Bangalore District Court
In Respect Of Future Expenditures vs No.3 Has Examined His Driver As R.W.2 By ... on 7 September, 2016
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 7th day of September, 2016.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com.,LL.B.(Spl.),L.L.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C.No.4253/2015
1. Sri. Vijay Kumar. V., ..... PETITIONERS
S/o. Velayudam,
Aged about 54 years.
2. Smt. Amala. S.,
W/o. Vijay Kumar. V.,
Aged about 46 years.
3. Kum. Sneha. V.,
D/o. Vijay Kumar. V.,
Aged about 23 years.
All are residing at;
No.173/A, 1st Main,
1st Cross,
Sarvabhowma Nagar,
Chikkakallasandra,
Subramanyapura,
Bangalore-61.
(By Sri. A.S. Girish, Adv.,)
V/s
SCCH-7 2 M.V.C.No.4253/2015
1. Mr. Praveen. K.D., ..... RESPONDENTS
S/o. Dharmegowda. K.M.,
Major in Age,
R/at Konganahalli,
Sakaleshpura,
Hassan District-573 123.
(Insured of Motor Cycle bearing No.KA-
46-J-7291 (KA-09-NT-9270)
2. TATA AIG General Insurance
Company Limited,
2nd Floor, J.P. and Devi,
Chembukesha Archade,
No.69, Millers Road,
Bangalore-57.
(Insurer of Motor Cycle bearing No.KA-
46-J-7291 (KA-09-NT-9270)
3. The Managing Director,
BMTC,
"Sarige Bhavana",
K.H. Road,
Shanti Nagar,
Bangalore.
(Owner of BMTC Bus bearing No.KA-42-
F-1696)
(R1 - By Sri. H.S. Shivakumar, Adv.,)
(R2 - By Sri. Ravi. S. Samprathi, Adv.,)
(R3 - By Sri. K.R. Shivananda, Adv.,)
JUDGMENT
The Petitioners No.1 to 3 have filed the present petition as against the Respondents No.1 to 3 under Section 166 of the Motor Vehicles Act, 1989, praying to award compensation of Rupees SCCH-7 3 M.V.C.No.4253/2015 50,00,000/- with interest from the date of filing of this petition till payment and costs, in respect of death of Sri. Sagar. V. S/o. Vijay Kumar. V.
2. The brief averments of the Petitioners' case are as follows;
a) On 29.08.2015 at about 8.45 a.m., when Sagar. V. was proceeding in his Motor Cycle bearing No.KA-05-JL-8793 on Kengeri-Uttarahalli Main Road from North to South direction at extreme left side of the road, slowly, cautiously by observing traffic rules and regulation and when he reached near Purna Pragya Layout, at that time, a Motor Cycle bearing Temporary Registration No.KA-09-NT-9270 and Permanent Registration No.KA-46-J-7291 by its rider came in a rash and negligent manner with high speed, in a wrong lane, came to his extreme right side of the road and dashed to the Motor Cycle bearing No.KA-05-JL-8793, in which, Sagar. V. was proceeding. Due to the impact of the accident, Sagar was fallen down, at that time, a BMTC Bus bearing No.KA-42-F-1696, which was coming from behind of Motor Cycle bearing No.KA-05-JL-8793 with high speed, without maintaining safe distance and ran over Sagar. V., due to impact of the accident, Sagar. V. sustained fatal injuries all over the body and died on the spot.
b) Body of Sagar. V. was shifted to KIMS Hospital, where, post mortem was conducted and later, body was handed over to SCCH-7 4 M.V.C.No.4253/2015 them. They have spent around Rupees 1,00,000/- towards funeral and obsequies of deceased.
c) 1st Petitioner is a father, 2nd Petitioner is a mother and 3rd Petitioner is a younger sister of deceased. The Petitioner No.2 is still not yet recovered from the shock.
d) Sagar. V. has bright future, he is their only hope as he is their only son and they have spent more than Rupees 10,00,000/- for the education and for all development of their son with fond hope to that, their son to stand in good position in his life, but, unfortunately, before reaping the fruits, the accident has taken his life.
e) The deceased Sagar. V. was brilliant student and he is studying B.E. final year at JSS ATE and apart from studies, he was taking data entry works from companies and also taking tuition classes to the students up to SSLC and earning more than Rupees 15,000/-.
f) The accident is occurred only due to the rash and negligent riding of the rider of Motor Cycle Permanent Registration No.KA-46-J-7291 and Temporary Registration No.KA-09-NT-9270 and the driver of BMTC Bus bearing No.KA-42-F-1696 and Kumar Swamy Layout Traffic Police have registered a case as against the rider of the Motor Cycle Permanent Registration No.KA-46-J-7291 and Temporary Registration No.KA-09-NT-9270 and the driver of BMTC Bus bearing No.KA-42-F-1696 in question.
SCCH-7 5 M.V.C.No.4253/2015g) The deceased was leading much disciplined life throughout and untimely death of their beloved son, has made their life total miserable and the mental pain they are undergoing has no end throughout their life. Hence, they claims a global compensation of Rupees 50,00,000/- from the Respondents. Hence, this petition.
3. In response to the notice, the Respondent No.1 has appeared before this Tribunal through his Learned Counsel. But, initially, inspite of giving sufficient opportunities, the Respondent No.1 had not filed the written statement. Later, as per the Order dated 10.02.2016 passed on I.A.No.I, the written statement filed by the Respondent No.1 is taken on file.
4. In response to the notice, the Respondent No.2 has appeared before this Tribunal through its Learned Counsel. But, initially, inspite of giving sufficient opportunities, the Respondent No.2 had not filed the written statement. Later, as per the Order dated 10.06.2016 passed on I.A.No.IV, the written statement filed by the Respondent No.2 is taken on file.
5. In response to the notice, the Respondent No.3 has appeared before this Tribunal through his Learned Counsel. But, initially, inspite of giving sufficient opportunities, the Respondent No.3 had not filed the written statement. Later, as per the Order dated 01.06.2016 passed on I.A.No.III, the written statement filed by the Respondent No.3 is taken on file.
SCCH-7 6 M.V.C.No.4253/20156. The Respondent No.1 inter-alia denying the entire case of the Petitioners, has further contended as follows;
a) The claim petition filed by the Petitioner is not maintainable either in law or on facts and hence, the same is liable to be dismissed against him.
b) On 29.08.2015 at about 8.45 a.m., he was riding a Motor Cycle bearing Temporary Registration No.KA-09-NT-9270 and Permanent Registration No.KA-46-J-7291 on Kengeri- Uttarahalli Road, when he reached near Poorna Pragya Layout cautiously by observing all traffic norms, at that time, the deceased, who abruptly rushed to the road with his Motor Cycle, who himself caused the accident by falling in front of the BMTC Bus vehicle and his vehicle not at all involved in the accident, without any fault on his part, the Petitioner has filed the present claim petition just to have unlawful gain and cause unlawful loss to him.
c) His vehicle was insured with the second Respondent and as on the date of alleged accident, the Policy No.421609/31/2015/5635, which is valid from 03.01.2015 to 02.01.2016 in force and also possessed a valid and effective driving licence to drive the said vehicle and drive by observing all traffic norms, cautiously and carefully and thus, it is not liable to compensate the Petitioners in any manner. If at all, the Petitioners is having any claim, they are is at liberty to claim against the second Respondent, but, not against him.
SCCH-7 7 M.V.C.No.4253/2015d) However, he reserves right to file additional written statement in any changed circumstances. Hence, prayed to dismiss the claim petition.
7. The Respondent No.2 inter-alia denying the entire case of the Petitioners, has further contended as follows;
a) The petition is not maintainable either in law or on facts and the same is liable to be dismissed in limine.
b) It seeks protection under Section 147 and 149 of M.V. Act, 1988.
c) As per Section 134(c) of M.V. Act, 1988, it is mandatory duty of the insured-Respondent No.1 to furnish the particulars of policy, date, time and place of accident, particulars of the injured and the name of the driver and particulars of driving licence. But, the insured/Respondent No.1 has not complied with statutory demand. Hence, it is not liable to pay any compensation and the case is liable to be dismissed against it for non- compliance of the statutory demand.
d) As per section 158(6) of M.V. Act, 1988, it is mandatory duty of the concerned Police Station to forward all the relevant documents to the concerned insurer within 30 days from the date of the information, but, the Kumara Swamy Traffic Police Station have failed to forward the documents and not complied with the statutory demand.
SCCH-7 8 M.V.C.No.4253/2015e) It has issued a policy of insurance in favour of first Respondent in respect of Motor Cycle bearing No.KA-46-J-7291, the liability of it's company, if any, is limited to the terms and conditions of the policy and subject to valid and effective driving licence of the driver in question.
f) The rider of Motor Cycle, that is, the first Respondent was not holding a valid and effective driving licence at the time of accident. The Respondent No.1 by riding the Motor Cycle without possessing valid and effective driving licence has contravened the proviso of M.V. Act and Rules framed there under and have committed the breach of the terms and conditions of the policy. Hence, the second Respondent is not liable to meet the claim or to indemnify the first Respondent and the petition as against it may kindly be dismissed.
g) As per Condition No.1 of the Policy, the insured/First Respondent has to intimate the accident immediately on its occurrence to insurer and produce the required documents and to co-operate with the insurer in defending the claim effectively. In this case, the insurer has not reported the accident nor submitted the required documents and not co-operating with the insurer and violated Condition No.1 of the policy, that is a condition precedent to liability. As such, the policy has become null and void and the contract of insurance entered between the insurer and insured cannot be enforceable, hence, the petition as against it to be dismissed.
SCCH-7 9 M.V.C.No.4253/2015h) The accident did not take place in the manner alleged in Column No.22 of the Petition averments, the accident took place on Kengeri-Uttarahalli Main road, near the place of accident, the road takes turn towards right to the vehicles passing from North to South direction.
i) The deceased being rider of Motor Cycle KA-05-JL- 8793 was over taking the Bus bearing No.KA-02-F-1696 to its right and in the process of overtaking comes to extreme right side of the road and dashed the Bus to right side and caused the accident. As such, it is the accident took place due to the negligence on the part of the deceased himself and not due to the negligence on the part of the rider of insured Motor Cycle. Hence, the petition to be dismissed as against it for want of negligence on the part of the rider of insured Motor Cycle.
j) The accident also took place due to the negligence on the part of the driver of BMTC Bus also.
k) It reserves its right to file additional written statement in the changed circumstances of law and facts of the case.
l) It seeks permission of this Hon'ble Court to contest the matter on all the grounds available to the insured under Section 170 of the Motor Vehicles Act, 1988, if the owner/alleged insured fails to contest the claim in collusion with the Petitioners.
m) The amount of compensation claimed Rupees 50,00,000/- is highly excessive, exaggerated, arbitrary and SCCH-7 10 M.V.C.No.4253/2015 speculative, when compared to comparable cases, which have been disposed off.
n) The Petitioners may be directed to confirm that, no other petition is filed before this MACT or before any other MACT, on the same cause of action and the Petitioners may be directed to give an undertaking to this Hon'ble Court that, no such petition is filed on the same cause of action, excepting this petition.
o) Without prejudice, if this Hon'ble Court were to award compensation, the rate of interest may be restricted to 4% p.a., only and interest not payable over the amount paid to the Petitioners in respect of future expenditures, interest is to be paid only over the amount, which has become payable on the date of award, as per law laid down by the Hon'ble Supreme Court of India, in A.I.R 1995 SC 755 (R.D. Hattangadi V/s. Pest Control (India) Ltd.,). Hence, prayed to dismiss the petition with costs.
8. The Respondent No.3 inter-alia denying the entire case of the Petitioners, has further contended as follows;
a) The petition bad for non-joinder of necessary parties. The owner and the insurer of the Motor Cycle bearing Registration No.KA-05-JL-8793 are not impleaded as parties to the proceedings, hence, the same is liable to be dismissed.
b) The driver of the BMTC Bus was not at fault and not contributed anything to the alleged accident and the riders of the two Motor Cycles are responsible for the alleged accident. If the SCCH-7 11 M.V.C.No.4253/2015 riders of both the Motor Cycle were little cautious and followed the traffic rules and regulations and observed the traffic on the busy road, the accident could have been avoided.
c) The Petitioners are not entitled for any compensation of Rupees 50,00,000/- from him and the compensation claimed in the petition is highly excessive and it has no rational.
d) The Petitioners are called upon to prove that, they have not filed any claim petition before any Court of law on the same cause of action.
e) In the event of any award is passed, the rate of interest may kindly be restricted to 6% per annum as per the decision of our Hon'ble High Court of Karnataka in Geetha's Case. Hence, prayed to dismiss the petition.
9. Based on the above said pleadings, I have framed the following Issues;
ISSUES
1. Whether the Petitioners prove that, they are the dependents and legal representatives of deceased SRI.
SAGAR. V.?
2. Whether the Petitioners prove that, the accident occurred due to rash and negligent driving of the Motor Cycle bearing Registration No.KA-
46-J-7291 (KA-09-NT-9270) and BMTC Bus bearing Reg.No.KA-42-F-
SCCH-7 12 M.V.C.No.4253/20151696 by its driver and Sri. Sagar. V. died due to the injuries sustained in the accident?
3. Whether the Petitioners are entitled for compensation? If so, how much and from whom?
4. What Order?
10. In order to prove their case, the Petitioners have examined the Petitioner No.2 as P.W.1 and have also examined one witness as P.W.2 by filing the affidavits as their examination- in-chief and have placed reliance upon Ex.P.1 to Ex.P.21. On the other hand, the Respondents No.1 himself has been examined as R.W.1 by filing an affidavit as his examination-in-chief and has placed reliance upon Ex.R.1 and Ex.R.2. On the other hand, the Respondents No.3 has examined his driver as R.W.2 by filing an affidavit as his examination-in-chief and no documents got marked on his behalf. On the other hand, the Respondent No.2 has not adduced any evidence on its behalf.
11. Heard the arguments.
12. In support of the submission, the Learned Counsel appearing for the Petitioners, Sri. A.S. Girish has placed reliance upon the decision reported in, Civil Appeal Nos.8131-8132 of 2014 (Arising out of SLP © Nos.743-744 of 2014) (Ashvinbhai Jayantilal Modi V/s.
SCCH-7 13 M.V.C.No.4253/2015Ramkaran Ramachandra Sharma and Another), wherein, it is observed that,
9) We heard the Learned Counsel for the parties. In our considered view, the deceased was 19 years old and was pursuing his medical degree with good marks at the time of the accident. With respect to the future income of students pursuing professional courses we refer to Arvind Kumar Mishra V. New India Assurance Co.
Ltd., and Anr., wherein this Court held as under:-
"14. On completion of Bachelor of Engineering (Mechanical) from the prestigious institute like B.I.T., it can be reasonably assumed that, he would have got a good job. The appellant has stated in his evidence that, in the campus interview he was selected by Tata as well as Reliance Industries and was offered pay package of Rupees 3,50,000/- per annum. Even if that is not accepted for want of any evidence in support thereof, there would not have been any difficulty for him in getting some decent job in the private sector. Had he decided to join government service and got selected, he would have been put in the pay scale for Assistant Engineer and would have at least earned Rupees 60,000/- per annum. Wherever he joined, he had a fair chance of some promotion and remote chance of some high position. But, uncertainties of life cannot be ignored taking relevant factors into consideration. In our opinion, it is fair and reasonable to assess his future earnings at Rupees 60,000/- per annum taking the salary and allowances payable to an SCCH-7 14 M.V.C.No.4253/2015 Assistant Engineer in public employment as the basis...."
The Tribunal and the High Court have not taken into proper consideration that, the deceased was a student of medicine at the time of the accident while determining his future income the courts below have wrongly ascertained the future income of the deceased at only Rupees 18,000/- per month, which in our view is too less for a medical graduate these days. Therefore, the Courts below have failed in following the principles laid down by this Court in this aspect in the above case. The deceased was a diligent and outstanding student of medicine who could have pursued his M.D. after his graduation and reached greater heights. Today, medical practice is one of the most sought after and rewarding professions. With the tremendous increase in demand for medical professionals, their salaries are also on the rise. Therefore, we have no doubt in ascertaining the future income of the deceased at Rupees 25,000/-
p.m., i.e., Rupees 3,00,000/- p.a. Future, deducting 1/3rd of the annual income towards personal expenses as per Oriental Insurance Company Ltd., V. Deo Patodi and Ors., and applying the appropriate multiplier of 13, keeping in mind the age of the parent of the deceased, as per the guidelines laid down in Sarla Verma case (Supra), we arrive at a total loss of dependency at Rupees 26,00,000/- (Rupees 3,00,000/- minus 1/3 X Rupees 3,00,000/-) X 13).
10. Further, the Tribunal and the High Court have erred in not following the principles laid down by this Court in M. Mansoor and Anr. V. United India Insurance SCCH-7 15 M.V.C.No.4253/2015 Company Ltd., in awarding a meager sum of just Rupees 15,000/- under the heads of loss of love and affection. Accordingly, we award Rupees 1,00,000/- to the appellant towards the same.
11. With regard to the apportionment made by the Tribunal and the High Court, we are of the view, after considering the facts, evidence produced on record and circumstances of the case on hand, that there was no negligence on the part of the deceased. The Courts below have failed to examine the facts of the case on hand with respect to the opinion of this Court given in Juju Kuruvila and Ors. V. Kunjujamma Mohan and Ors.
From the evidence produced on record, the two wheeler of the deceased, was dragged up to a stretch of about 20-25 feet on the road after the collision with the offending truck. We are of the considered view, that to be able to create this kind of enormous effect on the two-wheeler of the deceased, the offending truck must have been traveling at a fairly high speed and that its driver did not have sufficient control over his vehicle. The driver of the offending truck should have been aware that, he was driving the heavy Motor Vehicle and taken sufficient caution. We do not see any direct evidence that shows negligence on the part of the deceased that, led to the accident. Therefore, as per the principles laid down by this Court in the case referred to above in this aspect, the contributory negligence apportioned by the Courts below on the part of the deceased is set aside.
SCCH-7 16 M.V.C.No.4253/201512. The Tribunal and the High Court have further failed in awarding only Rupees 5,000/- towards funeral expenses instead of Rupees 25,000/- according to the principles laid down by this Court in Rajesh & Ors. V. Rajbir Singh & Ors. Hence, we award Rupees 25,000/- towards the same.
13. My answers to the above said Issues are as follows;
Issue No.1 : Partly in the Affirmative,
Issue No.2 : In the Affirmative,
Issue No.3 : Partly in the Affirmative,
The Petitioners are
entitled for compensation
of Rupees 21,91,000/-
with interest at the rate of
9% p.a. from the date of
the petition till the date of
payment, from the
Respondents No.2 and 3
to an extent of 50% each .
Issue No.4 : As per the final Order,
for the following;
REASONS
14. ISSUE NO.1 :- The P.W.1, who is the Petitioner No.2 has stated in her examination-in-chief that, the Petitioner No.1 is her husband and the Petitioner No.3 is her younger daughter and the deceased Sagar. V. is her son, who died on the accidental spot due to the accidental injuries, which was taken place on SCCH-7 17 M.V.C.No.4253/2015 29.08.2015 at about 8-45 a.m. She has further stated in her cross-examination that, she has two children, i.e., deceased son and one daughter and now her daughter has completed B.B.M. and her husband was doing mason work and now her husband is not doing any work since two years due to ill health. The Petitioners have produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.4 Inquest, Ex.P.6 Postmortem Report, Ex.P.8 Charge Sheet, Ex.P.9 Driving Licence, Ex.P.10 SSLC Marks Card relating to Sagar. V., Ex.P.11 Electronics and Communication Engineering Marks Card relating to Sagar. V., Ex.P.12 Certificate dated 03.10.2011 relating to Sagar. V., Ex.P.13 Certificates relating to Sagar. V., Ex.P.17 B.E., VIth Semester in Electronics and Communications Engineering Marks Card relating to Sagar. V., Ex.P.18 Election Identity Card relating to Vijay Kumar. V., Ex.P.19 Aadhar Card relating to Amala. S., and Ex.P.20 Aadhaar Card relating to Sneha. V. On perusal of the contents of the said material documents, it clearly goes to show that, the Sagar.V., S/o Vijaykumar succumbed to the injuries on the accidental spot itself due to the accidental injuries, which was taken place on 29.08.2015 at 8-45 a.m., on Kengeri to Utharahalli Main Road near Poornapragna Layout and the Petitioner No.1 is a father, the Petitioner No.2 is a mother and the Petitioner No.3 is a younger sister of the said deceased. From this, it is made crystal clear that, the Petitioner No.1 being a father, the Petitioner No.2 being a mother and the Petitioner No.3 being a major younger sister are the legal representatives of the said deceased. But, based on the same, it cannot be said that, all the Petitioners are the dependents upon the said deceased, as, it is well settled principle of law that, SCCH-7 18 M.V.C.No.4253/2015 the father cannot be considered as a dependent upon the major son. Further, the Petitioner No.3 is a major younger sister of the deceased, who is having the Petitioner No.1 as a father and the Petitioner No.2 as a mother and as per the evidence of P.W.1, she has completed B.B.M., and as such, the Petitioner No.3 cannot be considered as a dependent upon the said deceased. The Petitioner No.2 being the mother can only be considered as a dependent upon the said deceased. Accordingly, I answered Issue No.1 Partly in the Affirmative.
15. ISSUE NO.2 :- The P.W.1 has stated that, she came to know that, her son was met with accident on 29.08.2015 at about 8.45 a.m., when he was proceeding in his Motor Cycle bearing No.KA-05-JL-8793 on Kengeri-Uttarahalli Main Road from North to South direction at extreme left side of the road, slowly, cautiously by observing traffic rules and regulation and when he reached near Purna Pragya Layout, at that time, a Motor Cycle bearing No.KA-09-NT-9270 by its rider came in a rash and negligent manner with high speed, in a wrong lane, came to his extreme right side of the road and dashed to the Motor Cycle, in which, her son was proceeding. She has further stated that, due to the impact of the accident, her son was fallen down, at that time, a BMTC Bus bearing No.KA-42-F-1696, which was coming from behind of Motor Cycle bearing No.KA-05-JL-8793 with high speed, without maintaining safe distance and ran over her son and due to impact of the accident, her son sustained fatal injuries all over the body and died on the spot. She has further stated that, the accident is occurred only due to the rash and negligent SCCH-7 19 M.V.C.No.4253/2015 riding of the rider of Motor Cycle bearing Registration No.KA-46-J- 7291 (T.R.C.No.KA-09-NT-9270) and the driver of BMTC Bus bearing No.KA-42-F-1696 and Kumar Swamy Layout Traffic Police have registered a case as against the rider of the Motor Cycle Permanent Registration No.KA-46-J-7291 (T.R.C.No.KA-09-NT- 9270) and driver of BMTC Bus bearing No.KA-42-F-1696 in question.
16. No doubt, the P.W.1 is not an eye witness of the accident in question. In this regard, she has stated in her cross- examination that, she has not seen the accident. She has further admitted that, if the opposite Motor Cycle was not dashed to the Motor Cycle, on which, her son was proceeding, her son was not fell down on the road and the BMTC Bus was not ran over on her son. She has further stated that, she does not know that, whether the said Prakash had seen the accident or not. Further, the Petitioners have not produced the vehicular documents relating to the Motor Cycle bearing Registration No.KA-05-JL-8793, wherein, the deceased was proceeding at the time of accident. In this regard, the P.W.1 has stated in her cross-examination that, the Motor Cycle, on which, her son was proceeding was having valid Insurance Policy at the time of accident and she has no hurdle to produce the same. She has further stated that, she does not know whether the Police have enquired her husband about the accident. Further, the Petitioners have examined the witness as P.W.2 and in this regard, they have not taken steps as against the P.W.2 in respect of the summons. In this regard, the P.W.2 has stated in his cross-examination that, he has not received summons from SCCH-7 20 M.V.C.No.4253/2015 this Tribunal to give evidence in the present case. Further, the P.W.2 has not lodged the complaint before the Police about the accident and the same has been clearly admitted by the P.W.2 in his cross-examination. He has further stated in his cross- examination that, the rider of the Motor Cycle bearing Registration No.KA-09-NT-9270 was coming in the middle of the road in a curving place and when he took turn on the curving place, he came on right side and the rider of the Motor Cycle bearing Registration No.KA-05-JC-8793 was also coming in the middle of the road in a curving place and when he took turn on the curving place, he came on little right side. He has further stated that, the contents of Ex.P.7 Spot Hand Sketch are true and correct and in the accidental spot, there were no shops, vehicles and Hotels, etc., and he don not remember whether the road, on which, the accident was taken place is a downer road. Further, the Respondent No.1, who is a rider-cum-R.C. Owner of the offending Motor Cycle bearing Registration No.KA-46-J-7291 has stated in his examination-in-chief that, on 28.08.2015 at about 8-45 p.m., the deceased was a rider of the Motor Cycle bearing Registration No.KA-05-JL-8793 on Kengeri - Uttarahalli Main Road, near Poornapragna Layout and the said rider was abruptly rushed to the road with his vehicle without following the traffic norms and he caused the accident himself by falling in front of the BMTC Bus and the Respondent filed the present petition as against him intentionally to get unlawful gain and to cause unlawful loss to him. He has further stated that, the vehicle, which was driven by him not at all connected to the said incident as alleged by the Petitioners and he was duly licenced by the competent Authority SCCH-7 21 M.V.C.No.4253/2015 and the said accident was entirely due to the deceased fault and he suddenly rushed to the road. He has further stated in his cross-examination that, the place of accident was down and the offending Motor Cycle came from opposite direction and the rider of the offending Motor Cycle came with very high speed and skid and fell down and he has not seen whether the rider of the offending Motor Cycle had helmet or not and when the rider of the offending Motor Cycle fell down, at that time, the BMTC Bus ran over on him. He has further stated that, the Motor Cycle bearing Registration No.KA-05-JL-8793 was coming on the opposite direction and the negligence on the part of the rider of the said Motor Cycle is a cause for the accident in question and there is no negligence on his part and on the part of the driver of the BMTC Bus in causing the alleged accident. He has further stated that, his Motor Cycle never seized by the Police in respect of the said accident and no inspection is conducted by the IMV Inspector in respect of his Motor Cycle and at the time of accident, the said road was not busy. Further, the Respondent No.3 has examined his driver, i.e., the driver of the offending BMTC Bus bearing Registration No.KA-42-F-1696, as R.W.2, who has stated in his examination-in-chief that, on 29.08.2015, he was driving the BMTC Bus bearing Registration No.KA-42-F-1696 from Electronic City to Kengeri under Route No.210T(378) and at about 8-45 a.m., he was driving the said Bus slowly and carefully with all care by following traffic rules and regulations and at that time, the deceased was driving his Motor Cycle bearing Registration No.KA- 05-JL-8793 in a rash and negligent manner and tried to overtake their Bus negligently without observing traffic on the opposite side SCCH-7 22 M.V.C.No.4253/2015 and dashed as against the Motor Cycle bearing Registration No.KA-46-JL-7292, who was coming opposite direction and fell down on the wheel of the Bus and caused the accident. He has further stated that, the accident was occurred due to rash and negligent driving of his Motor Cycle by the deceased and there is no fault on his part and if the deceased was little care and drove his vehicle by following the traffic rules and regulation, the accident could have been avoided and he is the main architect of the alleged accident and he was the responsible for the accident and he is not responsible for the alleged accident. He has further stated that, the accident was occurred due to negligence on the part of the Petitioner and the Police was registered the case as against their Bus also since their vehicle is a bigger vehicle and the criminal case is still pending adjudication. He has further stated in his cross-examination that, the accident was taken place due to negligence on the part of the rider of the opposite Motor Cycle and there was no turning place on the accident spot and little away from the accidental place, the road was turning and the said road was two ways road. He has further clearly admitted that, since the deceased himself riding the Motor Cycle in negligent manner and due to which itself, he fell down and caused the accident.
17. But, based on the said evidence elicited from the mouth of P.W.1 and P.W.2 during the course of their cross- examination and since, the P.W.2 is not a summoned witness and as per the say of the Petitioners, he has given evidence in the present petition on behalf of the Petitioners and also oral evidence SCCH-7 23 M.V.C.No.4253/2015 of R.W.1 and R.W.2, the above said oral evidence of P.W.1, which has been stated by her in her examination-in-chief as well as case made out by the Petitioners as against the Respondents in the present petition, cannot be thrown away, as, to consider their case as well as the oral evidence of P.W.1, the Petitioners have produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Spot Panchanama, Ex.P.4 Inquest, Ex.P.5 MVI Report, Ex.P.6 Postmortem Report, Ex.P.7 Spot Hand Sketch, Ex.P.8 Charge Sheet and Ex.P.9 D.L. relating to deceased, which clearly disclosed that, there is contributory negligence equally on the part of the offending Motor Cycle bearing Registration No.KA-09-NT-9270, i.e., KA-46-J-7291, i.e., Respondent No.1, who was a rider-cum-R.C. Owner of the said new vehicle and also the driver of the offending BMTC Bus bearing Registration No.KA-42-F-1696, i.e., the R.W.2, in the commission of the said road traffic accident and there was no negligence on the part of the deceased Sagar. V., in riding his Motor Cycle bearing Registration No.KA-05-JL-8793 and the said offending Motor Cycle dashed to the Motor Cycle of the deceased and due to the said impact, the deceased fell down and even though the Respondent No.1 was having sufficient space on his left side to take his Motor Cycle to avoid the said accident and due to the said impact, the deceased fell down from his Motor Cycle and at that time, the wheel of the offending BMTC Bus ran over on his body and due to which, the deceased succumbed to the accidental spot itself and if the Respondent No.1 and R.W.2 could have taken a little care while driving their respective offending vehicles, they could have avoided the said road traffic accident and saved the valuable life of the said deceased, which is clear SCCH-7 24 M.V.C.No.4253/2015 from the following discussion. Furthermore, Ex.P.7 Spot Hand Sketch clearly disclosed that, the accidental spot is a curving road and within the centre of the said accidental road, the said deceased was riding the offending Motor Cycle and there was sufficient space is available in taking the offending BMTC Bus by the R.W.2 and the offending Bus little behind distance from the said Motor Cycle and as such, the R.W.2 had chance to avoid the said road traffic accident, if there was turning the offending Bus with a little speed at the time of accident. It is also clear from the said material documents that, the Respondent No.1 was riding the offending Motor Cycle on the middle of the road and there was having a sufficient vacant road on his left side and as such, he could have avoid the said road traffic accident, if he was riding it with a little speed. Further by producing Ex.P.9 Driving Licence, the Petitioners have proved that, at the time of accident, the deceased was having a valid and effective driving licence to ride such class of Motor Cycle. Further, the P.W.1 in her cross- examination has clearly stated that, as stated by the eye witness, she came to know about the accident in question. She has further clearly admitted that, if the opposite Motor Cycle was not dashed to the Motor Cycle, on which, her son was proceeding, her son was not fell down on the road and the BMTC Bus was not ran over on her son. She has further clearly stated that, the Motor Cycle, on which, her son was proceeding, was belonging to him and the public have intimated her about the accident and she know the Complainant Prakash. Further, the P.W.2, who is an eye witness has clearly stated in his examination-in-chief that, on 29.08.2015 at about 8-45 a.m., when he was standing on the edge of the SCCH-7 25 M.V.C.No.4253/2015 Kengeri - Uttarahalli Main Road, near Purnapragna Layout, at that time, he saw one Motor Cycle bearing Registration No.KA-05- JC-8793 was coming from Uttarahalli side and proceeding towards Kengeri, slowly cautiously, when he reached near PP Layout, at that time, another Motor Cycle KA-09-NT-9270 by its rider came in a rash and negligent manner with high speed in wrong lane and dashed to the Motor Cycle bearing Registration No.KA-05-JC-8793 and due to which, the rider of the Motor Cycle was fallen down at the same time, a BMTC Bus bearing Registration No.KA-42-F-1696 which was coming from behind the Motor Cycle bearing Registration No.KA-05-JC-8793 without maintaining safe distance and ran over the rider of Motor Cycle bearing Registration No.KA-05-JC-8793 and the Motor Cyclist sustained fatal injuries and died on the spot and accident was occurred only due to rash and negligent and violation of traffic rules. He has further stated that, after enquiry with the Police, he came to know the deceased name is Sagar and in this regard, he had given his statement before the Police. He has further stated in his cross-examination that, at the time of accident, he was waiting for his friend in the accidental spot and the accidental spot was about 30 feet away from the place, wherein, he was waiting for his friend and on the accidental spot, the road was light curve to left side towards Uttarahalli right side and the Motor Cycle bearing Registration No.KA-09-NT-9270 was coming from Kengeri towards Uttarahalli and another Motor Cycle was coming from opposite direction and the rider of the Motor Cycle bearing Registration No.KA-09-NT-9270 was coming in the middle of the road in a curving place and when he took turn on the curving place, he SCCH-7 26 M.V.C.No.4253/2015 came on right side. He has further stated that, the deceased fell down on the right front wheel of the BMTC Bus and he had seen the accidental spot from the place, where he was standing. He has further stated that, the deceased is not related to him. The said evidence of P.W.2 is clearly corroborated with the contents of the above said Police documents as well as oral evidence of P.W.1. Further, the R.W.1 in his cross-examination has clearly stated that, the Police have registered a case as against him and he has not lodged a complaint as against the rider of the another Motor Cycle and the driver of the BMTC Bus and he has not challenged the very registration of the criminal case by the Police as against him in respect of the alleged accident by preferring an appeal or revision before the Hon'ble Appellate Court and the Police filed a Charge Sheet as against him and at the time of accident, the said road was not busy. If really, there was no negligence on the part of the Respondent No.,1 in the commission of the said road traffic accident and entire negligence is on the part of the deceased in riding his Motor Cycle, the Respondent No.1 and the driver of the offending BMTC Bus could have definitely lodged the complaint as against the deceased and they could have definitely challenged the very registration of the criminal case filed by the said Police as against them as well as the very filing of the Charge Sheet by the Investigation Officer as against them by preferring an appeal or revision before the Hon'ble Appellate Court. But, no such legal attempt has been made by the Respondent No.1 and the R.W.2, which clearly implies that, the entire negligence is on their part and there was no negligence on the part of the deceased in the commission of the said road traffic accident. Further, the R.W.1 in SCCH-7 27 M.V.C.No.4253/2015 his cross-examination has stated that, he has not shifted the deceased to the Hospital for treatment and he has not intimated about the said accident to the nearest Police Station. The said evidence of R.W.1 further clarify the fact that, even though the accident in question is committed by the Respondent No.1 himself as he dashed to the Motor Cycle, wherein, the deceased was proceeding on the opposite direction and due to the said impact, the deceased fell down on the accidental road and at that time, the offending Bus ran over on the body of the said deceased, the Respondent No.1 could not taken any humanitarian care and caution on the deceased. He has further stated that, when he was on the accidental spot, the Police came to the accidental spot. Further, the R.W.2 has stated in his cross-examination that, at the time of accident, he was driving the Bus on the back side of the Motor Cycle of the deceased and after the accident, he took the Bus little away from the accidental spot and the Police have seized their Bus and the Police have filed a Charge Sheet as against him and the rider of the opposite Motor Cycle in respect of the accident in question and the width of the road, which the accident was taken place was about 30 ft. He has clearly admitted that, after the accident, in between the said Motor Cycles, there was 18ft vacant road on the right side of their Bus and the opposite Motor Cycle is a heavy Honda Motor Cycle and its rider was riding it with very high speed, rash and negligent manner at the time of accident. From the said evidence of R.W.2, it appears that, if he had taken a little care while driving his offending Bus, he could have avoided the said road traffic accident, which caused to the deceased and saved the valuable life of the deceased. It is also SCCH-7 28 M.V.C.No.4253/2015 clear from the said evidence of R.W.2 that, since his negligence is also attributed in the commission of the said road traffic accident, he has also not challenged the very registration of the criminal case and very filing of the Charge Sheet as against him by the said Police by preferring an appear or revision before the Hon'ble Appellate Court. It is also clear from the said evidence of R.W.2 that, even he has also not taken any care on the deceased on the accidental spot, as, he has stated that, he has not made any efforts to shift the injured to the Hospital for treatment. Further, the Respondent No.2 has not adduced any evidence to consider its specific defence.
18. The contents of Ex.P.1 FIR and Ex.P.2 Complaint clearly disclosed that, eye witness had lodged Ex.P.2 Complaint before the Kumaraswamy Layout Police as against the rider of the offending Motor Cycle and the driver of the Bus by alleging that, on 29.08.2015 at about 8.45 a.m., the rider of the Motor Cycle bearing Registration No.KA-09-NT-9270 came with very high speed, rash and negligent manner from Kengeri towards Utharahalli and when he was proceeding near PP Layout turn, without control the speed, when he was riding it very high speed and dashed to the Motor Cycle bearing Registration No.KA-05-JL- 8793, which was proceeding from Utharahalli and due to the said impact, the said rider of the Motor Cycle fell down along with the Motor Cycle and at that time, BMTC Bus bearing Registration No.KA-42-F-1696 came on the back side ran over on the rider of the said Motor Cycle and due to the said impact, the rider Sagar. V. had sustained grievous injuries on his head, chest and stomach SCCH-7 29 M.V.C.No.4253/2015 and he succumbed on the accidental spot itself and the rider of the Motor Cycle bearing Registration No.KA-09-NT-9270 had also sustained injuries and as such, he prayed to take necessary legal action as against the rider of the offending Motor Cycle and the driver of the offending Bus and based on Ex.P.2 Complaint, the said Police have registered a criminal case as against the rider of the offending Motor Cycle and the driver of the offending Bus for the offences punishable under Section 279, 337 and 304(A) of IPC and Section 134(b) and Section 187 of IMV Act under Crime No.95/2015. It is also clear from the contents of Ex.P.1 FIR and Ex.P.2 Complaint that, there is no delay as such in lodging Ex.P.2 Complaint by the eye witness in respect of the accident in question, which caused to the deceased.
19. The contents of Ex.P.3 Spot Panchanama, Ex.P.5 MVI Report and Ex.P.7 Spot Hand Sketch disclosed that, the said accident was taken place in the turning road near PP Layout and at the time of accident, the deceased was riding his Motor Cycle bearing Registration No.KA-05-JL-8793 on the right side of the BMTC Bus bearing Registration No.KA-42-F-1696, i.e., within road median and little away from the said Bus and at that time, the Respondent No.1 was coming on his Motor Cycle bearing Registration No.KA-09-NT-9270 on the opposite direction and crossed the road median and dashed to the deceased Motor Cycle and due to the said impact, the deceased fell down and at that time, the wheel of the offending Bus ran over the deceased and due to the said impact, the deceased succumbed on the accidental spot itself. The damages caused to both the Motor Cycles and SCCH-7 30 M.V.C.No.4253/2015 offending BMTC Bus are clearly mentioned in Ex.P.5 MVI Report, which clearly disclosed about the terrific impact of the said road traffic accident. From the contents of the said material documents, it can be gathered that, if the Respondent No.1 could have controlled the speed of his Motor Cycle at the time of accident and he could not crossed the road median of the accidental road, the said accident could not occurred to the deceased and his life could definitely saved and if the driver of the offending Bus also could have taken a little care while driving it and controlled the speed of the said Bus, it could not ran over on the deceased and saved the life of the said deceased. It is also clearly mentioned in Ex.P.5 MVI Report that, the said accident was not occurred due to any mechanical defects of the said vehicles.
20. The contents of Ex.P.4 Inquest and Ex.P.6 Postmortem Report further clearly disclosed that, the said deceased succumbed on the accidental spot itself and the death is due to shock and hemorrhage as a result of multiple injuries sustained.
21. The contents of Ex.P.8 Charge Sheet further clearly disclosed that, since during the course of investigation, it is found that, the Respondent No.1 was riding his Motor Cycle bearing Registration No.KA-46-J-7291 came from Kengeri towards Utharahalli on Kengeri - Utharahalli Main Road with very high speed, rash and negligent manner and dashed to the Motor Cycle bearing Registration No.KA-05-JL-8793 near on the turning place near PP Layout, wherein, the deceased was proceeding and due to SCCH-7 31 M.V.C.No.4253/2015 the said impact, the deceased fell down along with his Motor Cycle and at that time, the driver of the offending BMTC Bus bearing Registration No.KA-42-F-1696 came with very high speed, rash and negligent manner without control the speed and distance from the said Motor Cycle bearing Registration No.KA-05-JL-8793 on the same direction and the front right wheel of the said Bus ran over on the head, chest and stomach of the deceased and due to the said impact, the deceased had sustained grievous injuries and succumbed on the accidental spot itself and the pillion rider Adarsh of the said Motor Cycle had also sustained simple injuries and after the accident, the driver of the Bus fled away from the accidental spot by leaving the Bus on the accidental spot and he did not informed the accident to the nearest Police Station and as such, after thorough investigation, the Investigating Officer has filed a charge sheet as against the Respondent No.1 and R.W.2 for the offences punishable under Section 279, 337 and 304(A) of IPC and Section 134 (A & B) R/w Section 187 of IMV Act. There is no allegation leveled as against the deceased by the Investigating Officer in Ex.P.8 Charge Sheet about his negligence in the commission of the said road traffic accident.
22. From the above said material evidence, both oral and documentary, it is clearly proved that, there is no negligence in the commission of the said road traffic accident by the deceased, but, there is negligence on the part of the Respondent No.1 in riding his Motor Cycle bearing Registration No.KA-09-NT-9270 and also the driver of the offending BMTC Bus bearing Registration No.KA-42-F-1696, i.e., R.W.2 equally, i.e., SCCH-7 32 M.V.C.No.4253/2015 contributory negligence equally attributed on the part of the Respondent No.1 and R.W.2 and the said offending Motor Cycle bearing Registration No.KA-09-NT-9270 as well as BMTC Bus bearing Registration No.KA-42-F-1696 and the Respondent No.1 and R.W.2, are very much involved in the said road traffic accident, wherein, the deceased Sagar. V., S/o. Vijay Kumar. V., succumbed to the accidental spot itself due to the accidental injuries. Accordingly, I answered Issue No.2 in the Affirmative.
23. ISSUE NO.3 :- The P.W.1 has stated that, her son was aged about 24 years at the time of accident. The Petitioners have produced Ex.P.9 Driving Licence and Ex.P.10 SSLC Marks Card relating to the deceased, which disclosed that, the date of birth of the deceased is on 15.02.1991. The date of accident is on 29.08.2015. On perusal of the said dates, it appears that, at the time of accident, the deceased was 25 years old. Hence, the age of the deceased is considered as 25 years at the time of accident.
24. The P.W.1 has stated that, her son was completion of Diploma joined to BHEL as Apprentice on 14.09.2010 and was getting an Apprentice Stipend of Rupees 7,403-87 and completed Apprenticeship training on 13.09.2011. She has further stated that, after completion of Apprenticeship, her son joined to B.E. in E and C at JSS Academy of Technical Education (JSS ATE), Bangalore. She has further stated that, her son was studying 7th Semester Bachelor of Engineering in Electronics and Communications (E & C) at JSS Academy of Technical Education (JSS ATE), Bangalore. She has further stated that, apart from SCCH-7 33 M.V.C.No.4253/2015 studies, her son was taking tuitions for students of SSLC and also working as Data Entry Operator and totally earning more than Rupees 15,000/- p.m. She has further stated in her cross- examination that, in the year 2010, her deceased son had completed his Diploma Course and at the time of accident, her deceased son was studying in 7th Semester in B.E. The Petitioners have produced Ex.P.10 SSLC Marks Card relating to deceased, Ex.P.11 Electronics and Communication Engineering Marks Card relating to deceased, Ex.P.12 Certificates dated 03.10.2011 relating to deceased, Ex.P.13 Certificates relating to deceased, Ex.P.14 Pay Slips 3 in numbers, Ex.P.15 College Fee Receipts 3 in numbers, Ex.P.16 College Identity Card relating to deceased and Ex.P.17 B.E. VIth Semester in Electronics and Communication Engineering Marks Card relating to deceased. No doubt, the Petitioners have not produced the Marks Cards relating to the deceased in respect of the 1st to 5th Semester in Electronics and Communication Engineering. The same has clearly admitted by the P.W.1 in her cross-examination. Further, though the P.W.1 in her cross-examination has stated that, she has no hurdle to produce the said Marks Cards, the Petitioners did not care to produce the said documents. But, it no way affect to consider the avocation of the deceased at the time of accident, as, the above said oral evidence of P.W.1 as well as contents of the said material documents clearly disclosed that, at the time of accident, the deceased was studying in 7th Semester B.E. From this, it appears that, at the time of accident, the deceased was B.E. Student. Further, Ex.P.14 Pay Slips disclosed that, the deceased has received Apprentice Stipend for the month of March 2011, October SCCH-7 34 M.V.C.No.4253/2015 2010 and November 2010. It is further clear from the contents of Ex.P.14 Pay Slips that, the deceased received Rupees 7,403-87 during March - 2011, Rupees 7,002-67 during October 2010 and Rupees 6,679/- during November 2010. But, only based on the said Ex.P.14 Pay Slips as well as oral evidence of P.W.1, it cannot be believed and accept that, the deceased apart from his studies, he was taking tuition to the students of SSLC and also he was working as a Data Entry Operator and from this, he was earning more than Rupees 15,000/- p.m., as, to consider the same, no authenticated documents are produced by the Petitioners. Even the Petitioners have not produced the Bank Statements relating to the deceased to consider his earnings. Further, the Petitioners have not examined the employer of the deceased. Further, the amount covered under Ex.P.14 Pay Slips, are Apprentice Stipend and it is not permanent source of income. Hence, the said evidence of P.W.1 relating to the income of Rupees 15,000/- p.m., relating to the deceased cannot be believed and accept. However, at the time of accident, the deceased was 25 years old and he was studying in 7th Semester B.E., by consider the same, this Tribunal feels that, it is just, proper and necessary to consider the notional income of the deceased is of Rupees 13,000/- p.m., which is believable and acceptable one. Hence, the notional income of the deceased is considered as Rupees 13,000/- per month at the time of accident.
25. The P.W.1 has stated that, her son was bright student and secured good results in previous semesters. She has further stated that, they had spent around Rupees 10,00,000/- towards SCCH-7 35 M.V.C.No.4253/2015 his education and his development with a fond hope he will complete his education, stand in good position in his life, but, unfortunately before reaping the fruits, they lost their son in the accident. She has further stated that, her husband is suffering from health issues, like, B.P., Diabetics and thyroid problems and he was unable to do any work and her son was only bread earner. The Petitioners have produced Ex.P.21 Medical Reports relating to Petitioner No.1.
26. While answering Issue No.1 this Tribunal has already observed and come to the conclusion that, the Petitioner No.1 is a father, the Petitioner No.2 is a mother and the Petitioner No.3 is a major younger sister of the deceased Sagar. V. S/o. Vijaykumar. V., and they are they are the legal representatives of the said deceased, but, the Petitioner No.2, who is a mother of the deceased is only a dependent upon the said deceased. When the Petitioner No.1, who is a father of the deceased cannot be considered as a dependents upon the said deceased, the said evidence of P.W.1 and Ex.P.21 relating to the Petitioner No.1 cannot be taken into for consideration.
27. While answering Issue No.2, this Tribunal has already observed and come to the conclusion that, there was no negligence in the commission of the said road traffic accident by the deceased, but, there is negligence on the part of the Respondent No.1 in riding his Motor Cycle bearing Registration No.KA-09-NT-9270 and also the driver of the offending BMTC Bus bearing Registration No.KA-42-F-1696, i.e., R.W.2 equally, i.e., SCCH-7 36 M.V.C.No.4253/2015 contributory negligence equally attributed on the part of the Respondent No.1 and R.W.2 and the said offending Motor Cycle bearing Registration No.KA-09-NT-9270 as well as BMTC Bus bearing Registration No.KA-42-F-1696 and the Respondent No.1 and R.W.2, are very much involved in the said road traffic accident, wherein, the deceased Sagar. V., S/o. Vijay Kumar. V., succumbed to the accidental spot itself due to the accidental injuries. Hence, the Petitioners being the legal representatives and the Petitioner No.2 being a dependent upon the said deceased are entitled for compensation under the following heads.
28. As per the decision reported in 2013 ACJ 1403 (Rajesh and Others V/s Rajbir Singh and Others) and as the deceased was aged 25 years at the time of accident, towards future prospects 50% of the income has to be added. So, 50% of Rupees 13,000/- comes to Rupees 6,500/-. Therefore, the income of the deceased comes to Rupees 19,500/- p.m. (Rs.13,000/- + 6,500/-).
29. The Petitioner No.2 is considered as a dependent of the deceased. Therefore, deceased left behind one dependent. As per the principles laid down in ILR 2012 KAR 2859 (New India Assurance Co. Ltd., represented by Senior Division Manager V/s Sri.David. T. and Another), whenever there is a sole dependant, deduction of 50% towards personal expenses is proper. Therefore, considering the number of the dependent, i.e., 1, 50% of the income has to be deducted towards personal expenses of the deceased, i.e., Rupees 9,750/- (50% of SCCH-7 37 M.V.C.No.4253/2015 Rs.19,500/-). Therefore, loss of dependency comes to Rupees 9,750/- (Rs.19,500/- (-) Rs.9,750/-). The multiplier corresponding to the age of the deceased, i.e., 25 years, is 18 as per Sarala Varma's Case. Therefore, loss of dependency comes to Rupees 21,06,000/- (Rs.9,750/- x 12 x 18). Therefore, the Petitioners are entitled for Rupees 21,06,000/- towards loss of dependency due to death of Sri. Sagar. V. S/o. Vijay Kumar. V.
30. The P.W.1 has stated that, the body of his son Sagar. V. was shifted to KIMS Hospital, wherein, postmortem was conducted and then, body was handed over to them.
31. As per the principles laid down in the decision reported in 2013 ACJ 1403 (Rajesh and Others V/s Rajbir Singh and Others), loss of love and affection has to be compensated by awarding Rupees 25,000/- and funeral expenses should be Rupees 25,000/-. As this Tribunal has already observed that, the Petitioner No.1 is a father, the Petitioner No.2 is a mother and the Petitioner No.3 is a younger sister of the deceased. Hence, the Petitioners are entitled for a sum of Rupees 25,000/- towards loss of love and affection and Rupees 25,000/- towards funeral expenses.
32. It is just, proper and necessary to award a sum of Rupees 5,000/- towards transportation expenses of the dead body of deceased and Rupees 30,000/- towards loss of estate. Hence, the Petitioners are entitled for Rupees 5,000/- towards SCCH-7 38 M.V.C.No.4253/2015 transportation expenses of the dead body of the deceased and Rupees 30,000/- towards loss of estate.
33. In this way, the Petitioners are entitled for the following amount of compensation:-
Sl.No. Compensation heads Compensation amount
1. Loss of Dependency Rs. 21,06,000-00
2. Funeral Expenses Rs. 25,000-00
3. Loss of Love and affection Rs. 25,000-00
4. Expenses of transportation Rs. 5,000-00 of dead body
5. Loss of Estate Rs. 30,000-00 TOTAL Rs. 21,91,000-00
34. In all, the Petitioners are entitled for total compensation of Rupees 21,91,000/- along with interest at the rate of 9% per annum on the above said sum from the date of petition till payment.
35. The R.W.1, who is the Respondent No.1, has stated in his examination-in-chief that, he is the owner of the Motor Cycle bearing Registration No.KA-46-J-7291 and temporary registration No.KA-09-NT-9270. He has further stated that, the said vehicle has been insured with the Respondent No.2 and as on the date of alleged accident, the Policy No.TTT91315654, which is valid from 10.12.2014 to 09.12.2015 in force and also possessed a valid and effective driving licence to drive the said vehicle. The Respondent SCCH-7 39 M.V.C.No.4253/2015 No.1 has produced Ex.R.1 Certificate of Registration and Ex.R.2 Insurance Policy relating to the vehicle bearing Registration No.KA-46-J-7291. He has further stated in his cross-examination that, at the time of accident, he was riding the Motor Cycle bearing Registration No.KA-46-J-7291, which was owned by him and the said Motor Cycle was having valid Insurance Policy and he was having valid D.L., at the time of accident. It is clear from the oral evidence of R.W.2 that, at the time of accident, the R.W.2 was a driver of the offending BMTC Bus bearing Registration No.KA- 42-F-1696.
36. While answering Issue No.2, this Tribunal has already come to the conclusion that, there was no negligence in the commission of the said road traffic accident by the deceased, but, there is negligence on the part of the Respondent No.1 in riding his Motor Cycle bearing Registration No.KA-09-NT-9270 and also the driver of the offending BMTC Bus bearing Registration No.KA- 42-F-1696, i.e., R.W.2 equally, i.e., contributory negligence equally attributed on the part of the Respondent No.1 and R.W.2 and the said offending Motor Cycle bearing Registration No.KA-09-NT- 9270 as well as BMTC Bus bearing Registration No.KA-42-F-1696 and the Respondent No.1 and R.W.2 are, very much involved in the said road traffic accident, wherein, the deceased Sagar. V., S/o. Vijay Kumar. V., succumbed to the accidental spot itself due to the accidental injuries. The Petitioners have clearly mentioned in the cause title of the petition that, the Respondent No.1 was an insured and the Respondent No.2 was an insurer of the Motor Cycle bearing Registration No.KA-46-J-7291 (KA-09-NT-9270) and SCCH-7 40 M.V.C.No.4253/2015 the Respondent No.3 is an Owner of the BMTC Bus bearing Registration No.KA-42-F-1696. From the said material evidence, it is made crystal clear that, at the time of accident, the Respondent No.1 was a rider-cum-R.C. Owner and the Respondent No.2 was an insurer of the offending Motor Cycle bearing Registration No.KA-46-J-7291 (KA-09-NT-9270) and the Respondent No.3 is a R.C. Owner and Internal Insurer of the offending BMTC Bus bearing Registration No.KA-42-F-1696 and their Insurance Policy were valid, which covers the date of accident. There is no allegation by the Investigation Officer in Ex.P.8 Charge Sheet as against the Respondent No.1 and R.W.2 that, at the time of accident, they were not having valid and effective driving licence to ride such class of offending Motor Cycle and Bus. The violation of the terms and conditions of the admitted Insurance Policy by the Respondent No.1 is not proved by the Respondent No.2. Under such circumstances, the Respondents No.1 and 2 jointly and severally and the Respondent No.3 are equally liable to pay the above said compensation and interest to the Petitioners, i.e., to an extent of 50% by the Respondents No.1 and 2 jointly and severally and the remaining 50% shall be paid by the Respondent No.3, to the Petitioners. Since, the Respondent No.2 is an insurer of the offending Motor Cycle bearing Registration No.KA-46-J-7291 (KA- 09-NT-9270), it shall indemnify the Respondent No.1. In view of the above said reasons and findings on Issues, the principles enunciated in the decisions cited by the Learned Counsel appearing for the Petitioners are applicable to the present facts and circumstances of the case on hand to some extent. Hence, Issue No.3 is answered accordingly.
SCCH-7 41 M.V.C.No.4253/201537. ISSUE NO.4 :- For the aforesaid reasons, I proceed to pass the following, ORDER The petition filed by the Petitioners under Section 166 of the Motor Vehicles Act, 1989, is hereby partly allowed with costs.
The Petitioners are entitled for compensation of Rupees 21,91,000/-
with interest at the rate of 9% p.a. from the date of the petition till the date of payment, from the Respondents No.2 and 3 to an extent of 50% each.
The Respondents No.2 and 3 shall deposit their respective shares of compensation and interest, i.e., 50% each, in this Tribunal, within one month from the date of this Order.
The Petitioners No.1 to 3 shall share the compensation and interest amount in the ratio of 10:80:10.
In the event of deposit of compensation and interest, the entire SCCH-7 42 M.V.C.No.4253/2015 shares relating to the Petitioners No.1 and 3 and 50% share relating to the Petitioner No.2 shall be released in their respective names through account payee cheques, on proper identification.
Remaining 50% share relating to the Petitioner No.2 shall be kept in FD in her name, in any nationalized Bank of her choice, for a period of 3 years.
Advocate's fee is fixed at Rupees 1,000/-.
Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then, pronounced by me in the open Court on this, the 7th day of September, 2016.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONERS :-
P.W.1 : Smt. A. Amala
P.W.2 : Sri. Suraj. S. Raju
SCCH-7 43 M.V.C.No.4253/2015
2. DOCUMENTS MARKED BY THE PETITIONERS :-
Ex.P.1 : True copy of FIR
Ex.P.2 : True copy of Complaint
Ex.P.3 : True copy of Spot Panchanama
Ex.P.4 : True copy of Inquest
Ex.P.5 : True copy of MVI Report
Ex.P.6 : True copy of Postmortem Report
Ex.P.7 : True copy of Spot Hand Sketch
Ex.P.8 : True copy of Charge Sheet
Ex.P.9 : Notarised xerox copy of D.L.
relating to Sagar. V.
Ex.P.10 : Notarised xerox copy of SSLC Marks Card relating to Sagar. V. Ex.P.11 : Notarised xerox copy of Electronics and Communication Engineering Marks Card relating to Sagar. V. Ex.P.12 : Notarised xerox copy of Certificates dated 03.10.2011 relating to Sagar. V. Ex.P.13 : Notarised xerox copy of Certificates relating to Sagar. V. Ex.P.14 : Pay Slips (3 in nos.) Ex.P.15 : College Fee Receipts (3 in nos.) Ex.P.16 : College Identity Card relating to Sagar. V. Ex.P.17 : Notarised xerox copy of B.E. VIth Semester in Electronics and Communication Engineering Marks Card relating to Sagar. V. Ex.P.18 : Notarised xerox copy of Election Identity Card relating to Vijay Kumar. V. Ex.P.19 : Notarised xerox copy of Aadhaar Card relating to Amala. S. Ex.P.20 : Notarised xerox copy of Aadhaar Card relating to Sneha. V. Ex.P.21 : Medical Reports relating to Vijay Kumar
3. WITNESSES E XAMINED BY THE RESPONDENTS :-
R.W.1 : Praveen
R.W.2 : Maniswamy. R.
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
SCCH-7 44 M.V.C.No.4253/2015
Ex.R.1 : Notarised xerox copy of Certificate of
Registration relating to Vehicle bearing
Registration No.KA-46-J-7291
Ex.R.2 : Xerox copy of Insurance Policy
(INDIRA MAILSWAMY CHETTIYAR)
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.