Bangalore District Court
Smt. Sujatha Nelapati vs The Divisional Manager on 19 December, 2018
BEFORE THE COURT OF SMALL CAUSES AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, AT BENGALURU
(SCCH-16)
Present: Sri. Subramanya N., B.A.L, LL.B.,
X Addl. Judge, Court of Small Causes
Bengaluru.
MVC No.5900/2016
Dated: 19th December 2018
Petitioners 1. Smt. Sujatha Nelapati,
W/o Late Srinivasulu Maddala,
Age 39 years,
2. Kumari Sansita,
D/o Late Srinivasulu Maddala,
Age 9 years,
3. Ishanth,
S/o Late Srinivasulu Maddala,
Aged about 6 years,
4. Smt. Maddala Audemma,
W/o Late Venkataiah,
Aged about 66 years,
The petitioner No.1, 2 and 3 are
R/at No.B-601, B-Block, 6th Floor,
Aditi Eloquent Apartment,
Vijinapura, Ramamurthy Nagar,
Bengaluru.
Petitioner No.2 and 3 are being
minors rept. By their mother and
natural guardian
Sujatha Nelapati.
2 (SCCH-16) MVC 5900/2016
The 4th Petitioner is
R/at Kothapalli Village,
Anantha Sagaram District,
SPSR Nellore, Andra Pradesh.
(Sri H.V. Kumara Swamy,
Advocate)
V/s
Respondent The Divisional Manager,
Bengaluru Metropolitan Transport
Corporation Ltd.,
Shanthinagar, K.H. Road,
Bengaluru - 560 027.
(Sri M.S. Basavaraju, Advocate)
JUDGMENT
This petition has been filed by the petitioners under Section 166 of M.V. Act, seeking compensation of Rs.5,00,00,000/- from the respondent on account of death of one Srinivasulu Maddala in vehicular accident.
2. The averments of the petition, in brief, are that on 22- 02-2016 at about 10.45 a.m., the deceased namely Srinivasulu Maddala was going towards Bengaluru from Marathahalli in a motorcycle bearing No.KA-02-EN-9860 slowly and cautiously. At that point of time, the driver of the BMTC bus bearing No.KA-01-F-8813 drove the same in rash and negligent manner and dashed against the motorcycle from behind. Due to the impact, the deceased sustained fatal injuries and died on the spot. Then the postmortem examination was conducted in 3 (SCCH-16) MVC 5900/2016 Bowring and Lady Curzon Hospital. Later, the petitioners performed the last rites of the deceased. Prior to the accident, the deceased was working as Software Engineer in Juniper Networks India Pvt. Ltd. and earning Rs.1,90,123/- per month. But on account of his untimely death, the petitioners have lost dependency and love and affection. Therefore, the respondent is liable to pay compensation.
3. In response to the notice, the respondent has entered his appearance before the Tribunal through his advocate, and filed written statement admitting the occurrence of the accident on the relevant point of time and death of deceased therein due to the fatal injuries. His defence is that the driver of the BMTC bus was driving the same as per the scheduled trip from K.R.Puram to Silk board slowly and cautiously on the left side of the road. Near Marthahalli Multiplex bus stop, another BMTC bus bearing No.KA-01-F-1049 had been parked on the extreme left side of the road due to break down and the mechanics were carrying out the repair. Having seen this, the driver of the offending vehicle slowed down the speed, took the bus to the right side and was moving by the side of parked bus. At that time, the deceased came from behind by riding the motorcycle rashly and negligently and tried to sneak between the two buses. Since the space between the two buses was very narrow, the left handle of the motorcycle touched the parked bus as a result of which the deceased fell down. Thus the 4 (SCCH-16) MVC 5900/2016 accident has happened due to the sole negligence of the deceased himself. However, in collusion with the police a false case has been registered and a false charge sheet has been filed against the driver of the BMTC bus to have the wrongful gain. On these grounds, he has prayed for the dismissal of the petition.
4. Based on the pleadings set out by the parties, this Tribunal has framed the following issues.
1) Whether the petitioners prove that deceased Srinivasulu Maddala succumbed to the injuries sustained in vehicular accident alleged to have occurred on 22-06-2016 due to the rash and negligent driving of the driver of BMTC bus bearing No.KA-01-F-8813?
2) Whether the petitioners are entitled to compensation? If so, what is the quantum and from whom?
3) What Order or Award?
5. In order to prove the above said issues, petitioners have adduced both oral and documentary evidence. First and fourth petitioners have been examined as PW1 and PW3, and 22 documents have been got marked. They have also examined one witness as PW2. On the other hand, the driver of the BMTC 5 (SCCH-16) MVC 5900/2016 bus has been examined as RW1 and no documents have been got marked.
6. I have heard arguments advanced by both parties. On hearing the arguments and on going through the materials on record, my findings on the above issues are as under:
Issue No.1 : In the Affirmative Issue No.2 : Partly in the Affirmative Issue No.3 : As per final order REASONS ISSUE NO.1:
7. In the beginning itself, I deem it proper to state that in this case the occurrence of the accident on 22-06-2016 between the motorcycle bearing No.KA-02-EN-9860 and the BMTC bus bearing No.KA-01-F-8813 is not disputed. Likewise, the death of the deceased by name Srinivasulu Maddala in the said accident is also not in dispute.
8. According to the petitioners, the accident has occurred due to the negligence of the driver of the BMTC bus. Whereas, the respondent has attributed the negligence to the deceased himself. Therefore, in this case, as per the ratio laid down in the decisions reported in 2007 ACJ 1284 and 2014 AIR SCW 1081, the burden is upon the petitioners to establish that the actionable negligence is on the part of driver of the BMTC Bus, but not on the part of the deceased.
6 (SCCH-16) MVC 5900/2016
9. The first and fourth petitioners have testified regarding the actionable negligence for the occurrence of the accident. They have reiterated all the averments of the petition. It is their evidence that the accident has taken place due to the negligence of driver of the BMTC bus. So as to corroborate their testimony, they have placed much reliance on the police documents. Per contra, the driver of the BMTC bus has been examined by the respondent to disprove the case of the petitioners. All the witnesses referred to above have been subjected to cross- examination. Their evidence has to be evaluated in the light of the facts asserted by the petitioners and defence set up by the respondent.
10. On perusal of the documents, it is observed that the Airport Traffic Police have registered a crime against the driver of the BMTC bus for the offences punishable under Sections 279 and 304(A) of IPC based on the complaint given by one Jayasheelan. During investigation, they have got examined the vehicles involved in the accident by IMV Inspector and obtained his report as per Ex.P7. From this document it is explicitly clear that two vehicles i.e., motorcycle and BMTC bus were involved in the accident and the accident was not the result of any mechanical defects of these vehicles.
11. There is no need to say anything about inquest and postmortem report inasmuch as the cause of death is undisputedly due to the accidental injuries. No doubt true, 7 (SCCH-16) MVC 5900/2016 after the due investigation the police have filed charge sheet against the driver of the BMTC bus only. It is a settled legal proposition that the charge sheet is not a conclusive proof, but it is a corroborative piece of evidence. Just because the charge sheet has been filed against the driver of the BMTC bus, it can not be said that he alone is responsible for the accident. What the Tribunal has to do is that it will have to assess the evidence independently to decide as to due to whose fault the accident was caused.
12. At this juncture, I have perused the cross-examination of PW1 and PW3. From their cross-examination, it is forthcoming that they are not the eye-witnesses and they are deposing based on the documents. So their evidence needs corroboration from the documentary evidence. Therefore, I would like to have a look at spot mahazar, sketch and the IMV report. The spot mahazar evidences that the accident has taken place on the outer ring road which runs north-south. There is a median in the center of this road and the total width of one side road is 36 feet. On either side of this road there is 20 feet service road and thereafter 3 feet footpath. At the place of occurrence the road is straight and there is no obstacle to the vision of the drivers of the vehicles.
13. The sketch reflects that one BMTC bus bearing No.KA-01-F-1049 was parked on the left side of the road. At that time, the offending vehicle came in the same direction and 8 (SCCH-16) MVC 5900/2016 hit the motorcycle which was behind the parked bus. It is suggested to PW1 and PW3 that the accident has happened due to the negligence of the deceased as he was trying to sneak in between two buses. This suggestion has been denied by both of them. Thus, nothing has been elicited from their mouth to show that the accident was due to the negligence of deceased himself and the same has happened in the manner as contended by the respondent.
14. Now let me see the IMV report (Ex.P7). As per this report, the radiator grill, front wind screen glass and right side middle portion of front shape of the offending vehicle were damaged while the rear right side of the body and indicator assembly of the parked bus was damaged. In so far as motorcycle is concerned, its right side rear view, crash guard, silencer and left crash guard have been damaged. Even RW1 has admitted in his cross-examination that the front wind shield of his bus was damaged and the radiator grill is located in the front middle portion of the bus. The very damages being caused to the vehicles involved in the accident clearly show that the accident has not happened in the manner as contended by the respondent. If the accident had really happened in such a manner as contended by the respondent, the front portion of the offending vehicle and back portion of the parked bus would not have been damaged. Instead, the right portion of the parked vehicle and left portion of the offending vehicle would 9 (SCCH-16) MVC 5900/2016 have been damaged. Besides, the admission given by the RW1 also clearly indicates that the accident has happened as alleged by the claimants. As such, the defence set up by the respondent is unbelievable. On the other hand, the charge sheet and other police documents completely corroborate the evidence of PW1 and PW3, and hence, their evidence is acceptable. For this reason, I come to the conclusion that the actionable negligence on the part of the driver of the offending vehicle is proved. Accordingly, I answer issue No.1 in the affirmative.
ISSUE NO.2:
15. Now the petitioners have to establish that they are the legal representatives of the deceased. They claimed to be wife, children and mother of the deceased. To prove their relationship, they produced marriage certificate, Aadhar cards and birth certificates which are at Ex.P10 to Ex.P12 and Ex.P22.
These documents manifestly make it clear that petitioners are none other than wife, children and mother of the deceased. Thus, there is sufficient evidence to establish that the petitioners are the legal heirs of the deceased. As a consequence, petitioners herein are entitled to get the compensation on account of the death of the deceased.
16. For the determination of the quantum of compensation, Tribunal has to take into account the age, income and occupation of the deceased. Firstly I wish to see 10 (SCCH-16) MVC 5900/2016 what the avocation and income of deceased was. According to petitioners, deceased was working as Software Engineer in Juniper Networks India Pvt. Ltd., and drawing salary of Rs.1,90,123/- per month. To substantiate this aspect they have produced marks cards, degree certificate, convocation certificate, B. Tech and M. Tech marks cards as per Ex.P13 to Ex.P17. They have also examined one Adyta Rautela as PW2. She has categorically deposed that the deceased was working as Software Engineer and getting salary Rs.1,90,123/-. To support her version she has produced five pay slips, employment agreement and letter dated 22-06-2016, which were marked as Ex.P19 to Ex.P21. Despite cross-examination, the respondent could not shake the credibility of her evidence. So, it can be said with certainty that from the evidence of PW2 coupled with the documents, the occupation and income of the deceased is established. However, it is noticed from the pay slips for the month of January, April and May the gross salary of the deceased was Rs.1,90,123/-. Out of this amount the professional tax to the tune of Rs.200/- and the income tax to the tune of Rs.34,159/-, totally amounting to Rs.34,359/- has to be lessened. After deduction of this amount, the total monthly income of the deceased works out to Rs.1,55,764/-. This is what the amount which is regarded as the income of the deceased.
17. According to petitioners, the age of deceased as on the date of accident was 39 years. In this regard they have 11 (SCCH-16) MVC 5900/2016 relied upon Ex.P9 PAN Card, in which his date of birth is mentioned as 11-01-1977. As per this document his age was 39 years at the time of accident. Hence, the correct multiplier applicable to this case is 15. The Hon'ble Supreme Court in a decision reported in AIR 2017 SC 5157, future prospects has to be added if the deceased had permanent job or fixed salary or was self employed. The deceased of this case had permanent job. Therefore, in view of the ratio laid down in the supra decision, 50% future prospects is added. Thus the total income comes to Rs.2,33,646/-. The evidence on record goes to show that there are four dependents. Therefore, 1/4th of his income is to be deducted towards personal expenses. After deduction, the net income will be Rs.1,75,234.5/-. The annual income multiplied by 15 works out to Rs.3,15,42,210/- (1,75,234.5x12x15) for which, the petitioners are entitled towards loss of dependency.
18. If deceased had been alive, he would have undoubtedly contributed his savings for the maintenance of the petitioners. Owing to his sudden death, they had to loose the estate of the deceased. In a recent decision reported in AIR 2017 SUPREME COURT 5157, the Hon'ble Apex Court has formulated reasonable figures in respect of the compensation awardable on conventional heads namely loss of estate, loss of consortium and funeral expenses. So, relying upon the aforesaid decision, Rs.40,000/- is awarded towards loss of 12 (SCCH-16) MVC 5900/2016 consortium and Rs.30,000/- is awarded towards loss of estate and funeral and transportation expenses.
19. The details of compensation I propose to award are as under:
Sl. Head of Compensation Amount/Rs
No.
1. Loss of dependency 3,15,42,210-00
2. Loss of consortium 40,000-00
3. Loss of estate 15,000-00
4. Funeral and transportation 15,000-00
expenses
Total 3,16,12,210-00
20. In all, the petitioners are entitled to Rs.3,16,12,210/-, which is rounded off to Rs.3,16,12,500/-. In view of the decision of the Hon'ble Supreme Court reported in 2013 AIR SCW 5375, they are entitled to interest at 9% per annum.
Liability:
21. It is an admitted fact that the respondent is the owner of the BMTC bus. The accident has occurred due to the negligence of driver of the said bus and as such, it is the respondent which is vicariously liable to pay compensation. Hence, this issue is answered partly in the affirmative.
ISSUE NO.3:
22. In view of my findings, the petition deserves to be allowed in part. Hence, I proceed to pass the following:
13 (SCCH-16) MVC 5900/2016 ORDER The petition filed by the petitioners is partly allowed with cost.
The petitioners are entitled to compensation of Rs.3,16,12,500/- (Rupees three crore, sixteen lakh, twelve thousand and five hundred only) with interest at the rate of 9% p.a., from the date of petition till realisation.
The respondent is liable to pay the compensation amount within two months from the date of this order.
Compensation amount is apportioned as follows:-
Petitioner No.1 - Wife 40%
Petitioner No.2 - Daughter 15%
Petitioner No.3 - Son 15%
Petitioner No.4 - Mother 30%
Out of the said compensation amount
awarded, 40% of the compensation amount with proportionate interest shall be deposited in the name of the petitioner No.1 and 4 as FD in any nationalized bank for a period of two years (without any encumbrance or premature withdrawal) with 14 (SCCH-16) MVC 5900/2016 liberty to draw the accrued interest periodically and the remaining 60% amount with proportionate interest shall be released to them through A/c payee cheque on proper identification and verification.
The compensation amount allotted to the share of petitioner Nos.2 and 3 shall be deposited in their names as FD in any nationalized bank of the choice of 1st petitioner till they attain age of majority with liberty to draw periodical interest.
Advocate's fee is fixed at Rs.1,000/-.
Draw an award accordingly.
(Dictated to the stenographer, transcribed by her, corrected and then pronounced in the open court this the 19th day of December 2018) (Subramanya N.) Member, MACT, Bengaluru.
ANNEXURE Witnesses examined on behalf of petitioners:
PW1 Smt. Sujatha Nelapati PW2 Smt. Aditi Rautela PW3 Smt. Maddala Audeamma
Documents marked on behalf of petitioners:
Ex.P1 FIR 15 (SCCH-16) MVC 5900/2016 Ex.P2 Complaint Ex.P3 Mahazar Ex.P4 Sketch Ex.P5 Inquest Ex.P6 Postmortem Report Ex.P7 IMV Report Ex.P8 Charge Sheet Ex.P9 NC of PAN Card Ex.P10 NC of Marriage Certificate Ex.P11 NC of 4 Aadhaar Cards Ex.P12 NC of 2 Birth Certificates Ex.P13 NC of Marks Card Ex.P14 NC of Degree Certificate Ex.P15 NC of Convocation Certificate Ex.P16 NC of 4 Marks Cards relating to B. Tech Ex.P17 NC of 3 Marks Cards relating to M. Tech Ex.P18 Authorization Letter Ex.P19 5 Pay Slips Ex.P20 Letter dated 22-06-2016 Ex.P21 Employment Agreement Ex.P22 NC of Aadhar Card
Witnesses examined on behalf of respondent:
RW1 Sri Ravikumar 16 (SCCH-16) MVC 5900/2016
Documents marked on behalf of the respondent:
Nil (Subramanya N.) Member, MACT, Bengaluru.