ex.P3 : Spot mahazar, Seizer mahazar with Sketch Ex.P4 : IMV report Ex.P5 : Inquest mahazar Ex.P6 : PM report Ex.P7 : Charge sheet Ex.P8 & 9 : Aadhaar cards Ex.P10 : Election ID Ex.P11 : DL Ex.P12 : Ration card
Witnesses examined on behalf of the Respondent :
RW1 : Sri. Narendran SCCH 15 20 MVC No.6328/2018
Documents marked as Exhibits for the Respondents:
Ex.R1 : Authorisation letter
Ex.R2 & 3 : Copy of Judgment and Award
( Smt. Kumari Sujatha.)
XIII Addl. Small Causes Judge,
ACMM,Court of Small Causes &
Member, MACT15, Bengaluru.
Digitally signed
by SUJATHA
SUJATHA MADHAVA
MADHAVA Date:
2024.04.23
17:32:55 +0530