Bangalore District Court
Smt. Narayanamma vs Smt. K.Sangeetha on 4 February, 2015
IN THE COURT OF MOTOR ACCIDENT CLAIMS TRIBUNAL,
XX ADDL.SMALL CAUSES JUDGE, BANGALORE, (SCCH-22)
Dated this the 4th day of February, 2015
Present: Sri.N.SUBRAMANYA, M.Com., LLB.,
Member, MACT & XX ASCJ, Bangalore.
M.V.C. No.7715/2012
Petitioners : 1.Smt. Narayanamma,
W/o Late Chikkagotappa @ Beerappa
@ Gotappa,
Aged about 50 years,
2. Smt. Ulluramma W/o Siddappa,
D/o Late Chikkagotappa @ Beerappa
@ Gotappa,
Aged about 30 years,
R/at: Hogari Village, Kolar Taluk &
District.
3. Smt. Rathnamma W/o.Krishnappa,
W/o Late Chikkagotappa @ Beerappa
@ Gotappa,
Aged about 28 years,
R/at: Marasandra Village,
Bangalore Rural District.
4. Sri. Ullurappa,
S/o. Late Chikkagotappa @ Beerappa
@ Gotappa,
Aged about 26 years,
5. Smt. Nagamma W/o. Pillappa,
D/o. Late Chikkagotappa @ Beerappa
2 MVC.No.7715/2012
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@ Gotappa,
Aged about 24 years,
R/at: Seethigollahalli, Village,
Hosakote Taluk,
Bangalore Rural District.
6. Sri. Manjunath,
S/o Late Chikkagotappa @ Beerappa @
Gotappa,
Aged about 22 years,
The Petitioners No.1,4, & 6 are
R/at: Thavarekere Village,
Hosakote Taluk,
Bangalore Rural District.
(By Sri. N. Manjunath, Advocate.)
-Versus-
Respondent: 1. Smt. K.Sangeetha,
W/o. Ramesh,
Major by age,
R/at: No.23,
St.Thomas Town,
Kacharakanahalli,
Bangalore -560084
(By Sri. M.D. Naveen. adv.)
2. M/s. IFFCO- Tokiyo, General
Insurance Co.Ltd.,
No.41, Cristu Complex,
2nd Floor, Lavelle road,
Bangalore-01.
(By Sri. B.T.Rudra Murthy adv.)
3 MVC.No.7715/2012
SCCH-22
JUDGMENT
Petitioners have filed this petition under section 166 of the Motor Vehicles Act, 1989 for the award of compensation of Rs.15,00,000/- for the death of Sri.Chikkagotappa @ Beerappa @ Gotappa., (in short as deceased) in a Motor Vehicle's Accident.
2. Brief facts of the petitioners case as are that on 18.05.2012 the deceased herein Chikkagotappa @ Beerappa @ Gotappa was going towards Tavarekere from Hosakote by traveling in a Passenger Auto bearing reg. No.KA-53-A-6099 along with his wife the 1st petitioner herein and grand children, driven by its driver slowly, cautiously on the correct side of the road. On the way at about 3.30 p.m. near MVJ hospital, on Bangalore - Kolar NH-4 road, one Maruthi EECO bearing reg. No. KA-03-D- 7246, came from same direction i.e., Hosakote side, driven by its driver at high speed in rash and negligent manner, went to the wrong side of the road and dashed violently against the said passenger Auto rear side. Due 4 MVC.No.7715/2012 SCCH-22 to impact, the deceased sustained grievous injuries. Immediately he was taken to M.V.J. Hospital, after first aid he was referred to R.L.Jalappa Hospital, Kolar, wherein in course of treatment he succumbed t the said injuries on 18.06.2012 at about 18.06.2012 at about 4.15 a.m. Prior to the accident, deceased was hale and healthy and was aged 55 years and was working as a Coolie and he was earning Rs.9,000/- p.m. After his death the petitioners do not have any other source of income for their livelihood. Due to untimely death of the deceased, the petitioners are put lot of mental agony and untold misery. Petitioner have contended that they have spent a sum of Rs.2,00,000/- towards medical, death, transportation of dead body and funeral obsequies.
3. They have contended that the accident had occurred due to rash and negligent driving of the Maruthi EECO car bearing reg. No.KA-03-D-7246 by its driver. 1st Respondent is the registered owner of the above said offending vehicle and 2nd respondents is the Insurer 5 MVC.No.7715/2012 SCCH-22 being the driver of the Maruthi EECO Car bearing Reg. No.KA-03-D-7246. Hence, they are liable to pay compensation and the petitioners have prayed for award of compensation of Rs.15,00,000/- from the respondents with interest from the date of the petition till realisation.
4. In pursuance of the notice, respondent No.1 and 2 have appeared before the Tribunal through their counsels and separate filed written statement.
5. The 1st respondent stated that the claim petition filed by the petitioner is not maintainable either in law or on facts hence the petition is liable to be dismissed in limine. She admits that she is the RC Owner of Maruthi EECO car bearing reg.No.KA-03-D- 7246 as on the date of the alleged accident and has engaged driver who is having valid driving licence to drive car. The Maruthi EECO bearing reg.No.KA-03-D-7246 has been duly insured with 2nd respondent insurance company vide police No.80298561 which is valid from 18-05-2012 to 17-05-2013. The negligence is on the part 6 MVC.No.7715/2012 SCCH-22 of the petitioner's who are passengers of auto rickshaw vehicle without observing any traffic rules and regulation and the alleged accident occurred on 18-05-2012, hence the contributory negligence has to be taken while considering the above said case of the petitioner. Hence, for all these reasons prayed for dismissal of claim petition.
6. The 2nd respondent submits that he is not the insurer of Maruthi car bearing reg.No.KA-03-D-7246 as on the date of alleged accident i.e., 18-05-2012. The Cover Note particulars bearing No.70308362 furnished by the petitioners is false. After through search it found that the above said cover note is a fake and he has not received any premium from the 1st respondent to issue any cover note or policy, which covers the date of accident. If the petitioner and R.C.owner proves the issuance of policy, as on the date of accident then the liability of this respondent is subject to terms and conditions of the policy and valid and effective driving 7 MVC.No.7715/2012 SCCH-22 licence. The driver of Auto Rickshaw was solely responsible for the accident and without impleading the owner and the insurer of the Auto rickshaw bearing reg.No.KA-53-A-6099 the entire petition is not maintainable for non -joinder of necessary parties. Hence, for all these reasons prayed for dismissal of claim petition.
7. The basis of the above pleadings, following issues has been framed:
ISSUES
1. Whether petitioners prove that the accident that occurred on 18.05.2012 at about 3.30 p.m., near M.V.J. Hospital Gate, on Bangalore- Kolar NH-4 Road, Hosakote Taluk, was caused due to the rash and negligent driving of the Maruthi EECO bearing Reg. No.KA-03-D-7246 by its driver, who dashed against deceased Chikkagotappa @ Beerappa @ Gotappa and due to which deceased sustained grievous injuries and succumbed to it?
2. Whether petitioners are entitled for compensation? If so, for what amount and from whom?
3. What order or award?8 MVC.No.7715/2012
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8. Petitioner to prove the above said issues, has got examined himself as PW1 and got examined and got marked Exs.P.1 to P.18 and closed their side. The respondent No.2 Assistant Manager RW.1 has got examined and got marked Ex.R.1 document and closed its side.
9. Heard arguments both sides.
10. My answer the above issues are as under:
Issue No.1: Partly in the partly Affirmative Issue No.2: Yes, to the extent as shown in the final order, from Respondent No.1.
Issue No.3: As per final order, for the following:
REASONS
11. Issue No.1 The 1st Petitioner, wife of the deceased examined as PW1. She has filed affidavit evidence as her examination in chief narrating the accident as mentioned in the above pleadings.
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12. In order to substantiate the said facts, petitioner has produced true copies of FIR, complaint, Memo, Mahazar, IMV report, Inquest report, PM report and Charge sheet pertaining to Crime No.200/12 of Hoskote Traffic Police Station, marked as Exs.P.1 to P8 respectively. On going through the documents placed on record and the Charge sheet-Ex.P.8, it reveals that on the complaint of Chikka Thirumalappa, the police have investigated the matter and have found that the accident in question to have occurred due to the rash and negligent riding of Hero Honda Motor bike bearing reg. no.KA-02-HG-3631 by its rider.
13. The petitioners have not examined any independent eye witnesses to the incident. It is the primary burden on the petitioners to prove the rash and negligent riding of the rider of the offending vehicle. The respondents have specifically taken contention of contributory negligence. PW-1 is not eye witness. Though there are other persons travelling in the Auto belonging 10 MVC.No.7715/2012 SCCH-22 to the deceased family, the petitioners have failed to examine them. PW-1 in the cross examination by the 1st respondent deposed that there were three passengers travelling in the Auto, it was suggested that 15-20 passengers were travelling. But, in the charge sheet at Ex.P.8, it has been specifically mentioned that about 7 passengers who are at serial no.CW2 to 8 mentioned in the charge sheet were traveling. It is a passenger vehicle wherein maximum three passengers can travel. But, total 7 passengers were travelling and there are every chances of the driver of Auto was not having control over the Auto has also contributed his negligence to the accident. From the materials available on record it can be clearly held that there is contributory negligence by the Auto also in view of carrying excess passengers.
1. In 2012 AIR SCW 2241 between Surinder Kumar Arora & another vs. Dr. Manoj Bisla & ors.
"Motor Vehicles Act (59 of 1988), Ss. 163-A - Accident - Claim for compensation 11 MVC.No.7715/2012 SCCH-22
- Filed by parents of deceased under S.166 and not under S.163A - Onus to prove act of rash and negligent driving by driver of vehicle was on claimants - Failure to discharge, by adducing cogent evidence - Rejection of claim filed by claimants under S.166 - Was proper".
The court cannot rely upon the contents of charge sheet and other materials and has to assess the evidence independently before the case on hand as per the following decision.
2. In ILR 2009 KAR 2921 between Bajaj Alliance General Insurance Company Limited vs. B.C. Kumar and another, it is held that:-
"The M.A.C.T should not and ought not to place sole reliance on the judgment of the Criminal Court while considering the issue of the factum of the accident and the consequent negligence, as stated in the claim petition filed before the Tribunal. But, the Tribunal will have to assess the evidence before it independently of any 12 MVC.No.7715/2012 SCCH-22 finding of the Criminal Court on the question of the driver pleading guilty."
Hence, I answer Issue no.1 in partly affirmative.
14. Issue No.2:
LOSS OF DEPENDENCY:-
There is no dispute of relationship between the petitioners and deceased. Petitioners have also produced Geonogical tree at Ex.P.9 and Ex.P.10 to P.12 - Ration cards and Ex.P.13 to 16 Voter ID cards. All these documents prove the relationship of deceased with petitioners.
There is no proof of income of the deceased. It is stated in the petition that he was a coolie and earning a sum of Rs.9,000/- p.m. and the age of the deceased is stated as 55 years. In the absence of any proof of income a notional income of Rs.5,000/- can be taken. As per Ex.P.11, Ration card the age of the deceased wherein it is clearly mentioned the age of the deceased as 65 years in the year 2009. Hence, he was aged 69 years as on the 13 MVC.No.7715/2012 SCCH-22 date of accident. PW-1 also in the cross examination clearly admits about the Ex.P.11 and age of the deceased as 65 years. Since, deceased was married 1/3rd of his income is to be deducted towards his personal expenses. Hence, his income can be taken as Rs.3,333/-. As per citation reported in (2009) 6 SCC 121, in the case between Sarala Verma -Versus- Delhi Transport Corporation, the multiplier applicable for the age group of 69 years is "5". Hence, the loss of dependency would be Rs.3,333 x 12 x 5= Rs.1,99,980/-. Hence, the said amount of Rs.1,99,980/- rounded off to Rs.2,00,000/- is awarded under the head 'loss of dependency'.
15. LOSS OF CONSORTIUM:-
A sum of Rs.10,000/- is awarded towards loss of consortium to petitioner no.1 who is the wife of the deceased.
16. LOSS OF ESTATE:-
A sum of Rs.10,000/- is awarded towards loss of estate to petitioner no.1 who is the wife of the petitioner. 14 MVC.No.7715/2012
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17. FUNERAL EXPENSES:-
It is stated in the petition as well as in the evidence of PW 1 that, they have spent a sum of Rs.3,00,000/- towards transportation of dead body and funeral and obsequies ceremony. No documents are forthcoming for having spent money towards transportation of dead body, and funeral expenses. Hence, in the absence of proof, a sum of Rs.10,000/- is awarded towards the funeral expenses of the deceased.
18. LOSS OF LOVE AND AFFECTION:-
The petitioners Nos.2 to 6 are the daughters and sons of the deceased. Hence, they are entitled for a sum of Rs.10,000/- each. In all Rs.50,000/- is awarded under the head "Loss of love and affection".
19. Thus, the petitioners are entitled for compensation under the following heads as follows: 15 MVC.No.7715/2012
SCCH-22 For Loss of Dependency Rs. 2,00,000-00 For Loss of consortium Rs. 10,000-00 For Loss of Estate Rs. 10,000-00 For Loss of love and affection Rs. 50,000-00 For Funeral and obsequies Rs. 10,000-00 ceremony TOTAL Rs.2,80,000-00
20. Thus, in all, the petitioners are entitled for total compensation in a sum of Rs.2,80,000/-. The above said compensation awarded is just, fair and adequate under the facts and circumstances of the case.
21. With regard to Liability:
2nd respondent has specifically denied the issuance of policy in the written statement and evidence of RW-1. They have specifically stated regarding the cover note no.70308362 mentioned in column no.16 of petition, is fake and it belongs to some other person. They have also produced Ex.R.1 - Policy with reference to the above cover note and it was issued to one Krishan Raheja for the vehicle No.HR-51-AB-8656. Hence, as per the above cover note, it does not relate to the offending vehicle. 16 MVC.No.7715/2012
SCCH-22 The 1st respondent owner in the written statement in para 3 stated that they have insured the offending vehicle with 2nd respondent vide policy no.80298561 which is valid from 18.05.2012 to 17.05.2013. Though the 1st respondent cross examined PW-1, she has failed to cross examine RW-1. The date of accident is itself on 18.05.2012 and contention of 1st respondent that policy obtained on the said date itself creates doubt about the existence of policy. 1st respondent might have obtained policy after accident and hence she has failed to produce the policy and adverse inference has to be drawn against 1st respondent for not producing the policy. Further 1st respondent failed to adduce the evidence and produce any documents with respect to the policy. Hence, contention of 2nd respondent regarding obtaining policy cannot be accepted and 1st respondent totally failed to prove said aspect. When 2nd respondent insurance company has denied the existence of policy, it is the burden on the petitioner and owner to prove the issuance of policy and validity as per the decision reported in :- 17 MVC.No.7715/2012
SCCH-22 In ILR 1997 KAR 1061 between the Oriental Insurance Co. Ltd., vs. N.S.Devaraja and others:-
"Evidence act, 1872 section 102 - and section 110 - of the Motor vehicles act, 1939 - When the insurance company stated in its objection statement that the vehicle was not insured, the burden of proving that the vehicle was insured lay either with the claimant or the owner of vehicle".
Hence, 2nd respondent is not liable to pay any compensation and 1st respondent is alone liable to pay the compensation. Regarding the apportionment of negligence as it is discussed at issue no.1, the driver of auto in which deceased was travelling is to be held negligible at the ratio of 40% and driver of 1st respondent is to be held at the ratio of 60%, which comes at 40:60 and 1st respondent is liable to pay 60% of compensation of Rs.1,68,000/- to the petitioners with interest at 8% p.a. from the date of petition till realization as per the citations reported in:-18 MVC.No.7715/2012
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1. ILR 2009 KAR 385 between Smt. Nasreen Banu and others vs. The Divisional Manager and another.
2. 2005 ACJ 644 between M.V.Chowdappa vs. Mohan Breweries and Distilleries Ltd. and another.
Hence, I answer Issue No.2 in the affirmative accordingly.
22. Issue No.3: In the light of my findings on Issue Nos.1 and 2, I proceed to pass the following:
ORDER The claim petition filed by the petitioners under Sec.166 of Motor Vehicle's Act, 1989 is hereby allowed in part with cost.
The claim petition against the 2nd respondent is hereby dismissed.
The petitioners are entitled for total compensation of Rs.1,68,000/- (Rupees One Lakh Sixty Eight thousand only) with interest at 8% p.a. from the date of petition till realisation.19 MVC.No.7715/2012
SCCH-22 The Respondent no.1 alone is liable to pay the above said compensation to the petitioners and directed to deposit the same within 30 days from the date of the award.
PW-1 has admitted that petitioner nos.2, 3 and 5 are residing with their husbands and petitioner no.4 is residing separately and his mother used to stay with both them. Petitioner no.1 being the wife is entitled for higher share of 60% in the compensation amount and petitioner no.4 and 6 are entitled for 20% each in the total compensation amount.
Entire compensation amount awarded to petitioner nos.4 and 6 are ordered to be paid as it is a meager amount.
Advocate's fee is fixed at Rs.1000/-. Draw award accordingly.
(Dictated to the Stenographer through online, corrected, revised and then signed and pronounced by me in the Open Court dated this the 04th day of February 2015).
(N.SUBRAMANYA) Member, MACT & XX ASCJ Bangalore.20 MVC.No.7715/2012
SCCH-22 ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PETITIONERS:
PW1 Manjunath LIST OF DOCUMENTS MARKED ON BEHALF OF PETITIONERS:
Ex.P1 Copy of FIR Ex.P2 Copy of Complaint Ex.P3 Copy of Memo Ex.P4 Copy of Mahazar Ex.P5 Copy of IMV report Ex.P6 Copy of Inquest report Ex.P7 Copy of PM report Ex.P8 Copy of Charge sheet Ex.P9 Copy of Genealogical tree
Ex.P10-12 Notarized three copies of ration card Ex.P13-16 Notarized four copies of election ID cards Ex.P17 76 medical bills Ex.P18 31 medical prescriptions LIST OF WITNESSES EXAMINED ON BEHALF OF RESPONDENTS:
RW.1 Smt. Ramya K.R. LIST OF DOCUMENTS MARKED ON BEHALF OF RESPONDENTS:
Ex.R1 Copy of insurance policy
Member, MACT & XX ASCJ,
Bangalore.
**