Bangalore District Court
Venkatalakshmi P vs Sudharshan T R on 27 January, 2025
KABC020362442023
IN THE COURT OF XXI ADDL.SMALL CAUSE JUDGE AND
MOTOR ACCIDENT CLAIMS TRIBUNAL, BANGALORE.
(SCCH-23)
DATED THIS THE 27th DAY OF JANUARY - 2025
PRESENT: Sri. Shreyansh Doddamani
B.Com. LL.B (Spl),
XXI ADDL. SCJ & ACJM
MEMBER - MACT, BENGALURU.
MVC. No.7547/2023
PETITIONER/S 1. Smt. Venkatalakshmi. P,
W/o Late P. Gopal Shetty,
Aged 52 years.
2. Shymala. P. B,
W/o Manoj,
Aged 39 years.
3. Amitha. P.
D/o Late P.Gopal Shetty,
Aged 27 years
4. Balaji. P.
S/o Late P.Gopal Shetty
Aged 24 years
All are residing at No.417,
Sri Krupa Nilaya,
2nd cross, Hemavathi block, .
IDMC Badavane, TUDA Layout,
Sira gate, Tumkur - 57106.
(By Sri.Venkateshaiah, Advocate)
SCCH-23 2 MVC. No.7547/2023
Vs.
RESPONDENTS 1) Sudharshan. T.S,
S/o Ramakrishnaiah,
Aged Major, 1st Main,
7th Cross, Daddihalli,
Gokula Extn,
Kyathasandra,
Tumkur 572104.
(Owner of the Bullet M/C Bearing
Reg.No.KA-06-HR-8668)
(By Sri. R.K.Radhakrishna, Advocate)
2) The Manager,
Bajaj Allianz Gen Ins. Co. ltd.,
No.1/2, Golden Heights, 4th floor,
59th C cross, 4th M block,
Rajajinagar, Bangalore 560010.
Policy No./year/REB/1000495307
Valid from 14-09-2023 to 13-09-2028
(By Sri. K.Prakash, Advocate)
JUDGMENT
This claim petition is filed under Sec.166 of M.V Act, 1988 seeking compensation for the death caused in a Road Traffic accident.
2. The case of the petitioners in the nutshell is that, on 23.10.2023 at about 5-30 p.m, the deceased was riding the Moped bearing Reg.No.KA-06-EX-9527 in slowly and cautiously SCCH-23 3 MVC. No.7547/2023 by following all the traffic rules and regulations on SH-33 road, when he reached infront of S.J.Rice mill, Antharasanahalli Kasaba Hobli, Tumkur Taluk, Tumkur District, at that time one Bullet motor cycle bearing Reg.No.KA-06-HR-8668 which was ridden by its rider in a rash and negligent manner so as to endangering to human life and dashed against the deceased's motor cycle and caused the accident. Due to the terrific impact the deceased sustained grievous injuries all over his body. Immediately after the accident he was shifted to Govt., Hospital, Tumkur, wherein he took for first aid and then he was shifted to NIMHANS Hospital, and thereafter shifted to Mahaveer Jain Hospital, Bangalore, wherein he died during the course of treatment. Thereafter dead body was shifted to Govt., hospital Tumkur and Postmortem was conducted and corpse was handed over to the family members, who conducted funeral and other ceremonies by spending substantial amount. The accident was caused due to the sole negligence of rider of the Bullet motorcycle. The respondent No.1 being the R.C. Owner of the offending motorcycle and the Respondent No.2 being its Insurer SCCH-23 4 MVC. No.7547/2023 are jointly and severally liable to pay compensation to the petitioners.
3. After service of summons the respondent No.1 appeared through his counsel and filed written statement. In the written statement respondent No.1 contended that the petition itself is not maintainable either law or on facts. The respondent No.1 admitted that he is the RC owner of the Bullet motor cycle bearing Reg.No.KA-06-HR-8668 and it was duly insured with the 2nd respondent and same was in force as on the date of accident. It is further submitted that the rider of said motor cycle was possess valid and effective driving licence. Further denied all the allegation made in the petition. Hence prayed to dismiss the petition.
4. After service of notice, respondent No.2 filed written statement by contending that the petition itself is not maintainable either law or on facts. This respondent admitted about issuance of insurance policy in respect of Bullet motor cycle bearing Reg.No.KA-06-HR-8668. However the liability if any is pleaded to be subject to the terms & conditions of the SCCH-23 5 MVC. No.7547/2023 policy. Further the respondent has contended that, the owner and the concerned police have not complied the mandatory provision of Sections 147, 149, 134(c) and 158(6) of M.V.Act. This respondent specifically and empathically denied the occurrence and mode and manner of accident and also involvement of the offending vehicle in the alleged accident. Negligence on the part of the rider of the insured vehicle is denied by this respondent. Per contra it is alleged that the rider of motorcycle / deceased who was riding the said vehicle without having a proper lookout at the vehicular movement on the road was solely responsible for the occurrence of the accident. The petition is bad for non joinder of necessary parties. Further contended that the deceased did not having valid D.L. and not wear the Helmet on the date of accident. Without prejudice to the said contention it is averred that the rider of the insured vehicle did not possess valid & effective DL on the date of accident. Despite knowing the said fact the owner thereof had handed over its possession to such a driver. On account of willful breach of the terms & conditions of the policy by the insured, the insurance company is not liable to SCCH-23 6 MVC. No.7547/2023 indemnify him. Further denied all the allegation made in the petition. Hence prayed to dismiss the petition.
5. On the basis of the above pleadings the following issues were framed :
ISSUES
1) Whether the petitioners proves that they are the legal heirs and dependents of the deceased ?
2) Whether the petitioners prove that the deceased succumbed to the injuries sustained in a road traffic accident that occurred on 23.10.2023 at about 5.30 p.m., on SH-33 road, infront of S.G.Rice Mill, Antharasanahalli, Kasaba Hobli, Tumkur Taluk, Tumkur District due to actionable negligence of the rider of Royal Enfield Bullet motorcycle bearing Reg.No.KA-06-HR-8668 ?
3) Whether the petitioners are entitled for compensation as prayed? If so, at what rate and from whom ?
4) What order or award ?
6. The Petitioner No.1 examined herself as PW.1. Ex's.P1 to 22 were marked on behalf of the petitioners. The respondent No.1 being the RC owner of the offending motorcycle himself examined as RW.1 and got marked Ex.R1 to 3 document.
7. Heard both counsels for the petitioner and respondents counsel on merits. Perused the written arguments submitted by SCCH-23 7 MVC. No.7547/2023 the respondent No.2 and also Perused the entire materials placed on record. The learned counsel for the respondent no.2 relied on the decisions (1) ILR 2003 KAR 409 and (2) ILR 2009 KAR 2921.
8. My answers to the above issues are as follows:-
Issue No.1 : In the Affirmative
Issue No.2 : In the Affirmative
Issue No.3 : Partly in the Affirmative
Issue No.4 : As per final order
for the following :
REASONS
9. ISSUE No.1: The petitioners claim that, petitioner No.1 is the wife and petitioner No.2 & 3 are the daughter and petitioner No.4 is the son of the deceased. To prove the same, petitioner No.1 filed affidavit-in-lieu of her chief-examination and deposed about the above relationship. The Aadhaar cards and PAN cards of petitioners and deceased at Ex.P.14 to 22 and contents of the police papers do fortify the said fact.
10. At this juncture, I would like to refer the decision reported in 2021 SCC Online Kerala 3209 (United India Insurance Co. Ltd., V/s. Shalumol and Others). The Hon'ble High SCCH-23 8 MVC. No.7547/2023 Court of Kerala has held in this case, the earning sons are also dependents and also entitled compensation under the Motor Vehicles Act. In the said judgment, the Hon'ble High Court of Kerala has relied the decision of the Apex Court reported in 2020 (11) SCC 356, (National Insurance Company Limited v. Birender) wherein it is held as under;
"para No. 48. In a recent decision in National Insurance Company Limited v. Birender [(2020) 11 SCC 356], a claim petition filed by major married and earning sons of the deceased mother, the Honourable Supreme Court held as follows:
"12. The legal representatives of the deceased could move application for compensation by virtue of clause (c) of Section 166 (1). The major married son who is also earning and not fully dependent on the deceased would be still covered by the expression "legal representative" of the deceased. This Court in Manjuri Bera (supra) had expounded that liability to pay compensation under the Act does not cease because of absence of dependency of the concerned legal representative. Notably, the expression "legal representative" has not been defined in the Act.
14. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the SCCH-23 9 MVC. No.7547/2023 application irrespective of the fact whether the concerned legal representative was fully dependent on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meager income between Rs. 1,00,000/and Rs. 1,50,000/per annum. In that sense, they were largely dependent on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years."
Therefore, in view of the principles laid down by the Hon'ble High Court of Kerala and Hon'ble Supreme Court, which is referred in the above decision, this Tribunal is of the opinion that, the major married / earning sons and married daughters are also dependents to the deceased and they are entitled for the compensation under the motor vehicles accident cases. It is pertinent to note that, this relationship of the petitioners with the deceased was not disputed by the respondents. Since the evidence led by the petitioners is satisfactory and also taking into consideration the fact that there are no rival claimants, this Tribunal hold that the petitioners are the legal representatives of the deceased. Therefore, petitioners are the legal heirs and SCCH-23 10 MVC. No.7547/2023 dependents of deceased. Hence, this Tribunal answers to issue No.1 In the Affirmative.
11. ISSUE No.2: The occurrence of the accident on the relevant date, time and place is not in dispute. The parties are also not at variance with regard to the factum of the death of the deceased due to the injuries sustained in the said accident. The conflict is with respect to actionable negligence. The petitioners pleaded that the accident was caused due to sole negligence of the rider of the offending Bullet motorcycle. Whereas the respondents contended that the accident in question occurred because of negligence on the part of the deceased.
12. The evidence on record reveals that after the receipt of complaint lodged by one Mr.Raghavendra shetty, i.e., relative of deceased, the jurisdictional police conducted thorough investigation and registered a criminal case against the rider of the Bullet motor cycle bearing Reg.No.KA-06-HR-8668.
13. Though the respondent No.1 has denied the cause of the accident and contended that the accident occurred due to SCCH-23 11 MVC. No.7547/2023 sole negligence on the part of the deceased, but in the cross examination, the RW.1 i.e., owner of offending vehicle admitted that, the police have lodged FIR against him and also filed charge sheet against him. He has not challenged the charge sheet. The respondent no.2 insurance company has not led any cogent evidence to prove its defence or to disprove the evidence led by the petitioners. Further, the police have issued notice to the owner of the offending vehicle as per Ex.P8. For which the owner of the offending vehicle had replied as per Ex.P9. After completion of the investigation the jurisdictional Tumkur Rural Police have filed charge sheet against rider of offending vehicle for the offence punishable under section's 279 and 304A of IPC. There is nothing on record to believe that the charge sheet filed by the police is defective or collusive. Under such circumstances the evidence of PW.1 which is supported by police documents has to be accepted. Consequently I hold that the accident is proved to have been caused due to the actionable negligence of the rider of Bullet motor cycle bearing Reg.No.KA-06-HR-8668. In addenda, in a claim for compensation u/s 166 of M.V Act, 1988, the claimants have to SCCH-23 12 MVC. No.7547/2023 prove the incident only on preponderance of probabilities and proof beyond reasonable doubt is not required as held by the Hon'ble Apex Court in (2011) 3 SCC 646. With this observation Issue No.2 is answered as 'In the Affirmative'.
14. ISSUE NO.3 : LOSS OF DEPENDENCY INCLUDING FUTURE PROSPECTS: The petitioners have produced the Driving Licence extract to show the age of the deceased as per Ex.P13 wherein the date of birth of deceased is shown as 14.09.1964, which indicates that he was aged 59 years on the date of accident. Therefore the appropriate multiplier as per Sarla Verma's case for the said age group is '9'.
15. In this case the petitioners have claimed the compensation on the death of deceased in the RTA. The petitioners contended that, deceased was doing Rice business and earning a sum of Rs.40,000/- p.m. In order to substantiate the avocation of the deceased, the petitioners have not produced any document. However, the petitioners have produced Copy of TGMC Bank pass book. The said document is marked at Ex.P.12. But the said pass book does not disclose SCCH-23 13 MVC. No.7547/2023 the actual income credited to the account of the deceased and there was a variation in the income of the deceased. In the absence of documentary proof, except independent and oral evidence of petitioners, this court cannot come to conclusion based on assumptions and presumptions. It is relevant to rely on a decision of Hon'ble High Court of Karnataka rendered on Division Bench in the case of Ananda v/s Arjun and another in MFA.No.101144/2020 (MV) dated.05.07.2023. Wherein the Hon'ble High Court of Karnataka has laid down the following principles in para No.8(b) are as here under :
"(b) The accident is of the year 2017. The Tribunal has assessed the income of the deceased at Rs.7,000/- per month as against the claim of Rs.2,50,000/- per annum. To substantiate the said claim, the injured claimant has not placed any material on record, it is for the Courts and Tribunals to assess the income notionally. The notional income fixed by the Karnataka State Legal Services Authority for the accident of the year 2017 is Rs.10,250/-. In the absence of any material produced by the claimant to prove his income, it is appropriate to assess the notional income of the injured claimant at Rs.10,250/- per month, and the same is assessed as the monthly income of the injured claimant"
As such this court is taking the notional income as prescribed by the Karnataka Legal Service Authority, Bengaluru. Therefore SCCH-23 14 MVC. No.7547/2023 in view of the above decision, the accident was occurred on 23.10.2023. Therefore, Rs.16,000/- has to be taken into consideration as monthly income of the deceased.
16. As per the decision of Hon'ble Apex Court reported in 2017 ACJ 2700 (SC) (National Insurance Company Limited Vs Pranay Sethi and others), if the person died in the motor accident, the income with respect to the future prospect has to taken into consideration while awarding compensation. The Hon'ble Apex Court has provide the chart for age of the deceased and percentage for future prospects in between below the age of 40 years 40%, 40 years to 50 years 25% and 50 to 60 years 10%. The deceased is not a permanent Employee and not a fixed salary person and he died at the age of 59 years. Therefore, in this case, 10% income has to be taken into consideration for future prospects. Further as stated above that, as on the date of accident, deceased aged about 59 years and as such, 10% is added to the income of the deceased, then it comes to Rs.17,600/- p.m. (Rs.16,000/- + 1,600/- i.e. 10%). SCCH-23 15 MVC. No.7547/2023
17. The deceased died living behind 4 dependents. As per principle laid down by the Hon'ble Apex Court in Sarala Verma Case, 1/4th of his income is required to be deducted towards his personal expenses which comes to Rs.13,200/- p.m. (Rs.17,600
- Rs.4,400 = Rs.13,200/-).
18. The income of the deceased is taken as Rs.13,200/- p.m. and the multiplier '9' is applied, then the loss of dependency comes to Rs.14,25,600/- (Rs.13,200/- X 12 X 9). Considering the above facts, I deem it just and reasonable to grant for compensation of Rs.14,25,600/- under the head of loss of dependency.
19. Further, as Law laid down by the Hon'ble Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others, the compensation towards loss to estate, funeral expenses and consortium is to be awarded. The petitioners contended that they have spent substantial amount towards transportation of dead body, funeral and obsequies etc., but no documents are produced. Hence this Tribunal award Rs.18,150/- towards loss to estate and Rs.18,150/- towards SCCH-23 16 MVC. No.7547/2023 funeral expenses as enhanced at the rate of 10% on every 3 years and Rs.48,400/- towards consortium to the petitioner No.1. By applying the observations made in the aforesaid case, as more than 6 years elapsed from the date of order amount of consortium, funeral expense and loss of estate to be enhanced.
20. In this case, the petitioner No.2 to 4 are the children of the deceased and as per the decision reported in (2018) 12 SCC 130 in the case of Magma General Insurance Company Limited V/s Nanu Ram alias Chuhru Ram and others, the petitioner No.2 to 4 are entitled for filial consortium, as the filial consortium is the right of the parents and children to get compensation in the case of an accidental death of a children and father as the case may be. An accident leading to the death of a father cause great shock and agony to the children of the deceased and they lost their love and affection towards his/her father. Therefore, petitioner No.2 to 4 are entitled for Rs.40,000/- each under the head of Filial consortium. SCCH-23 17 MVC. No.7547/2023
21. The calculation table stands as follows :
Compensation heads Compensation
amount
1. Towards loss of dependency Rs. 14,25,600-00
2. Towards loss of Consortium to the Rs. 48,400-00
petitioner No.1
3. Towards loss to estate Rs. 18,150-00
4. Towards transportation of dead body Rs. 18,150-00
funeral and obsequies ceremony
expenses
5. Towards loss of Filial consortium to Rs. 1,20,000-00
petitioner No.2 to 4
Total Rs. 16,30,300-00
22. REGARDING INTEREST & LIABILITY : Having regard to the nature of the claim and current bank rate of interest, this Tribunal is of the view that if interest at the rate of 6% per annum is awarded it would meet the ends of justice.
23. There is no dispute with regard to the issuance of insurance policy and its validity as on the date of accident. Therefore, the respondent No.1 being the owner of Bullet motor cycle bearing Reg.No.KA-06-HR-8668 and respondent No.2 being the insurer thereof are jointly and severally liable to pay the aforesaid award amount to the petitioners together with interest @ 6% per annum from the date of claim petition till SCCH-23 18 MVC. No.7547/2023 realization of the entire amount. However the respondent No.2 being the insurer is primarily liable to satisfy the award amount together with interest within one month from the date of this order. Hence issue No.3 is answered as 'Partly in the Affirmative'.
24. ISSUE NO.4 : In view of the discussion made supra, this Tribunal proceeds to pass the following :
ORDER The petition filed under Section 166 of M.V. Act 1988, is hereby partly allowed with costs in the following terms :
The petitioners are entitled for compensation of Rs.16,30,300/- with interest at the rate of 6% p.a. from the date of claim petition till realization of the entire award amount.
The respondent No.2 is liable to pay and directed to deposit the compensation amount within a period of one month from the date of award.
On deposit of the award amount together with interest, the claimants are entitled for the compensation amount by way of apportionment as follows :
Petitioner No.1 - 70%
Petitioner No.2 - 10%
SCCH-23 19 MVC. No.7547/2023
Petitioner No.3 - 10%
Petitioner No.4 - 10%
Out of the share amount of Petitioner No.1 a sum equal to 25% shall be deposited in her name in any Nationalized or Scheduled Bank of her choice for a period of 3 years and the remaining 75% shall be released to her through E-payment on proper identification and verification. However the said petitioner No.1 is at liberty to withdraw the periodical interest accrued on her deposit amount from time to time.
The entire share amount apportioned in the name of petitioner No.2 to 4 shall be released to in their favour through E-payment on proper identification and verification.
Advocate fee is fixed at Rs.1,000/-. Draw an award accordingly.
(Dictated to the Stenographer directly on computer & printout taken by him, then corrected and pronounced by me in the open court on this the 27th day of January-2025) (Shreyansh Doddamani) XXI Addl. Small Causes Judge & ACJM, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONER/S :
PW-1: Smt.Venkatalakshmi SCCH-23 20 MVC. No.7547/2023 LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONER/S :
Ex.P.1 True copy of FIR
Ex.P.2 True copy of Complaint (2 in Nos.)
Ex.P.3 True copy of The requisition to the jurisdictional
Magistrate to add 304A of IPC in the FIR
Ex.P.4 True copy of PM Report
Ex.P.5 True copy of Inquest
Ex.P.6 True copy of Spot Mahazar
Ex.P.7 True copy of Sketch
Ex.P.8 True copy of notice issued U/Sec.133 of IMV Act
Ex.P.9 True copy of reply to the above said notice
Ex.P.10 True copy of IMV Report
Ex.P.11 True copy of Charge Sheet
Ex.P.12 Notarized copy of Passbook of deceased Ex.P.13 DL Extract Ex.P.14 Notarized copy of the Aadhaar cards & 15 Ex.P.16 Notarized copy of the PAN card of petitioner No.1 Ex.P.17 Notarized copy of the Aadhaar card of petitioner No.2 Ex.P.18 Notarized copy of the PAN card of petitioner No.2 Ex.P.19 Notarized copy of the Aadhaar card of petitioner No.3 Ex.P.20 Notarized copy of the PAN card of petitioner No.3 Ex.P.21 Notarized copy of the Aadhaar card of petitioner No.4 Ex.P.22 Notarized copy of the PAN card of petitioner No.4 SCCH-23 21 MVC. No.7547/2023 LIST OF WITNESSES EXAMINED ON BEHALF OF THE RESPONDENT/S :
RW.1 : Sri. Sudharshan T.R. LIST OF DOCUMENTS MARKED ON BEHALF OF THE RESPONDENT/S :
Ex.R.1 Copy of R.C.
Ex.R.2 Copy of Insurance policy
Ex.R3 Copy of D.L.
(Shreyansh Doddamani)
XXI Addl. Small Causes Judge
& ACJM, Bengaluru.