Bangalore District Court
Gowramma vs Parvathy.B on 6 November, 2024
SCCH-14 1 MVC.1861/2023
KABC020086592023
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS TRIBUNAL,
BANGALORE CITY.
SCCH-14
Dated : This the 06th day of November, 2024
Present : SRI. D.RAMESH.
B.A.L., LL.B.,
MEMBER, MACT,
XVI ADDL. JUDGE,
COURT OF SMALL CAUSES,
BENGALURU.
MVC No.1861/2023
Petitioner: Smt.Gowramma,
W/o Mudlaiah,
Aged about 70 years,
R/at Sompura HQ,
Nelamangala TQ,
Maralakunte,
Bangalore Rural - 562111.
(By Sri.Chandrashekaraiah.R,Adv)
Vs
Respondents : 1.Parvathy.B
SCCH-14 2 MVC.1861/2023
W/o S.N.Balasumbramaniyam.S.N
R/a No.1, AGA Garden Food Godown
Road at Halli Layout, Shanthinagar,
Bangalore - 560 027.
(By Sri.M.Ravindranath Adv)
2.The General Manager,
Liberty General Insurance Ltd.,
No.21/15, The Land Mark, 4th Floor,
Near Trinity Metro, MG Road,
Bangalore -560001.
(By Sri.Kiran Pujar,Adv)
:JUDGMENT:
This Claim Petition is filed by the Petitioner against Respondents under Section 166 of the Motor Vehicles Act seeking Compensation of Rs.50,00,000/- for the death of Mahesh S/o Mudlaiah in a Road Traffic accident.
2. The substance of averments made in the Petition is as under:
That on 28-11-2022 at about 4.00 p.m., the deceased Mahesh was traveling as a pillion rider along with his friend who was riding his Splender Plus motor cycle bearing No.KA- SCCH-14 3 MVC.1861/2023 52-Q-4079 from Doddabelavangala towards Dabaspet, when they reached near constructing toll Hulikunte, Appakaranahalli gate, Doddaballapura-Dabaspete NH-207, at that time, the driver of tipper lorry bearing No.KA-01-AD-0875 came in a rash and negligent manner and dashed against the two wheeler. From back side. Due to the said accident, Mahesh and rider fell down and the lorry ran over the body of both of them. Both sustained grievous injuries and succumbed to the injuries on the spot itself.
Prior to the accident, said Mahesh was hale and healthy and he was working as flower decorator and was earning a sum of Rs.30,000/- per month. Entire family of the deceased was depending on the income of the deceased. The cause of death is due to accidental injuries. The said accident was caused due to the rash and negligent driving of the driver of tipper lorry bearing Reg.No.KA-01-AD-0875. The Respondent No.1 is the owner and the Respondent No.2 is the insurer of the offending vehicle bearing Reg.No.KA-01-AD-0875. Therefore, both the SCCH-14 4 MVC.1861/2023 Respondents are jointly and severally liable to pay compensation to the Petitioner.
3. In pursuance of service of notice to the Respondents, the Respondent No.1 and 2 appeared before the Court through their respective counsels and filed their detailed objections.
Respondent No.1 in the Objection Statement to the main petition denied the age, avocation and income of the deceased and also denied the accident caused by the rash and negligent driving of the driver of the tipper lorry. Further, he contended that the driver of tipper lorry had valid and effective driving licence and the lorry also had permit to ply on the road. The said lorry was insured with the respondent No.2 and it was in force as on the date of accident. On these grounds, Respondent No.1 has prayed to dismiss the petition against him.
Respondent No.2 in the Objection Statement to the main petition denied the age, avocation and income of the deceased and also denied the accident caused by the rash and negligent driving of the driver of the offending tipper lorry. Further, it SCCH-14 5 MVC.1861/2023 admits the issuance of insurance policy to the tipper lorry bearing Reg.No.KA-01-AD-0875. Further it contended that the rider of motor cycle was not having valid and effective driving licence and the accident took place due to his negligence and also contended that the deceased was not wearing helmet. Further it contended that the driver of lorry was not holding valid and effective driving licence as on the date of accident. Further contended that the petition is liable to be dismissed for non joinder of necessary parties i.e., owner and insurer of motor cycle. On these grounds, Respondent No.2 has prayed to dismiss the petition against it.
4. On the basis of the rival pleadings, my Learned Predecessor has framed the following Issues.:
ISSUES
1. Whether the Petitioner proves that her son Mahesh was died in the Road Traffic Accident which occurred on 28.11.2022 at about 4.00 p.m. near newly constructing toll, Apakaranahalli gate, Doddaballapura Dabas SCCH-14 6 MVC.1861/2023 Pete, NH-207 main road, Hulikunte, arising due to rash and negligent driving of tipper lorry bearing Reg.No.KA-01-AD-0875?
2.Whether the petitioner further proves that she is the legal heir of deceased Mahesh?
3. Whether the Petitioner is entitled for compensation ? If yes, what is the quantum and who is liable to pay?
4. What award or order ?
5. In order to prove the case of the Petitioner, the Petitioner got examined herself as PW.1 and got marked 13 documents as per Ex.P.1 to 13 and got examined a witness as PW.2 and closed her side evidence. On the other hand, Respondent No.2 examined a witness as RW.1 and closed evidence. Respondent No.1 has not led evidence.
6. The learned counsel for respondent No.2 has relied upon the following citations.
1. SLP(C) No.3511 of 2020 between Hans Raj Vs. Oriental Insurance Company Ltd., and another date of SCCH-14 7 MVC.1861/2023 disposal :20.08.2024.
2. MFA No.7404/2014 (MV-D) between Smt.Mariyamma and others Vs. Sri.Suyambulingam.V and another date of disposal :06.02.2022.
7. I have heard the arguments of the learned Counsel for the Petitioner and the learned Counsel for the Respondents.
I have perused the depositions, documents exhibited and materials available on record.
8. My answer to the above Issues are as under:
Issue No.1 : In the Affirmative
Issue No.2 : In the Affirmative
Issue No. 3 : Partly in the Affirmative.
Issue No. 4 : As per the Final Order
for the following :
REASONS
9. Issue No.1: It is the case of the Petitioner that the
accident has occurred due to the rash and negligent driving of the driver of the offending tipper lorry bearing Reg.No.KA-01- AD-0875 and in the said accident, Mahesh had succumbed to SCCH-14 8 MVC.1861/2023 the injuries.
10. On the other hand, the Respondents have denied the accident occurred by the rash and negligent driving of the driver of the offending tipper lorry.
11. In order to prove the case of the Petitioner, Petitioner got examined herself as P.W.1 and she has filed her chief affidavit in lieu of chief examination and re-iterated the petition averments.
12. In order to prove the case of the Petitioner, PW.1 has relied on Ex.P-1 to Ex.P13. Ex.P-1 and 2 are the True copy of FIR and complaint, which show that the Doddabelavangala Police have registered the case against the driver of tipper lorry bearing No.KA-01-AD-0875 for the offences punishable under Sections 279, 304(A) of IPC. Ex.P3 and 4 are the Spot Mahazar and Sketch, which show that the concerned police have drawn Mahazar at the spot in the presence of panchas and prepared the sketch. Ex.P.5 is the IMV Report, which shows that SCCH-14 9 MVC.1861/2023 accident did not occur due to any mechanical defects of the offending vehicle. Ex. P.6 is the inquest report. Ex.P.7 is the notice issued U/s 133 of IMV Act. Ex.P.8 is the reply to notice. Ex.P.9 is the PM Report, which shows that the cause of death is traumatic brain injury as a result of road traffic accident. Ex.P.10 is the true copy of the Charge-sheet, which shows that the I.O of Doddabelavangala Police Station has submitted Charge-sheet against the driver of the offending vehicle for the offences punishable under Sections 279, 304(A) of IPC.
13. Ex.P.11 and 12 are the notarised copies of Aadhar cards of deceased Mahesh and the Petitioner. Ex.P.13 is the notarised copy of PAN card of petitioner.
14. Further PW.1 got examined an eyewitness as PW.2 and he has filed his chief affidavit in lieu of chief examination and re-iterated the petition averments.
15. PW1 is subjected for cross examination by the learned counsel for Respondent No.2. During her cross SCCH-14 10 MVC.1861/2023 examination she has denied all the suggestions made by the counsel for respondent No.2. The petitioner has also examined an eyewitness as PW.2. During his cross examination he has admitted that he has not received any notice or summons to give evidence. He has also admitted the suggestion that he was not present at the time of spot mahazar and denied the other suggestions made by the counsel for respondent No.2.
16. The counsel for Respondent No.2 has examined its Area Manager as RW.1. During his cross examination he has admitted that they have not issued any notice against the owner of offending vehicle and they have not challenged the charge sheet.
17. Learned counsel for the respondent No.2 argued that Ex.P.5 is IMV report shows that front left side of two wheeler is damaged, therefore, it shows that there is contributory negligence on part of the rider of the bike.
18. It is pertinent to note that spot sketch prepared by the SCCH-14 11 MVC.1861/2023 police at the time of spot mahazar is produced which is marked at Ex.P.4 and the spot mahaar is produced at Ex.P.3. These two documents constitute basis for assessing in contributory negligence can be attributed on the part of the rider of bike or not. A careful perusal of Ex.P.3 and 4 show that it is 4 lane high way is divided by median 8 ft. width. The deceased and rider of the bike were moving towards Dabaspete at the left side of the road. The offending tipper lorry came behind the bike and hit against the said bike from backside. Therefore, it cannot be said that there was contributory negligence on the part of the rider of the bike. It cannot be said that there was contributory negligence on the part of the rider of the bike, only because of damage caused to the bike at its front.
19. Moreover, the charge sheet is the material document, which is not challenged by the driver of the offending vehicle. Therefore, having regard to the facts and circumstances of the case and evidence adduced by the Petitioner and the documents exhibited, this Tribunal is of the opinion that, the SCCH-14 12 MVC.1861/2023 Petitioner has proved that the said accident has occurred by the rash and negligent driving of the driver of the offending lorry bearing No.KA-01-AD-0875 by its driver and in the said accident, the son of PW1 had sustained grievous injuries and succumbed to the injuries. Accordingly, I answer Issue No.1 is in the "Affirmative".
Issue No. 2 and 3:
20. Both these issues are taken together for common discussion as they are interlinked with each other and to avoid the repetition of the facts.
21. It is stated in the Petition that the Petitioner is the mother of the deceased Mahesh. In order to prove this fact, PW 1 has produced Ex.P.11 and 12 i.e., Aadhar Card of deceased Mahesh and the petitioner. Upon going through the said documents, it clearly show that the Petitioner is the mother of the deceased Mahesh. Hence, the petitioner has proved that she is the legal heir of the deceased Mahesh. SCCH-14 13 MVC.1861/2023 Therefore, the Petitioner is considered as the dependent on the deceased Mahesh.
22. In the petition, the age of the deceased was shown as 33 years and his avocation is shown as flower decorator and was earning a sum of Rs.30,000/- per month. In this regard, petitioner has not produced any documents to prove his avocation and income. Therefore, in the absence of any income proof, this Tribunal is of the opinion that, the notional income to be assessed for the purpose of assessment of compensation.
23. The learned counsel for the respondent No.2 vehemently argued that the guidelines of the State Legal Service Authority are applicable only for the settlement of cases before the Lok Aadalath. The minimum wages fixed in the Minimum Wages Act to be considered while assessing the compensation by the MACT. In this regard he has relied upon the decision in the case of Hans raj (Supra). Wherein, Hon'ble Apex Court at para 6 held that " In view of the foregoing, it is to conclude that SCCH-14 14 MVC.1861/2023 henceforth, the guidelines, if any, issued by the State Legal Services Authority of the High Court would apply as guiding factor in the cases where the proof of income is not available and ordinarily to decide cases in Lok Adalath. Such guidelines are not binding either on the High Court or on MACT to determine just and fair compensation. The courts are at liberty to decide the amount of compensation while appreciating the evidence so brought on record and what is just and reasonable in the facts. In absence of such evidence, the guidelines of the legal service authority may be relied upon but only for guidance.
24. He also relied upon the decision in the case of Smt.Mariyamma (supra). Wherein, Hon'ble High Court of Karnataka at para 33 held that "the guidelines issued by Karnataka legal service authority regarding notional income for the purpose of settlement of the cases before the Lok Adalath may be adopted. Such guidelines cannot take the place of statutory guidelines and therefore it would be proper to rely on the wages fixed under the Minimum Wages Act." SCCH-14 15 MVC.1861/2023
25. The Hon'ble Apex Court in the case of Hans Raj (supra) has not stated that wages fixed under the Minimum Wages Act shall be considered by the Tribunal. In fact it is held that in the absence of proof of income the guidelines of legal services authority may be relied. But in the case of Mariyamma(supra) Hon'ble High Court held that wages fixed under the Minimum Wages Act shall be considered by the Tribunal.
26. At this stage, it is profitable to refer another judgment of Hon'ble High Court of Karnataka in MFA No.101144/2020 (MV-I) on 05.07.2023 between Ananda V/s Arjun & another. Wherein, at para no.9(b) held that " In the absence of any cogent material on record, it is for the courts and tribunals to assess the income notionally. The notional income fixed by Karnataka State Legal Service Authority for the accident of the year 2017 is Rs.10,250/-. In the absence 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/- for month and the same is assessed as the monthly of the injured SCCH-14 16 MVC.1861/2023 claimant".
27. It is Pivotal to note that subordinate courts are governed under Article 141 of Indian Constitution which deals with law of precedents. The decision relied by the learned counsel for Respondent No.2 is rendered by Division Bench, Hon'ble High Court of Karnataka on 06.12.2022. Another judgment relied by this court is rendered by Division Bench of Hon'ble High Court of Karnataka on 05.07.2023. As per the principles laid down by the constitutional courts in Catena of decisions, it would be culled out that in two decisions taking contrary by the division bench, then the recent one will prevail over the previous one. Hence, the decision relied by this court decided on 05.07.2023 is recent one and binding on this.
28. Therefore, considering the ratio of the recent decision this Tribunal consider the notional income fixed by the Karnataka State legal service authority. Since the accident has occurred in the year 2022, the notional income to be assessed SCCH-14 17 MVC.1861/2023 as per the guidelines of the Karnataka legal service authority i.e., Rs.15,500/-p.m. for the purpose of assessment of compensation.
29. Further, the Petitioners stated the age of the deceased Mahesh as 33 years at the time of the accident. As per Aadhar card of the deceased Mahesh i.e., Ex.P.11, the date of birth of Mahesh was shown as 08.02.1990. The alleged accident was occurred on 28.11.2022. That means, as on the date of accident, the age of the deceased Mahesh was 32 years and 3 months. Hence, the age of the deceased Mahesh to be taken at 32 years for the purpose of Assessment of compensation.
30. With this background, the quantum of compensation to which the Petitioners are entitled may be adjudicated. For the sake of convenience, discussion may be had under following heads :
SCCH-14 18 MVC.1861/2023
I. COMPENSATION TOWARDS LOSS OF CONSORTIUM, COMPENSATION TOWARDS LOSS OF ESTATE, COMPENSATION TOWARDS FUNERAL EXPENSES:
31. The deceased has left behind him, his mother. Hence, the Petitioner is considered as dependent. At this juncture, I would like to go through principles laid down in the decision reported in Special Leave Petition (Civil) No.25590/2014 (National Insurance Company Limited V/s Pranay Sethi and Others) wherein Hon'ble Apex Court has observed that : "Loss of estate has to be compensated by awarding Rupees 15,000/-, loss of consortium should be Rupees 40,000/- and funeral expenses should be Rupees 15,000/-".The aforesaid amounts should be enhanced @ 10% in every three years." As this Court has already observed that the Petitioner is mother of the deceased Mahesh, the Petitioner is entitled for a sum of Rupees 44,000/- towards loss of consortium and Rupees 16,500/- towards loss of estate and Rupees 16,500/- towards funeral expenses.
SCCH-14 19 MVC.1861/2023
IV. COMPENSATION TOWARDS LOSS OF LOVE AND AFFECTION,
32. Petitioner is the mother and she lost her son's love and care in her old age. Bearing in mind the relationship of the Petitioner with the deceased, I am of the opinion that awarding compensation of Rs.50,000/- under this head would be just and reasonable.
V. COMPENSATION TOWARDS TRANSPORTATION OF DEAD BODY:
33. The Petitioner might have spent some amount towards transportation of body of the deceased. Hence, I am of the opinion that awarding compensation of Rs.10,000/- under this head would be just and reasonable.
V. COMPENSATION TOWARDS LOSS OF DEPENDENCY:
34. It is pertinent to note here that as per the detailed discussion as made supra, the income of the deceased was notionally fixed at Rs.15,500/- p.m. SCCH-14 20 MVC.1861/2023 At this juncture, I would like to go through the decision reported in :
1) 2018 ACJ 740, the Hon'ble Supreme Court of India At New Delhi in between Manuswamy and others V/s.
Managing Director, Tamil Nadu State Trans. Corpn. Ltd, wherein it is held as under:
"Quantum fatal accident Principle of assessment Future prospects Deceased aged : 21, contract worker in a company - High Court did not consider future prospects while computing compensation - Whether claimants are entitled to compensation after addition of 40 per cent of income of the deceased towards future prospects "
- Held : - yes.
2) 2018 ACJ 5, the Hon'ble Supreme Court of India, at New Delhi in between Hem Raj Vs. Oriental Insurance Co. Ltd., and others wherein it is held as under :
"Quantum Fatal accident - Principles
of assessment Future prospects Deceased
aged 40 Upholding objections of insurance
company that principle of addition on
account of future prospects is not applicable
SCCH-14 21 MVC.1861/2023
where income of the deceased is
determined by guesswork, High Court
disallowed the addition of 50 per cent made by the Tribunal for future prospects while computing compensation - Whether addition on account of future prospects is admissible where minimum income is determined on guesswork in absence of proof of income Held: Yes: there cannot be distinction where there is evidence of income and where minimum income is determined on guesswork : executing Court directed to respondent compute entitlement of claimants by adding 40 per cent of income for future prospect and make corresponding deduction towards personal expenses".
The decision reported in Special Leave Petition (Civil) No.25590/2014 (National Insurance Company Limited V/s Pranay Sethi and Others) wherein Hon'ble Apex Court has observed that: "In case of self employed or fixed salary, the addition should be 40% below the age of 40 years". In this SCCH-14 22 MVC.1861/2023 Petition, the deceased was aged 32 years at the time of accident. Hence, towards future prospects 40% of the income has to be added. So, 40% of Rs.15,500/- comes to Rs.6,200/-. Therefore, the income of the deceased comes to Rs.21,700/- p.m. (Rs.15,500-00 + Rs.6,200-00). Further, as per the principles laid down in decision reported in (2009) 6 SCC 121 (Sarla Verma and Others Vs. Delhi Transport Corporation and another) the multiplier applicable is 16. In Sarla Verma's case, the Hon'ble Supreme Court of India has held that if the deceased is bachelor half of the income of the deceased may be deducted towards his personal and living expenses.
After deducting half of the income towards his personal expenses in Rs.21,700/- it comes to Rs.10,850/- (21,700-00 - 10,850-00) and multiplier applied is 16 which comes to Rs.20,83,200/ (10,850 x 12 x 16 = Rs.20,83,200/-). Thus, the Petitioners are entitled for compensation of Rs.20,83,200/ towards loss of dependency.
SCCH-14 23 MVC.1861/2023
35. TOTAL QUANTUM OF COMPENSATION TO WHICH THE PETITIONERS ARE ENTITLED:
1. Loss of consortium Rs. 44,000/-
2. Loss of Love and Affection Rs. 50,000/-
3. Loss of Estate Rs. 16,500/-
4. Funeral Expenses Rs. 16,500/-
5. Expenses of transportation Rs. 10,000/-
of dead body
6. Loss of Dependency Rs.20,83,200/ Total Rs.22,20,200/-
Thus, totally the Petitioner is awarded compensation of Rs.22,20,200/- with costs and simple interest at 6% p.a. from the date of this petition till the date of realization.
36. Regarding Liability : As already discussed in the Issue No.2, in this case the driver of the offending tipper lorry bearing Reg.No.KA-01-AD-0875 was charge-sheeted. Further, there is no dispute about the validity of the Insurance Policy of the offending vehicle as on the date of accident. Therefore, Respondent No.1 being the owner of the offending vehicle and SCCH-14 24 MVC.1861/2023 Respondent No.2 being the insurer are jointly and severally liable to pay compensation to the Petitioners. Accordingly, I answer Issue No.2 is in the "Affirmative" and Issue No.3 "Partly in the Affirmative".
37. Issue No.4 : From the above discussion, I am of the opinion that the Petitioner is entitled for compensation of Rs.22,20,200/- along with interest at the rate of 6% p.a. from the date of the Petition. In the result, I proceed to pass the following :
ORDER The Claim Petition filed by the Petitioner against the Respondents under Section 166 of Motor Vehicles Act is hereby allowed in part with costs.
The Petitioner is entitled for total compensation of Rs.22,20,200/- along with cost and simple interest at the rate of 6% p.a., from the date of the Petition SCCH-14 25 MVC.1861/2023 till the date of deposit of the Award amount.
The Respondent No.1 and 2 are jointly and severally liable to pay the compensation amount to the Petitioner.
However, Respondent No.2 being the insurer is directed to deposit the compensation amount as stated supra with interest at the rate of 6% p.a within 60 days from the date of this award.
After being deposit of the Award amount and interest by the Respondent No.2, out of the amount awarded to the Petitioner, 75% of the award amount is ordered to be paid to the Petitioner by way of E-payment and after her proper identification and the remaining 25% each of the award amount shall be kept in Fixed deposit in the name of Petitioner in any Nationalized or Scheduled Bank for a period of 3 years of her choice.
The Advocate fee is fixed at Rs.1,000/-.
SCCH-14 26 MVC.1861/2023Draw Award accordingly.
(Dictated to the stenographer, typed and computerized by her, corrected, signed and then pronounced by me in the open Court on this 06th day of November, 2024) (D.RAMESH) MEMBER, MACT, XVI ADDL. JUDGE, COURT OF SMALL CAUSES, BENGALURU.
Annexure Witnesses examined on behalf of the Petitioners :
P.W.1 : Gowramma P.W.2 : Siddaraju Documents marked as Exhibits for the Petitioners :
Ex.P1 True copy of FIR Ex.P2 True copy of Complaint Ex.P3 True copy of Spot Mahazar Ex.P4 True copy of Spot sketch Ex.P5 True copy of IMV report Ex.P6 True copy of Inquest Ex.P7 True copy of notice issued U/sec.133 of IMV Act Ex.P8 True copy of reply issued in respect of Ex.P7 Ex.P9 True copy of PM report Ex.P10 True copy of Charge sheet SCCH-14 27 MVC.1861/2023 Ex.P11 Notarized copy of Aadhar card Ex.P12 Notarized copy of Aadhar card Ex.P13 Notarized copy of PAN card
Witness examined on behalf of the Respondents :
RW.1 - Santosh.B.L Documents marked as Exhibits for the Respondents :
- Nil -
(D.RAMESH) MEMBER, MACT, XVI ADDL. JUDGE, COURT OF SMALL CAUSES, BENGALURU.