Bangalore District Court
Smt. Lakshmidevamma vs Sri Lokesh K.N on 30 August, 2022
KABC020214022019
BEFORE THE COURT OF SMALL CAUSES AND
MOTOR ACCIDENT CLAIMS TRIBUNAL, AT
BENGALURU
(SCCH-16)
Present: Sri. Sudeen Kumar D.J.,
B.A., LL.B.,
X Addl. Judge, Court of Small Causes
& Member, MACT, Bengaluru.
MVC No.5039/2019
Dated: 30th August 2022
Petitioner Smt. Lakshmidevamma,
W/o Late Ramappa,
Aged about 69 years,
Residing at No.35, Rayarekalahalli,
Alakapura, Gauribidanur,
Chikkaballapura - 561 213.
(Sri Sunil G., Advocate)
Vs.
Respondents 1. Sri Lokesh K.N.,
S/o Narasimhaiah,
Kannurahalli Main Road,
Bangalore Layout,
Nisarga Water Tank,
Hoskote Town, Bengaluru
Rural District - 562 114.
(RC owner of Maruthi Car
bearing No.KA-53-ME-5303)
(Exparte)
2. TATA AIG General Ins. Co. Ltd.,
No.69, 3rd Floor, J.P. & Devi
Jambukeshwara Arade,
2 (SCCH-16) MVC 5039/2019
Miller's Road,
Bengaluru - 560 052.
(Policy No.015879862600 valid
from 23-09-2018 to
22-09-2019)
(Sri Janardhan Reddy,
Advocate)
JUDGMENT
This petition is filed under Section 166 of M.V. Act, seeking compensation of Rs.20,00,000/- from respondents on account of death of Ramappa, husband of petitioner, in Road Traffic Accident.
2. In brief, petition averments are; that on 17-07- 2019 at about 8.45 p.m., Ramappa was pedestrian on the extreme left side on B.B. Road and after carefully observing the vehicle movements crossing the said road near Kotte Cross, Devanahalli Town, Bengaluru, at that time driver of car, bearing No.KA-53-ME-5303 came from Chikkaballapura towards Bengaluru in a rash and negligent manner, endangering to human life, without observing any traffic rules and regulations and dashed against Ramappa, due to the impact he sustained grievous injuries all over the body and immediately he was shifted to Devanahalli Government Hospital, wherein doctors examined and declared him dead. Earlier to the accident, the deceased was milk vendor and also doing coolie work and earning a sum of Rs.15,000/- per month. But, on account of his untimely 3 (SCCH-16) MVC 5039/2019 death petitioner lost the dependency, love and affection. Hence, this petition for compensation.
3. Despite service of notice, respondent No.1 remained absent and therefore, he was placed exparte.
3(a) Respondent No.2 admitted the issuance of insurance policy in respect of car, bearing No.KA-53-ME- 5303, denied the other petition averments generally and it contended that car was not involved in the alleged accident, deceased was crossing the road that too there was no zebra crossing to cross the pedestrians and met with an accident, the petition is bad for non compliance of provision under Sections 134(C) and 158(6) of M.V. Act and driver was not having valid and effective driving licence to drive the same. Further, it sought for permission to contest even on behalf of respondent No.1 under Section 170(b) of the M.V. Act. For the above denials and contentions it prayed for dismissal of the petition.
4. Based on the pleadings the following issues came to be framed:
1. Whether the petitioners prove that Ramappa succumbed to the injuries sustained in vehicular accident alleged to have occurred on 17-07-2019 due to the rash and negligent driving of the driver of car, bearing No.KA-53-ME- 5303?
2. Whether the petitioner is entitled to compensation? If so, what is the 4 (SCCH-16) MVC 5039/2019 quantum and from whom?
3. What order or Award?
5. In proof of the petition averments, petitioner got herself examined as PW1 and marked documents in Ex.P1 to Ex.P11. Respondent No.2 not led its evidence. Respondent No.1 is exparte.
6. Heard both sides. Perused the pleadings and evidences, on the basis findings on the issues are as under:
Issue No.1 : Partly in the Affirmative Issue No.2 : Partly in the Affirmative Issue No.3 : As per final order for the following REASONS ISSUE No.1:
7. Petitioners led oral as well as documentary evidences. Respondent No.2 did not lead evidence. Respondent No.1 is placed exparte. This is a summary proceedings, so, the sum and substance of the pleadings and evidences are only emphasized. The petitioners need to prove this issue on preponderance of probability as test for proof is preponderance of probability herein. The petition averments and objections are summarized herein above in the brief facts of the case and objections, hence those are not repeated here in avoidance of repetition. Except 5 (SCCH-16) MVC 5039/2019 negligence, the incident, death, involvement of vehicle , insurance of policy and its liability are not in dispute.
8. Regarding negligence is concerned the petitioner relied on police records viz., FIR, spot mahazar, charge sheet, inquest, PM Report, IMV report and draft spot sketch, which are marked in Ex.P1 to Ex.P5, Ex.P9 and 10. The charge sheet/final report filed by the International Airport traffic Police shows the negligence on the part of the driver of Maruthi Brizza car, bearing No. KA-53-ME-5303, the brief facts of the final report read as follows:
"ಕಕಲಲ ನಲ-4 ರಲಲ ನಮಮದಸರರವ ಆರರಮರಪಯರ ಮಕರರತ ಬಬಜಕಜ ಕಕರರ ನಲ: KA-53-ME-5303 ರ ಚಕಲಕನಕಗದರದ ಸದರ ವಕಹನವನರನ ದನಕಲಕಕ 17-09-2019 ರಲದರ ರಕತಬ ಸರಮಕರರ 08-45 ಗಲಟರಯ ಸಮಯದಲಲ ಅಲತರರಕಷಷಷಯ ವಮಕನ ನಲಕದಣ ಸಲಚಕರ ಪಲರಸರ ಠಕಣರ ಸರಹದದಗರ ಸರರರರರವ ಬ.ಬ ರಸರಸಯಲಲ ಚಕಕಬಳಕಳಪಪರದ ಕಡರಯಲದ ಬರಲಗಳಮರರ ಕಡರಗರ ಅತವರರಗ ಮತರಸ ಅಜಕಗರಮಕತರಯಲದ ಚಲಸಕರಮಲಡರ ಬಲದರ ಕರಮರಟ ಕಕಬಸರ ಬಳ ಪಶಶಮದಲದ ಪಪವರದ ಕಡರಗರ ರಸರಸ ದಕಟರತಸದದ ಪಡದಚಕರ ರಕಮಪಪ 60 ವರರ ರವರಗರ ಡಕಕ ಮಕಡದ ಪರಣಕಮ ಪಕದಚಕರ ಎಗರ ಕಕರನ ಮರಲಭಕಗದ ಗಕಲಸರನ ಮರಲರ ಬದರದ ನಲತರ ರಸರಸಯ ಮರಲರ ಬದದದರದ ತಲರ. ಕರಕಕಕಲರಗಳರ ಹಕಗಮ ದರರಹದ ಇತರರ ಭಕಗಗಳಗರ ರಕಸಗಕಯಗಳರ ಆಗದರದ ಗಕಯಕಳರವನರನ ಆಸಪತರಬಗರ ಸಕಗಸರವ ಮಕಗರದ ಮಧರಧ ಮಮತಪಡಲರ ಕಕರಣನಕಗರರತಕಸನರ. 6 (SCCH-16) MVC 5039/2019 ಆದದರಲದ ಸದರ ಆರರಮರಪಯರ ಮರಲಕಲಡ ಕಲಲಗಳ ಪಬಕಕರ ದರಮರಷಕರರಮರರಣರಗರ ಗರರಯಕಗರರತಕಸನರ."
9.The spot mahazar and draft spot sketch depict the spot of occurrence. The sketch revels that in the spot there is no pedestrian cross/ zebra cross, which supports the objection of respondent No.2. Respondent No.2 didn't dispute the other things except the negligence. No eye witness is examined. The IMV report shows there was no mechanical defects in the offending car and damages such as damage of radiator grill, right side headlight assembly, front right side bumper, bonnet, right side wheel fender and windscreen. The postmortem report shows the cause of death was due to shock and haemorrahage as a result of multiple injuries sustained. According to the IMV report there was no mechanical defects in the vehicle in the sense the incident was due to the negligence only. As noted above the drafts spot sketch Ex.P10 specifically shows husband of the petitioner was crossing the road where there was no pedestrian cross/ zebra cross mark to cross the road and which such act was also cause to the incident. If he was not crossed there then the incident could not have been occurred. Similarly if the driver of respondent No.1's car had taken care and caution or he was not drove the car in the rash or negligent manner he could have controlled the car and avoided the incident, but failed. Here being no contrary evidence, 7 (SCCH-16) MVC 5039/2019 here is no impediment to believe the police documents regarding the negligence; at the same time the negligence of the deceased found from the same records cannot be ruled out. Based on the draft spot sketch, the deceased contributed his negligence to the incident, and taking into consideration the same his contributed negligence may be assessed in the extent of 50% and rest of the negligence might be of the driver of respondent No.1's car. In view of this circumstance, the police records give right impression that due to the negligence of the deceased and the rash and negligent driving of the driver of respondent No.1's car the incident occurred.
10. Regarding involvement of insured vehicle is concerned the final report itself speaks, however no contrary evidence by respondent No.2 regarding implication of insured vehicle. Hence, the contention of respondent No.2 regarding implication of insured vehicle remained unestablished.
11. Regarding objections by respondent No.2 as to non compliance of provision under Section 134(c) and 158(6) of MV Act is concerned as the petition reached its finality and the petitioner approached the Tribunal, and this respondent had even taken all the contentions of respondent No.1 and had already contested the 8 (SCCH-16) MVC 5039/2019 matter the giving of permission under Section 170 of MV Act, and discussion on the same now does not arise.
12. It is therefore, for the foregoing reasons, the petitioner is established the incident, death, involvement of the vehicles, and negligence by the driver of the offending car through the documentary as well as oral evidence on preponderance of probability; however from the very same police records the negligence of the deceased which contributed in the incident is found. Wherefore, in the result, the plaint averments regarding Ramappa succumbed to the injuries sustained in vehicular accident, occurred on 17- 07-2019 at about 8.45 p.m., due to the rash and negligent driving of the driver of car, bearing No.KA-53- ME-5303 and negligence of the deceased are established. Hence, this issue is answered partly in the affirmative.
ISSUE No.2:
13. In determination of this issue avocation, income, age of the deceased, dependency and future prospects and other conventional heads for compensation are need to be ascertained.
Avocation :
It is averred that the deceased was coolie and milk vendor and earning a sum of Rs.15,000/- per 9 (SCCH-16) MVC 5039/2019 month. In substantiation of the same no documents are produced. Hence it is not established that the deceased was milk vendor or and doing coolie work. Hence in the present case, the avocation of the deceased is taken to be considered notionally as he had notional income only.
Age:
As per Ex.P7-aadhar card, date of birth of the deceased was 01-01-1947 and so that age of the deceased was 73 years at the time of incident. Hence, it is considered.
Income:
As discussed on the head of avocation, the deceased's avocation taken to be considered notionally. In this regard as per the resolution of hon'ble the Karnataka State Legal Service Authority, dated 17-02-2022 notional income for the year 2019 came to be fixed at 14,000/. In the present case, under the facts and circumstances of the case, Rs.14,000/- is taken to be considered as notional income of the petitioner per month.
Dependency:
As per the petition averments petitioner is wife of the deceased. The dependency is not in dispute. It is therefore, the petitioner is established to be the 10 (SCCH-16) MVC 5039/2019 dependent of the deceased. Ex.P8 - aadhar card proves the identification of the petitioner.
Whereas, for deduction of personal expenses is concerned only 50% is considered to be deducted in the monthly notional income, for the personal and living expenses of the deceased.
Future prospects:
The future prospects is concerned, as the deceased was aged about above 60 years i.e., 73 years at the time of the incident, the petitioner is not entitle for the future prospects on the notational income of the deceased.
Conventional Heads:
As conventional heads, the deceased being husband of the petitioner, spousal consortium is to be considered as the petitioner suffered the loss of love and affection. Hence, in view of the observations made, in the case of United India Insurance Co. Ltd., vs. Satinder Kaur @ Satwinder Kaur and others, in civil Appeal No.2705/2020, by hon'ble the Apex Court, Rs.40,000/- is considered to be awarded as compensation for consortium. The loss of estate is concerned, as the deceased was with the family, if the incident could not have been occurred, he could have been contributed more or less from his savings to the 11 (SCCH-16) MVC 5039/2019 estate of the family; the incident caused such loss to the estate of the petitioner. Hence, Rs.15,000/- is need to be awarded on this head as the principle laid down by hon'ble the Apex Court in National Insurance Co.
Ltd. vs. Pranay Sethi and others, reported in AIR 2017 SC 5157, with funeral expenses of Rs.15,000/- which are just compensation under the conventional head. Hence, those are considered to be awarded.
14. Accordingly, compensation is calculated as under;
Monthly notional income is Rs.14,000/-. Future prospects is not applicable.
For personal and living expenses, after the deduction of 50% the total monthly notional income is Rs.7,000/-.
Net monthly notional income being Rs.7,000/- it is calculated to net annual notional income as Rs.7,000/- x 12 which is = Rs.84,000/-.
Multiplier is 5.
Net annual notional income is multiplied by multiplier 5 which is as Rs.84,000/- x 5 = Rs.4,20,000/-.
15. So, compensation for loss of dependency is found at Rs.4,20,000/- plus compensation on conventional heads such as spousal consortium, loss of estate and funeral expenses.
12 (SCCH-16) MVC 5039/2019
16. The details of compensation proposed to be awarded are as under:
Sl. Head of
Amount/Rs
No. Compensation
1. Loss of dependency 4,20,000-00
2. Loss of spousal 40,000-00
consortium
3. Loss of estate 15,000-00
4. Funeral expenses 15,000-00
Total 4,90,000-00
17. Out of the total compensation 50% should be borne by the petitioner herself on contributory negligence by the deceased. So that, the petitioner is only entitled for compensation of Rs.2,45,000/-, which is of 50% of total compensation only. Keeping in view the interest on the savings by the nationalized banks as well as provided under Section 34 of the CPC, in the present case, from the date of petition only the interest at 6% per annum is considered to be directed till its realization. So, the petitioner is entitled to the interest at 6% per annum on 50% of compensation amount.
Liability:
18. Insurance policy and its validity are admitted and no breaches are established by the insurer. As found on the discussions on issue No.1, the negligence was on the part of the driver of the offending car. On 13 (SCCH-16) MVC 5039/2019 vicarious liability respondent No.1 being the owner is responsible, respondent No.2 being the insurer of respondent No.1 contractually liable to pay compensation. Thus, respondent No.1 and 2 are jointly and severally liable to pay compensation. However, initially respondent No.2 is liable to pay the determined compensation. The petitioner is only entitled to such compensation and not fully as claimed for. Accordingly, this issue stands answered partly in the affirmative.
ISSUE No.3:
19. In view of the findings, the petition deserves to be allowed in part. Hence, the following order is passed:
ORDER The petition is partly allowed with costs.
The petitioner is entitled to compensation of Rs.2,45,000/- (Rupees two lakhs and forty five thousand only) with interest at the rate of 6% p.a., from the date of petition till realisation.
The respondents are jointly and severally liable to pay the award amount. However, the primary liability to pay the compensation amount is fastened on the respondent No.2
-Insurance Company and it is directed
14 (SCCH-16) MVC 5039/2019 to pay the compensation amount within two months from the date of this order.
The entire compensation amount with proportionate interest shall be released to the petitioner through E- payment on proper identification and verification.
Advocate's fee is fixed at Rs.2,000/-. Draw an award accordingly.
(Dictated to the stenographer, directly on computer, typed by him, corrected and then pronounced in the open court this the 30th day of August 2022) (Sudeen Kumar D.J.) Member, MACT, Bengaluru.
ANNEXURE Witnesses examined on behalf of petitioner:
PW1 Smt. Lakshmidevamma Documents marked on behalf of petitioner:
Ex.P1 True copy of FIR
Ex.P2 True copy of Spot Mahazar
Ex.P3 True copy of Charge Sheet
Ex.P4 True copy of Inquest
Ex.P5 True copy of Postmortem Report
Ex.P6 Death Certificate
Ex.P7 Notarized copy of Aadhar card of
Deceased
Ex.P8 Notarized copy of Aadhar card of
petitioner
Ex.P9 True copy of IMV Report
Ex.P10 True copy of Sketch
Ex.P11 True copy of Complaint
15 (SCCH-16) MVC 5039/2019
Witnesses examined on behalf of respondents:
None Documents marked on behalf of the respondents:
Nil (Sudeen Kumar D.J.) Member, MACT, Bengaluru.