Bangalore District Court
Smt. Naseemunissa vs Smt. Kanmani on 15 December, 2016
BEFORE THE COURT OF SMALL CAUSES AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, AT BANGALORE (SCCH-16)
PRESENT: SRI SATISH J.BALI,
B.Com., LL.M.,
X Addl. Judge, Court of Small Causes
(SCCH-16) Bangalore.
DATED THIS THE 15th DAY OF DECEMBER 2016
MVC.No.2330/2016
****
Petitioners Smt. Naseemunissa,
Aged 60 years,
W/o Late Abdul Rauf,
No.191, Middle School Street,
New Colony, Garageshwari,
T. Narsipura Taluk,
Mysore District - 571 110.
(Sri Irshad Ahmed K., Advocate)
V/s.
Respondents 1. Smt. Kanmani,
Aged major,
W/o c. Thirumurugan,
Site No.18/1,
Gayathri Nilayam,
Basavanapura main road,
14th Cross, K.R. Puram,
Bangalore - 560 036.
(Exparte)
2. The Chief Manager,
SBI General Insurance
Policy Issuing Office,
Natraj 101, 201 and 301
Junction of western express
highway & Andheri Kurla road,
2 (SCCH-16) MVC 2330/2016
Andheri East,
Mumbai - 400 069.
(Sri Ravi S. Samprathi,
Advocate)
JUDGMENT
The petitioner being the mother of the deceased Akthar Sayeed has filed this claim petition under Section 166 of Motor Vehicles Act, 1989, claiming compensation on account of death of her son in a road traffic accident which took place on 27-02-2015.
2. The brief facts of the petition averments are as under:
On the above said date at about 10.15 a.m., the deceased as a pillion rider along with his friend proceeding on a motor cycle bearing No.KA-02-EJ-5277. When the deceased was waiting near dargah signal Hosur National Highway, at that time, the driver of the tanker lorry bearing No.KA-53-A- 9851 came in a rash and negligent manner and dashed against the deceased motor cycle from back side, because of which, the deceased and rider both were died. Immediately after the accident, the deceased body was taken to hospital to conduct postmortem and after postmortem, the funeral was
3 (SCCH-16) MVC 2330/2016 conducted in a native place at Mysore. It is submitted that, the deceased was aged about 27 years and working in M/s. Schneider Electric India Pvt. Ltd., as a Production Engineer and drawing a salary of Rs.26,567/- per month. The jurisdictional police have registered a case against the above said driver of the tanker. Due to the sudden demise of the deceased, petitioner lost loving son and sole bread earner. The respondent No.1 being the owner and respondent No.2 being the insurer of the above said tanker are jointly and severally liable to pay compensation. Hence, she prayed to allow the petition.
3. In response to the notice, the respondent No.2 appeared, whereas respondent No.1 placed exparte, as she failed to appear before the court.
4. The respondent No.2 by way of his objections admitted that, it had issued a policy in respect of the tanker bearing No.KA-53-9851 and same was valid as on the date of accident, but its liability is subject to terms and conditions of the policy, such as having valid and effective driving licence, permit and fitness certificate. It is contended that, the driver of the offending vehicle did not possessed valid and effective 4 (SCCH-16) MVC 2330/2016 driving licence and there was no valid permit and fitness certificate. The respondent No.2 contended that, the accident was due to rash and negligent riding of the rider of the motor cycle in which the deceased was proceeding. The respondent No.2 denied the age, income and occupation of the deceased and contended that, the compensation claimed is excessive, baseless. The respondent No.2 further contended that, the respondent No.1 has not intimated about the accident and jurisdictional police have not furnished the vehicle particulars and thereby there is a violation of Section 134(C) and 158(6) of M.V. Act. Hence, on all these grounds, the respondent No.2 prayed to dismiss the petition with costs.
5. On the basis of the above said pleadings and propositions of law, the following issues have been framed.
1. Whether the petitioner proves that the deceased Akthar Sayeed met with a motor vehicle accident on 27-02-2015 at about 10.15 p.m., on Bangalore-Hosur NH- 7, Darga Signal and died due to the rash and negligent driving of the driver of the TATA LPS bearing registration No.KA-53-A- 9851?
2. Whether the petitioner proves that they are entitled for compensation? If so, to what amount and from whom?
5 (SCCH-16) MVC 2330/2016
3. What order or award?
6. The petitioner examined herself as PW1 and got marked documents at Ex.P1 to Ex.P14. The eye witness was examined as PW2 and got marked Ex.P1(a). The employee of Axis Bank was examined as PW3 and got marked documents at Ex.P15 and Ex.P16. The Associate General Manager of Schneider Electric Company was examined as PW4 and got marked documents at Ex.P17 to Ex.P23. The respondents have not lead any evidence.
7. I have heard the arguments and perused the materials on record.
8. By considering the evidence on record and because of my below discussed reasons, I answer the above issues in the following:
Issue No.1: In the Affirmative Issue No.2: Partly in the Affirmative Issue No.3: As per final order for the following:
REASONS ISSUE NO.1:
9. From perusal of the evidence and materials on record, it is quite clear that, there is no dispute as to the 6 (SCCH-16) MVC 2330/2016 accident and death of Sri Akthar Sayeed in the accident. It is also not in dispute as to the involvement of the two wheeler bearing No.KA-02-EJ-5277 and tanker bearing No.KA-53-A- 9851 in the accident.
10. The petitioner has reiterated the petition averments in her affidavit filed by way of examination-in-chief as PW1. She has deposed regarding the manner of accident, death of her son, expenses incurred for funeral, loss of income and also as to the avocation and income of the deceased.
11. Apart from the above said oral evidence, PW1 has produced FIR and complaint at Ex.P1, their translated version at Ex.P2, charge sheet at Ex.P3, translated version at Ex.P4, spot mahazar and translated version at Ex.P5, postmortem report at Ex.P6, sketch at Ex.P7, autopsy report at Ex.P8, SSLC marks card at Ex.P9, death certificate at Ex.P10, ration card at Ex.P11, Aadhaar card at Ex.P12, salary certificates at Ex.P13 and Ex.P14. Through PW3, bank statement marked at Ex.P15 and Ex.P16. Through PW4, authorization letter, letter, salary revision letter, appointment letter, letter of transfer, application of the employee with details, salary certificate of the deceased for the month of 7 (SCCH-16) MVC 2330/2016 January and February 2015 were marked at Ex.P17 to Ex.P23.
12. From tenure of cross examination of PW1, it is quite clear that, she is not an eye witness to the accident. The PW1 stated that, the deceased was bachelor and his younger brother was studying in M. Pharma. It is suggested to PW1 that, the accident took place when rider of the motor cycle immediately stopped his vehicle, without giving indications, the said suggestion was denied.
13. The PW2 who is a complainant has identified the signature on the complaint Ex.P1 and deposed that, when deceased along with his friend were waiting for signal on motor cycle bearing No.KA-02-EJ-5277, at that time, the driver of the respondent No.1 hit to the motor cycle from back side in which both the rider and pillion rider of the motor cycle died. From perusal of the cross examination of PW2, it is quite clear that, the PW2 is an eye witness to the accident and his evidence was not shaken in the entire cross examination. He stated that, all two wheelers were on the left side of the road and there was no junction, there were electric signals and also police at the spot of accident. It was 8 (SCCH-16) MVC 2330/2016 suggested to PW2 that, the accident took place when the rider of the motor cycle applied immediate brakes without any indications, the said suggestion was denied.
14. From perusal of the complaint and FIR, it is quite clear that, due to rash and negligent driving of the canter lorry bearing No.KA-53-A-9851, the accident took place. Further, the complaint reveals that, when deceased along with his friend were waiting for signal at Dargha signal, Hosur road, at that time, the driver of the above said canter came from back side and hit to the motor cycle of the deceased, in which the deceased died. The jurisdictional police after thorough investigation have filed a charge sheet as per Ex.P3 and Ex.P4 against the driver of the above said canter lorry for the offences punishable under Section 279, 338 and 304(A) of IPC. The spot mahazar Ex.P5 reveals that, the accident took place on Hosur National Highway near dargha signal. Ex.P6 postmortem certificate reveals that, due to the accidental injuries, the deceased died. The spot sketch Ex.P7 reveals that, at the time of accident, the deceased was waiting for the signal in order to proceed further and accident took place. Ex.P8 certificate issued by Government Hospital, Hosur 9 (SCCH-16) MVC 2330/2016 reveals that, the death of the deceased took place on 27-02- 2015.
15. The respondents have not examined the driver of the offending vehicle, who is the better person to speak regarding the circumstances under which the accident took place. If at all as suggested by the learned counsel for the respondent No.2, if accident have taken place when motor cyclist applied immediate brake, the same should have been reflected in the spot mahazar. But, there is no reference as to the said fact in spot mahazar Ex.P5. The respondents have not placed any materials to show that, the accident was due to negligence on the part of the motor cyclist. The above said police records reveals that, the accident was due to rash and negligent driving of the driver of the above said canter lorry, because of which, the deceased died at the spot and accordingly, I answer issue No.1 in the affirmative.
ISSUE NO.2:
16. This issue is in respect of quantum of compensation to be awarded to the petitioner and the liability to pay the same.
10 (SCCH-16) MVC 2330/2016
17. The petitioner has produced SSLC marks card of the deceased marked at Ex.P9 which reveals that, the deceased was born on 04-04-1984. The death certificate Ex.P10 reveals that, on 27-02-2015, the deceased died. The funeral certificate reveals that, the deceased was bachelor and he was aged about 32 years. The salary certificate Ex.P13 for the month of February 2015 reveals that, he was drawing a salary of Rs.26,567/- per month. The ration card Ex.P11 reveals that, the petitioner was the mother of the deceased.
18. Through PW4, the appointment letter, transfer letter and employee details were marked at Ex.P20 to Ex.P22. The pay slip for the month of February 2015 and January 2015 marked at Ex.P23 reveals that, the deceased was drawing gross salary of Rs.26,567/- and he was employee in Schneider Electric India Pvt. Ltd., as Production Engineer.
19. The learned counsel for the petitioner argued that, the pay slips were produced to establish the salary of the deceased and SSLC marks card was produced to show the age of the deceased. He also argued that, the petitioner has lost son in the accident and accordingly, he prayed to allow the petition.
11 (SCCH-16) MVC 2330/2016
20. The leaned counsel for the respondent No.2 argued that, since the petitioner is only dependent, her age is to be considered for applying proper multiplier. He also argued that, whatever the death benefits provided to the petitioner have to be deducted out of total compensation.
21. It is not in dispute that, as per the pay slips for the month of January 2015 and February 2015 marked at Ex.P23, the deceased was drawing a gross salary of Rs.26,567/- per month. The appointment letter reveals that, the deceased was a permanent employee at Schneider Electric India Pvt. Ltd. The pay slips reveals that, the income tax of Rs.340/- and profession tax of Rs.200/- was deducted. Hence, after deducting a sum of Rs.340/- and Rs.200/-, the net salary of the deceased comes to Rs.26,027/-. The learned counsel for the respondent No.2 submitted that, the age of the petitioner to be taken into account. But as per the unreported ruling reported in Civil Appeal No.4497/2015 between Munna Lal Jain and another vs. Vipin Kumar Sharma and others, the Hon'ble Apex Court held that, the age of the deceased has to be taken into account for applying the proper multiplier.
12 (SCCH-16) MVC 2330/2016
22. Further, the Hon'ble Apex Court in the ruling reported in 2013 ACJ 1403 (Rajesh and others vs Rajbir Singh and others) held that the future prospects should be adopted even when the person is self employed or were engaged on fixed wages. In para-11 and 12 of said judgment, the Hon'ble Apex court discussed the principles laid down in the Sarla Verma's case reported in 2009 ACJ 1298(SC) and another ruling reported in 2012 ACJ 1428(SC) in Santhosh Devi's case held that even when the person is self-employed or at fixed wages, the future prospectus is to be considered. The Apex court has held that 50% of the actual income of the deceased have to be taken for the future prospectus below 40 years and 30% for the age group of 40-50 years and 15% for the age group of 50-60 years is to be added as future prospectus.
23. In this case, as per SSLC marks card of the deceased marked at Ex.P9, the deceased was aged about 31 years as on the date of accident. The deceased was a bachelor at the time of accident. Hence, as per the above said rulings, 50% of actual income is to be taken into account as future prospectus. As per the petition, the mother of the deceased is 13 (SCCH-16) MVC 2330/2016 shown as dependent. Hence, 50% has to be deducted towards his personal expenses. Hence, the following calculations:
(i) Notional income arrived at ...Rs.26,027/-p.m.
(ii)50% of (i) above said income to be added as future prospectus ...Rs.13,013.5+26,027/-= ...Rs.39,040.5/-p.m. Less 50% deducted as personal expenses of the deceased. ...Rs.39,040.5-19,520.25/-= ...Rs.19,520.25 x 12 x 16= Compensation after multiplier of 16 is applied ... Rs.37,47,888/-
The petitioners are entitled for the compensation of Rs.37,47,888/-under the head loss of dependency.
24. The Apex Court, in the case reported in 2013 ACJ 5800 (Sanobanu Nazirbhai Mirza Vs. Ahmedbad Municipal Transport Service) and also in the recent judgment reported in AIR 2014 SUPREME COURT 706 (Puttamma Vs. Narayana Reddy) awarded Rs.1,00,000/- as compensation to the family members (children and family members other than wife) for loss of love and affection, deprivation of protection, social security etc., and Rs.50,000/- as compensation to the widow of the deceased for loss of love and affection, pains and sufferings, loss of consortium, deprivation of protection, social 14 (SCCH-16) MVC 2330/2016 security etc., and Rs.10,000/- towards cost incurred on account of funeral and ritual expenses. In this case, since the deceased has left behind his old age mother, I deem it proper to award Rs.1,00,000/- as compensation to the family members (children and family members other than wife) for loss of love and affection, deprivation of protection, social security etc. Loss of expectancy of life Rs.1,00,000/-. Loss of estate Rs.50,000/- and Rs.25,000/- towards cost incurred on account of funeral and ritual expenses.
25. The details of compensation I propose to award are as under:
Sl.No. Head of Compensation Amount/Rs.
1. Loss of dependency 37,47,888-00
2. Compensation to the family 1,00,000-00 members (children and family members other than wife) for loss of love and affection, deprivation of protection, social security etc.
3. Loss expectancy of life 1,00,000-00
4. Loss of estate 50,000-00
5. Cost incurred on account of 25,000-00 funeral and ritual expenses Total 40,22,888-00 15 (SCCH-16) MVC 2330/2016 In all the petitioner is entitled for compensation of Rs.40,22,888/-.
26. The PW4 stated that, a sum of Rs.15,00,000/- was paid out of gratuity and group personal accident benefit policy. The leaned counsel for the respondent No.2 argued that, whatever the death benefits provided to the petitioner have to be deducted out of total compensation. But, as per the ruling reported in 2013 ACJ 1143 (Neelam Singh and others vs (Dolphin International and others), (2013) 7 SCC 476 (Vimal Kanwar and others vs Kishore Dan and others) and ILR 2014 KAR 5169 (A. Arun and Another vs Smt. H.B.Pushpa and another). In these citations, the Hon'ble Apex Court as well as the Hon'ble High Court of Karnataka held that ex-gratia payment and personal accident benefits have nothing to do with the compensation to be awarded under the provisions of Motor Vehicles Act. The Hon'ble Apex Court come to the said conclusion by referring to the said decision of Halen C Rebello's case. Hence, even though, in this case, petitioner has received a sum of Rs.15,00,000/- gratuity and group personal accident benefit policy. But, as per the above said citations, the same cannot be considered 16 (SCCH-16) MVC 2330/2016 as deduction. Hence, a sum of Rs.15,00,000/- received by the petitioner is not deductable amount from the total compensation.
Interest:
27. Relying upon a judgment of the Apex Court reported in 2013 AIR SCW 5375 (Minu Rout and others Vs. Satya Pradyumna Mohapatra and others), with regard to interest at the rate of 9% p.a. on the compensation amount, in para 13 of the judgment, the Apex Court held that Insurance Company is also liable to pay interest at the rate of 9% p.a. from the date of application till the date of payment and also by following the principles laid down in (2011) 4 SCC 481 :
(AIR 2012 SC 100) (Municipal Council of Delhi Vs. Association of Victims of Uphaar Tragedy). In view of the above judgments with regard to the rate of interest, and also it is settled law that while awarding interest on the compensation amount, the Court has to take into account the rate of interest of the nationalized bank and the rate of interest at 9% cannot said to be on the higher side. Accordingly, the petitioners are entitled to interest at the rate of 9% p.a.
17 (SCCH-16) MVC 2330/2016 Liability:
28. The respondent No.1 has admitted that, as on the date of accident, the policy in respect of the vehicle bearing No.KA-53-A-9851 was in force. Therefore, the respondent No.1 and 2 are jointly and severally liable to pay compensation to the petitioner with interest at 9% p.a. However, primary liability is fixed on respondent No.2 who is the insurer of the canter lorry bearing No.KA-53-A-9851.
Accordingly, issue No.2 is answered partly in the affirmative.
ISSUE No.3:-
29. In view of my above findings, the petition is deserves to be partly allowed. Hence, I proceed to pass the following order:
ORDER The petition filed by the petitioner is allowed in part. The petitioner is entitled for compensation of Rs.40,22,888/- (Rupees forty lakhs twenty two thousand eight hundred and eighty eight only) with interest at the rate of 9% p.a. from the date of petition till realisation.
18 (SCCH-16) MVC 2330/2016 The respondents Nos.1 and 2 are jointly and severally liable to pay the award amount. However, the primary liability to pay the compensation amount is fixed on the respondent No.2 -Insurance Company and it is directed to pay the compensation amount within two months from the date of this order.
Out of the said compensation amount awarded, 40% of the compensation amount with proportionate interest shall be deposited in the name of the petitioner as FD in any nationalized bank for a period of three years (without any encumbrance or premature withdrawal) with liberty to draw the accrued interest periodically and the remaining 60% amount with proportionate interest shall be released to the petitioner through A/c payee cheque on proper identification and verification.
Advocate's fee is fixed at Rs.1,000/-.
Draw an award accordingly.
(Dictated to the stenographer, transcribed by him, corrected and then pronounced in the open court this the 15th day of December 2016) (SATISH.J.BALI) MEMBER:MACT, BANGALORE.
19 (SCCH-16) MVC 2330/2016 ANNEXURE List of the witnesses examined on behalf of Petitioners:
PW1 Smt. Naseemunissa PW2 Sri Shahid Siddique PW3 Sri S. Prakash PW4 Sri Panduranga Reddy
List of the documents exhibited on behalf of Petitioners:
Ex.P1 True copy of FIR and complaint
Ex.P1(a) Signature on the complaint
Ex.P2 Translated copy of FIR and complaint
Ex.P3 True copy of Charge sheet
Ex.P4 Translated copy of Charge sheet
Ex.P5 True copy of Spot mahazar and translated copy
of spot mahazar
Ex.P6 Postmortem certificate
Ex.P7 True copy of Sketch (2 in nos.)
Ex.P8 Autopsy certificate
Ex.P9 SSLC marks card
Ex.P10 Death certificate
Ex.P11 Ration card
Ex.P12 Aadhaar card
Ex.P13 Salary certificate
Ex.P14 Salary certificate
Ex.P15 & Bank statement of the deceased from 01-04-
Ex.P16 2013 to 31-03-2014 and 01-04-2014 to 28-02-
2015.
Ex.P17 Authorization letter
Ex.P18 Letter dated 28-02-2015
20 (SCCH-16) MVC 2330/2016
Ex.P19 Salary revision letter dated 01-04-2014
Ex.P20 Appointment letter dated 28-10-2010
Ex.P21 Letter of transfer dated 31-07-2009
Ex.P22 Application of employee with details
Ex.P23 Salary certificate of deceased for the month of
January and February
List of the witnesses examined on behalf of Respondents:
None List of the documents marked on behalf of Respondents:
Nil (SATISH.J.BALI), MEMBER, MACT BANGALORE.