Bangalore District Court
) Smt. Chowdamma vs Bajaj Allianz General Insurance on 4 July, 2016
1 SCCH-1
MVC No.11/15
BEFORE THE MEMBER PRL.MOTOR ACCIDENT CLAIMS
TRIBUNAL AT BANGALORE
(S.C.C.H. - 1)
DATED THIS THE 04th DAY OF JULY 2016
PRESENT : SRI H.P.SANDESH, B.A.L, ., LL.B,
MEMBER, PRL. M.A.C.T.
M.V.C. No.11/2015
Petitioners: 1) Smt. Chowdamma,
W/o. Muniraju,
Aged about 47 years.
2) Smt. Kempamma,
W/o. Venkatappa,
Aged about 77 years
.
3) Sri. Manjunath,
S/o. Muniraju,
Aged about 32 years,
All are residing at
Near Saibaba Temple,
Water Tank,
Budigere Village,
Devanahalli Taluk,
Bangalore Rural District.
(By M.G.Raghavendra, Advocate)
Vs.
Respondents: 1. Bajaj Allianz General Insurance
Co., Ltd.,
Golden heights Complex,
59th C-Cross, Rajajinagar,
Bangalore - 560 010
2 SCCH-1
MVC No.11/15
(Policy No.OG-14-1801-1812-
00001952
Valid from 18.12.2013 to 17.12.2014)
(Tata Mini Bus (School bus)
Bearing Reg.No. AP-29-V-8514)
(By S.Krishna Kishore, Advocate)
2. Narayana Educational Society,
R. Koteshwara Rao,
No.2, Kaggadasapura Main Road,
C.V.Raman Nagar, Near Shiva
Temple,
Bangalore - 560 093
(Exparte)
**********
JUDGMENT
This petition is filed u/s.166 of M.V.Act 1989 seeking compensation of Rs.25,00,000/- for the death of Anand, son of Petitioner No.1, grand son of petitioner No.2 and brother of petitioner No.3 in the Road traffic accident who took place on 22.09.2014.
2. The brief facts of the case are:
It is the case of the petitioners that, on 22.09.2014 at about 2.45 p.m. the deceased was a pedestrian on the foot path (Mud Road) at Budigere road along with his friends one
3 SCCH-1 MVC No.11/15 Mr.Vijaykumar and Mr.Babajan and while they were going towards Nimbekaipura carefully and when they reached in front of Prestige Apartment, at that time, the driver of the TATA School Mini Bus bearing Reg.No. AP-29-V-8514 drove the same in a rash and negligent manner in a high speed in the same direction had dashed to the deceased. Due to the accidental injuries he fell down and sustained sever head injuries and other injuries all over the body.
3. Further contended that, immediately after the accident the deceased was shifted to MVJ hospital at Hoskote and from there shifted to AXIS hospital at Indiranagar and finely shifted to M.S.Ramaiah hospital and then shifted to Vinayaka hospital and he was inpatient in the said hospitals from 22.09.2014 to 08.12.2014 and underwent several surgeries and inspite of best treatment given by the doctors, he succumbed to the injuries on 08.12.2014.
4. It is further contention of the petitioners that, they have spent substantial medical expenditure of Rs.20,00,000/- towards medicines and Rs.5,00,000/- for conveyance and other expenses.
4 SCCH-1 MVC No.11/15
5. Petitioners have further contended that, the deceased was hale and healthy and was working at Grind Norton India Private Limited and he was drawing salary of Rs.10,000/-. On account of the death of deceased the family members lost the only bread winner of the family and they have put to great financial difficulty and untold misery. The accident is due to the sole negligence of the driver of the offending vehicle. The first respondent being the insurer and the 2nd respondent being the owner of the offending vehicle, both are jointly and severally liable to pay the compensation of Rs.25,00,000/- to them.
6. In pursuance of this claim petition, this Court issued notice against both the respondents. 2nd respondent remain absent, hence he was placed exparte. The Respondent No.1 appeared through his counsel and filed objection statement by denying all the averments of the petition. Further contended that, it has issued Commercial vehicle - Class C(ii) policy No.OG-14-1801-1812-00001952 for the period between 18.12.2013 to 17.12.2014 in respect of the Bus bearing Reg.No.AP-29-V-8514 in favour of Narayana 5 SCCH-1 MVC No.11/15 Educational Society and the liability if any is subject to the terms and conditions of the policy and limitations and the confirmation of the compliance of Sec.64 of the Insurance Act, 1938.
7. 1st respondent has further contended that, one Nataraj who belongs to the deceased village was driving the insured bus at the time of accident, since he was not holding valid driving licence and having LLR License as an after thought Mr.Adarsha S.K. driving licence was submitted before the police and his name is incorporated in the Charges sheet as accused. Since the accident occurred due to negligence of an unidentified vehicle and the driver of insured vehicle was not holding valid and effective driving licence, the first respondent is not required to indemnify the 2nd respondent, and the claim petition deserved to be dismissed.
8. Further the 1st respondent has contended that, the driver of the bus was coming on the left side of the road and the deceased was crossing the Budigere Main Road without observing the on-going vehicle on the main road, where there is no provision to cross the road to pedestrian. Since the 6 SCCH-1 MVC No.11/15 deceased was negligent for the cause of accident, the claim petition is not maintainable.
9. Further contended that, petitioners have to prove the age, occupation, relationship with the deceased, occurrence of the accident, involvement of the vehicle in the alleged accident, expenses made towards medical, funeral and other incidental expenses. It is further contended that, owner of the offending vehicle has to prove that the said offending vehicle was having valid vehicular documents and the alleged driver was having valid and effective driving licence. The respondent also seeks protection under Sec.149(2) of M.V.Act.
10. Further the respondent No.1 reserves the right to file additional written statement under the changed circumstance U/s. 170 of the M.V.Act. Hence, prayed to dismiss the petition.
11. Based on the pleadings, this Court has framed the following:-
ISSUES
1. Whether the Petitioners prove that the deceased succumbed to injuries in a Motor Vehicle Accident that occurred on 22-9-2014 at about 2 to 2.45 pm. infront of Prestige Apartments, Nimbekai Pura Cross, Budigere Road, within the jurisdiction of 7 SCCH-1 MVC No.11/15 Avalahalli Police Station on account of rash and negligent driving of the Tata Mini Bus (School Van) bearing registration No.AP-29-V-8514 by its driver?
2. Whether the Respondent NO.1 proves that the accident occurred on account of negligent act of the Deceased?
3. Whether the Petitioners are entitled for compensation? If so, how much and from whom?
4. What order?
12. In order to prove their claim, the first petitioner has examined as PW-1 and got marked the documents Ex.P.1 to
12. On the other hand respondents have examined R.W.1 to R.W.4 and they got marked the documents Ex.R1 to Ex.R8.
13. Based on the pleadings and the evidence available on record, I record my findings on the above issues as under:-
1. Issue No.1 ... In the affirmative
2. Issue No.2 ... In the Negative
3. Issue No.3 ... Partly in the affirmative
4. Issue No.4 ... As per final order For the following:
REASONS
14. Issue No.1 & 2: These two issues are interconnected to each other, hence taken up together for discussion to avoid repetitions.
8 SCCH-1 MVC No.11/15
15. It is the case of the petitioner that, on 22.09.2014 at about 2.45 p.m. the deceased was a pedestrian on the foot path (Mud Road) at Budigere road along with his friends one Mr.Vijaykumar and Mr.Babajan and while they were going towards Nimbekaipura carefully and when they reached in front of Prestige Apartment, at that time, the driver of the TATA School Mini Bus bearing Reg.No. AP-29-V-8514 drove the same in a rash and negligent manner in a high speed which was going in a same way and in the same direction had dashed to the deceased who was going on the foot path. Due to the accidental injuries he fell down and sustained sever head injuries and other injuries to all over the body. On the other hand the respondents have taken a defence that, the deceased was negligent and without observing the on-going vehicles on the main road and where there is no provision to cross the road to pedestrian, he was crossing the road and the accident occurred due to the negligence on the part of the deceased himself.
16. The petitioners in order to prove their contention, they have examined the first petitioner as PW.1 and she 9 SCCH-1 MVC No.11/15 reiterated the averments of the petition and got marked the documents Ex.P.1 to 4 and Ex.P7 i.e. FIR, Sketch, Mahazar, IMV Report and Charge Sheet.
17. The PW.1 was subjected to cross examination and in the cross examination it is elicited that, the people who witnessed the accident have informed about the accident. She does not know who has lodged the complaint. She says, she went and saw him in the hospital. It is suggested that, while crossing the road an unknown vehicle dashed against him and not this vehicle and the same was denied. She says the Insurance Company people have not come and enquired about how an accident was taken place and her son what he was doing and the same was denied. The petitioners have also not examined any other witness except relying upon the documentary evidence.
18. The respondent No.1 has examined its Assistant Manager (Legal) as RW.1 and in her evidence in the form of affidavit she has reiterated that, one Nataraj who belongs to the deceased village was driving the insured bus at the time of accident, since he was holding only Learner Licence, as an 10 SCCH-1 MVC No.11/15 after thought Mr.Adarsha S.K. is planted as Driver by submitting his driving licence before the police and his name is incorporated in the charge sheet as accused. Hence their company is not required to indemnify the 2nd respondent. It is further contended that, the 2nd respondent has not informed any accident involving their vehicle in the accident on 22.09.2014 and the claimant in collusion with the 2nd respondent have falsely implicated Mr.Adarsha as driver of the offending vehicle, even though he was not driving the said vehicle, with a view to foist liability against their company by creating non-existance liability. RW.1 also produced Ex.R1 to Ex.R.5 i.e. Policy copy, letter sent to insured, postal receipt, lab reports and C.D.
19. RW.1 was subjected to cross examination and in the cross examination it is elicited that, she has not produced any other documents except video C.D that the driver of the vehicle was one Nataraj. It is suggested that, in order to absolve their liability, they have created a person of Nataraj and giving false evidence before the Court and she has denied the same. She admits that, in the Truth lab report everywhere 11 SCCH-1 MVC No.11/15 it is mentioned as opinion. It is elicited that, they have not taken the permission from the Court to get the opinion but to validate the C.D, they have sent the same to Truth lab to obtain the certificate to mark the same as exhibit. The truth lab report itself is a certificate u/s. 65 B of Evidence Act.
20. The respondents have also examined RW.2 who is the Proprietor of Maruthi Enterprises, Detective Agency and in his affidavit he says that, the first respondent entrusted the investigation work and he has been to the address mentioned in the claim petition to know the manner of accident and he found the school buses and vans are parked in the field near to the school and enquired about the accident with drivers of the school buses and vans. For the first instance, they refused to comment on the accident and when he enquired about the accident with the persons of that area, they said, Mr.Nataraj was driving the said bus at the time of accident and not the charge sheeted driver Mr.Adarsha S.K. as Mr.Nataraj was having only LLR. Since the driver is swapped, he recorded the conversion between him and the Mr. Adarsha through camera and transformed the same to compact disc and submitted to 12 SCCH-1 MVC No.11/15 the first respondent. He has got marked the investigation report submitted to the company as Ex.R7.
21. In the cross examination of RW.2 he admits that, he is running the agency since 5 years and he has not produced any document to show that he is running the investigation agency. He has enquired driver, petitioner and RC owner and he has also enquired the charge sheeted accused and he told him that Nataraj was driving the vehicle and he was not having the DL and hence school authorities have took his DL. He says, he has not recorded the statement in writing but the same was recorded in the DVD and he has recorded the statement in pen camera and he has not produced the said pen camera before the court. He took the pen camera to record the conversation between him and Adarsha. He has not produced any Identity card of Adarsha and also any documents to show that the said voice belongs to Adarsha. It is suggested that, he has not enquired any person of Nataraj, Chowdamma and insured and only in order to create the evidence in favour of the insurance company, he has 13 SCCH-1 MVC No.11/15 created the said alleged statement even though he was not authorized to do the same and the same was denied.
22. The respondents have also relied upon the evidence of RW.3. The RW.3 is none other than the Asst. Director at Cyber Audio and Video Forencis Truth Lab, Bangalore. In his evidence he says that, on 10/9/2015 their lab has received one DVD from the Bajaj Insurance company requesting for them to ascertain the authenticity of the contents of the said DVD. The DVD contains 4 audios, video recordings and 3 images. He has subjected the DVD to forensic examination to ascertain the authenticity of the contents. The video authentication was carried out by means of visual examination and frame by frame analysis. The 3 images containing the DVD for subjected to image authentication examination, pixel analysis and error level analysis and the images containing in the DVD are authentic and represent true events. Witness identified Ex.P4 and 5 and he was not subjected to cross examination by the petitioner counsel.
23. The driver is also examined as RW.4. In his evidence he says that, the representative of the first insurance 14 SCCH-1 MVC No.11/15 company not enquired him in respect of the accident and hence he was subjected to cross examination. In the cross examination the DVD which is marked as Ex.P5 was opened and played and on playing the audio and video there was a photo and the same was confronted with the video photo and witness seeing the same denies that the said photo is not belongs to him. The court noticed in the video the very same photo and the witness who is in the witness box is one and the same. Again witness was confronted with a photo and witness admits the said photo belongs to him and hence the same is marked as Ex.R8.
24. This Court has recorded the evidence and perused the DVD and witness admits his voice and also the pictures. However, he claims that person who came to record the statement told that if he does not say the name of other person, he has to undergo 14 years imprisonment and hence he has mentioned the name of Nataraj. The Court also heard the conversation and in the conversation the witness said that one Nataraj was driving the school bus and he was having only learner licence and not having the valid Driving Licence and 15 SCCH-1 MVC No.11/15 hence he has given his Driving Licence. He admits that, the said Nataraj was having the learner licence. He says, the person who died in the accident is the resident of the village which is far away from 08 kms from the school.
25. He further admits that, the police have registered FIR against him and have also filed charge sheet against him and he has not challenged the same. The public have assaulted him and hence he lost the conscious and after regaining the conscious he only took the injured to hospital. The injured was taken to MVJ hospital and in the MVJ hospital they told them to take him to some other hospital for higher treatment and he did not accompany the injured thereafter. He has not given any complaint against the public in respect of assault. The person who recorded the statement before recording the statement, he told him that he came to enquire with regard to the accident how an accident was taken place. He did not disclose that he came from the insurance company. The person who enquired him about the accident himself suggested the name of the Nataraj and he has told that he was not having the Driving Licence. The person who 16 SCCH-1 MVC No.11/15 enquired him about the accident himself told that the said Nataraj was having only the learner licence and himself gave the licence and hence he told him that he only caused the accident and he gave his Driving Licence.
26. Now let me appreciate both oral and documentary evidence available before the Court. It is the contention of the petitioner that, the accident was occurred due to the negligent act of the driver of the Tata mini bus. On the other hand respondent No.1 took the defence that, the accident occurred on account of negligent act of the deceased himself. It is also contended that, the driver was swapped. In order to substantiate their contention they have relied upon the evidence of RW.1 to RW.4. In the cross examination of PW.1 nothing is suggested to the PW.1 that, the driver was swapped, but only it is suggested that, while crossing the road an unknown vehicle dashed against him and not this vehicle and the said suggestion was denied. In the cross examination of RW.1 nothing is suggested regarding the negligence, only suggestion was made that, in order to absolve their liability they have created the person Nataraj and giving false evidence 17 SCCH-1 MVC No.11/15 before the Court, even though the police have investigated the matter and filed the Charge Sheet against the driver Adarsha, the said suggestion was denied.
27. The Investigator who has been examined before the Court speaks with regard to the swapping of driver and in order to decide the issue with regard to the negligence is concerned the same is not material and driver who has been examined as RW.4 he claimed in his chief examination that, he was driving the vehicle and in the cross examination he admits the conversation and his voice, though he denies in the earlier stage. Regarding swapping of the vehicle is concerned I am going to give finding while considering the liability. The involvement of the vehicle though has been disputed by the respondent while cross examining the PW.1 it is not the contention that, vehicle was not involved in the accident. In the written statement it is contended that, the accident was occurred due to the negligence of the deceased himself. The insurance company cannot blow hot and cold. In one breath contended that, the vehicle was not involved in the accident and in another breath, the accident was occurred due to the 18 SCCH-1 MVC No.11/15 negligence on the part of the deceased. It is also important to note that, the driver RW.4 who has been examined before the Court claims that, he was driving the vehicle and he also has not spoken anything about the accident was not on account of deceased. No material is placed before the Court to prove that, the accident was occurred due to the negligence on the part of the deceased.
28. On perusal of the documentary evidence Ex.P1 FIR the accident was occurred at 14.45 p.m. on 22.09.2014 and complaint was registered at 21.35 hrs. by one complainant Narayanswamy. He makes an allegation against the driver of the bus and not specified the name of the driver. The police have also investigated the matter and filed Ex.P2 Charge Sheet and it discloses that, the accident was taken place in front of Prestige apartment in a foot path and the Ex.P2 is not been disputed. Only main contention is that, regular driver Nataraj was not having the driving licence and he was having only LLR and hence other driver was swapped. IMV report which is marked as Ex.P4 does not discloses any damages to the bus, but in the FIR it is mentioned as the driver of AP-29-V-8514 19 SCCH-1 MVC No.11/15 school bus and name has not been mentioned. In view of the above discussion, the involvement of the vehicle in the accident is clear and the accident was occurred due to the negligence on the part of the driver of the Van. Since there is no material to come to the conclusion that the accident is on account of negligence on the part of the deceased, hence I answer issue No.1 as Affirmative and issue No.2 as Negative.
29. Issue No.3:- The petitioners have claimed compensation on the ground that, they are the mother, grand mother and brother of the deceased. The 1st petitioner who has been examined as PW.1 in her evidence has reiterated the averments of the petition. Also it is their case that, the deceased was aged about 21 years at the time of the accident and was working in Grind Norton India Pvt., Ltd., and earning Rs.10,000/- p.m. and he was contributing his entire income to the family maintenance.
30. In support of their claim they have also produced Inquest Report as Ex.P5, P.M.Report as Ex.P6, Ex.P8 & 9 Discharge Summaries, Ex.P10 Death Memo, copy of Ration 20 SCCH-1 MVC No.11/15 card as Ex.P11, Medical bills for Rs.11,86,190/- as Ex.P12, 12 Prescriptions as Ex.P13.
31. In the cross examination of PW.1 she admits that, deceased is her second son. It is suggested that, she is staying with Manjunath and the same was denied. Witness volunteers that herself and her mother are staying separately after the marriage of her elder son. She admits that, her son was working in Grind Well Norton Pvt. Ltd and he was getting salary of Rs.10,000/- per month and she has not produced any documents to show that he was earning Rs.10,000/- per month. Further she says that, she had spent the amount of Rs.11,86,190/- by selling the 5 guntas of land which she was owning and she does not know the survey number and she sold the said property to her brother and she has not produced any documents to show that she has sold the property to her brother.
32. Now let me appreciate both oral and documentary evidence available before the court. It has to be noted that, with regard to the relationship is concerned petitioners have 21 SCCH-1 MVC No.11/15 relied upon the Ex.P11 Ration Card which discloses the name of the deceased and his family members.
33. With regard to the age is concerned the petitioners have relied upon the Ration Card which is marked as Ex.R11 and it discloses the age of the deceased as 15 years and it does not disclose the year of issue of Ration card. Hence this Court has relied upon the immediate documents came into existence after the accident. On perusal of Ex.P6 P.M. Report, Ex.P8 and 9 Discharge Summaries, age of the deceased is mentioned as 21 years. Hence this Court has accepted the age of the deceased as 21 years.
34. It has to be noted that, the petitioners have not examined the employer or produced any documentary proof before the Court in order to substantiate that, he was working in Grind Well Norton India Pvt. Ltd., and earning Rs.10,000/- p.m., hence this Court has taken the income of the deceased as Rs.7,000/- p.m.
35. In the recent judgment reported in 2015 AIR SCW 3105 (Munna Lal Jain and another Vs.Vipin Kumar Sharma and others) 22 SCCH-1 MVC No.11/15 "Compensation - Computation of -
Deduction towards personal and living expenses - No exceptional circumstances or compelling reasons for deviation on basis of evidence - Deceased being of the age of 30 years - Deduction of 50% towards personal and living expenses is proper."
"Compensation of - Multiplier - Depend on age of deceased alone - Age of deceased was between 26 to 30 years at the time of accident - Proper multiplier is 17"
In view of the judgment referred supra, the deceased was aged 21 years at the time of the accident and the relevant multiplier applicable to the case on hand is 18.
36. In view of the principles laid down in the judgment reported in 2013 ACJ 1403 (Rajesh Vs. Rajbir Singh), the Apex Court held that even if a person is self employed, loss of future prospects has to be taken into consideration. In the case on hand this Court has taken the income of the deceased as Rs.7,000/- p.m. and out of the same 50% of which works 23 SCCH-1 MVC No.11/15 out to Rs.3,500/- and thus the total works out to Rs.10,500/-. p.m. (7,000 + 3,500)
37. In the recent judgment of Apex court in 2009 ACJ 1298 (Sarala Varma vs. Delhi Transport Corporation) it is held that, if the deceased is a bachelor 50% of the income has to be deducted towards personal expenses. Hence, 50% of the income of the deceased is to be deducted for personal expenses i.e., Rs.5,250/-.(10,500-5250). Thus, the annual loss of dependency works out to Rs.63,000/- (5250x12) and if we multiply the said amount by the 18 multiplier applicable to the case on hand, it works out to Rs.11,34,000/- (63,000x18) to which the petitioners are entitled to under the head 'Loss of Dependency'.
38. Medical Bills:
Petitioners have produced medical bills to the tune of Rs.11,86,190/- and the same is marked as Ex.12. On perusal of medical bills, the petitioner was immediately admitted in Axon Speciality hospital at 15.30 hrs. and within 3 hrs. he was discharged and the bill amounts to Rs.18,550/-. After the discharge he was shifted to Ramaiah hospital on the same day 24 SCCH-1 MVC No.11/15 and he took treatment in the said hospital till 27.11.2014 and the bill amount is Rs.10,37,889/- and Rs.1,13,623/-. On perusal of Sri. Vinayaka Multi-speciality hospital and Trauma Centre bill dated 08.12.2014 the bill amount is Rs.39,400/-.
Though the said bill does not discloses the date of admission, on perusal of Inquest Report which is marked as Ex.P5 it discloses that, after discharging him from the M.S.Ramaiah hospital he was shifted to the said hospital on the same day. Hence I accept the medical bills to the tune of Rs.11,86,190/- and the same is rounded off to Rs.11,87,000/- and awarded under the head 'Medical Expenses'.
39. 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 25 SCCH-1 MVC No.11/15 sufferings, loss of consortium, deprivation of protection, social security etc., and Rs.10,000/- towards cost incurred on account of funeral and ritual expenses. In this case also, since the deceased has left behind his parents and minor sister, 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., and Rs.10,000/- towards cost incurred on account of funeral and ritual expenses.
40. The details of compensation I propose to award are as under:
Sl.No. Head of Compensation Amount/Rs.
1. Loss of dependency 11,34,000.00
2. Medical bills 11,87,000.00
3. Compensation to the 1,00,000-00 family members (children and family members other than wife) for loss of love and affection, deprivation of protection, social security etc.
4. Cost incurred on account 10,000-00 of funeral and ritual expenses Total 24,31,000.00 26 SCCH-1 MVC No.11/15 In all the Petitioners are entitled for compensation of Rs. 24,31,000/-.
41. Release of compensation:
With regard to the release of award amount out of total award compensation of Rs.24,31,000/- is concerned, since the petitioner No.3 is the brother of deceased and aged 32 years and also has attained majority, only an amount of Rs.1,00,000/- which is awarded under the head compensation to the family members has to be released to him.
Further more, out of remaining amount of Rs.23,31,000/- (24,31,000-1,00,000) after deducting Rs.1,00,000/- apportioned to petitioner No.3, since the PW.1 has incurred huge medical expenses of Rs.11,87,000/-, the same has to be released in her favour.
Further, out of remaining amount of Rs.11,44,000/- (23,31,000-11,87,000/-) after deducting Rs.11,87,000/- the same is apportioned as 75% and 25% in favour of petitioners No.1 and 2. It has to be noted that, the petitioner No.2 is aged 77 years and senior citizen, the apportioned amount in her favour has to be released completely. 27 SCCH-1 MVC No.11/15
42. Interest:
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. 28 SCCH-1 MVC No.11/15
43. Liability:
Regarding liability is concerned, the main contention of the respondent is that, one Nataraj was driving the vehicle and he was not having driving licence and he was having only Learner licence and driver was swapped. It is important to note that, the complaint was given on the same day. I have already pointed out while considering the issue No.1 that, it is an allegation against the driver of the school bus that he drove the vehicle in a rash and negligent manner and only an action is sought against the driver, accordingly FIR was registered and the name of the driver is not been mentioned in Column No.6 of the FIR and only it is mentioned as driver -A1. On the other hand it is the contention of the insurance company that, the driver was swapped. There is a force in the contention of the respondent insurance company since the investigator who has been examined before the Court as RW.2 says that, he examined the driver Adarsha and he also given the statement that, Nataraj was driving the vehicle and the same was recorded in the Pen camera and the same is confronted as DVD and the same is played before the Court. 29 SCCH-1 MVC No.11/15
44. Notice also sent to the insured on 23rd January 2015 and postal receipt is also produced and the notice is marked as Ex.R2 and postal receipt as Ex.R3. No doubt there is no postal acknowledgment, the insurance company has relied upon the Truth Lab report which is marked as Ex.R4. The Asst. Director of truth Lab is also examined as RW.3. The DVD is marked as Ex.R5. The Investigator also got marked the Ex.R6 authorizing him to investigate the matter. Ex.R7 is the document of Investigation report. Photo of the Adarsha driver has been marked as Ex.R8.
45. It is important to note that, though the driver who has been examined as RW.4 initially denied that, he is not the person in the said photo and when the Court made an observation that the person who is giving the evidence before the Court and the photo which is marked as Ex.R8 in which the picture of the person depicts is one and the same, while cross examining the witness by the RW.1 the photo was confronted and he admits the said photo belongs to him. Ex.R5 which is confronted in the open Court is voice of the witness and also heard and witness admits his voice. This 30 SCCH-1 MVC No.11/15 Court also made an observation that, after hearing the conversation witness says, one Nataraj was driving the school van and he was having only LLR and not having driving licence and hence he has given the driving licence.
46. The contention of the petitioner counsel in his argument has relied upon the judgment reported in 2014 AIR SCW 5695 (Anvar P.V. v. P.K.Basheer and others) In this judgment Apex Court held regarding admissibility of electronic record that, "the computer out put containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer".
The counsel also brought to my notice para 15 that, "the person need only to state in the certificate that the same is to be best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc(CD), Video Compact Disc(VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is 31 SCCH-1 MVC No.11/15 produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision etc., without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
47. On the other hand counsel appearing for the respondent No.1 in his arguments has relied upon the following judgments:
a) ILR 2009 Karnataka 3562 ( Veerappa and Another vs. Siddappa and Another). The Division bench in this judgment held that, "Fraud and justice never dwell together - An attempt on the part of the 1st respondent/owner to collude with the claimants with the fond hope of saddling the insurance company to pay compensation - Owner of the vehicle has admitted the incident and had no objection for award of compensation. It is held, even though the owner of the vehicle is in unmistakable terms, has admitted the incident, that admission has no value in the eye of law. It is clear that, the said admission is made with the sole object of getting compensation to the claimants as it is the insurance 32 SCCH-1 MVC No.11/15 company which will pay, and not the owner. Though admission is the best piece of evidence, it cannot be accepted as gospel truth. The Court can insist on proof of facts, if the admission is not satisfactory.
Fraud played on the courts by the claimants with the connivance of the 1st respondent - Liability of the Insurance company to pay the compensation if the fraud is proved the company is not liable to indemnify the owner of the vehicle who has played fraud and not liable to pay any compensation to the claimants who are also party to the fraud. Once the insured plays fraud, admits liability with the sole object of foisting liability on the insurance company, though in fact he knew that it is not true liability of the insurance company to indemnify such insured ceases. Therefore, there is no obligation on the pat of the insurance company to indemnify the insured. It is only first respondent owner who is liable to pay compensation alone."
b) ILR 2009 Karnataka 2921 (Bajaj Allianz General Insurance Company Limited vs. B.C.Kumar and Another) - In this judgment Hon'ble High Court that, "Merely filing of Charge Sheet is not enough, the tribunal has to assess the evidence independently." 33 SCCH-1 MVC No.11/15
48. In keeping the contention urged by both the petitioner counsel and respondent counsel, this Court has to examine whether the driver has been swapped or not. It is important to note that, the driver who has been examined before the Court as RW.4 claimed that, he was driving the vehicle and not Nataraj, but when he has been treated as hostile and cross examined he denied his photo. When the Court has noticed that, in the video photograph and witness who is in the witness box is one and the same and when he was subjected to further cross examination he admits his photo and also his voice. However, he says the person who came to record his statement himself suggested the name of the driver and also suggested that the driver was not having driving licence. The respondent No.2 owner has not taken any steps to examine the said Nataraj before the Court. Admittedly he was having only the LLR and not the driving licence. I have already pointed out that, in the FIR it is mentioned as driver of the bus and not the name. While filing the Charge Sheet the police have filed the Charge Sheet against RW.4. The RW.4 evidence which he has given before the Court is not 34 SCCH-1 MVC No.11/15 creditworthy. This Court also while cross examining RW.4 has notice that, the RW.4 is telling lie before the Court and subsequently he also admits that, the photo belong to him and voice available in Ex.R5 is also belong to him. The RW.3 Assistant Director of Cyber and Video Forensic Lab categorically in his evidence says that, the 3 images containing the DVD which were subjected were subjected to image authentication, examination, pixel analysis and error level analysis. Further opined that, based on the said examination, he has opined that, the recordings and the images containing in the DVD are authentic and represent true events and identified Ex.R4 and Ex.R5. Petitioner counsel did not cross examine this witness.
49. Under such circumstances, the conversion made by the Charge sheeted driver is clear that, one Nataraj was driving the vehicle on the date of the accident. Apart from that, the Nataraj's driving licence is not placed before the Court and the material available before the Court including Ex.R4 and 5 and admission of RW.4 takes away the case of the petitioner as well as the respondent No.2. The respondent No.2 remains absent 35 SCCH-1 MVC No.11/15 and not chosen to contest the case even though when there is a specific defence taken in the written statement in para 6 that, the driver was swapped and the driver who is having the driving licence has been implicated in the case.
50. The judgment of Hon'ble High Court Division Bench held in Veerappa another vs. Siddappa and another and the judgment of Hon'ble High Court in Bajaj Allianz General Insurance Co., Ltd., vs. B.C.Kumar and another is aptly applicable to the case on hand. The materials clearly discloses that, the driver has been swapped by the respondent No.2 in collusion with the police. Hence the insurance company is not liable to pay any compensation amount and instead of that the owner is liable to pay the compensation amount. The contention of the petitioner counsel that there is a chance of tamper, alteration and transposition, excision etc., without safeguards, the whole trail based on proof of electronic can lead to travesty of justice cannot be accepted. I have already pointed out that, the evidence of RW.3 has not been questioned by the petitioner counsel since the RW.3 categorically says that, the recordings and the images 36 SCCH-1 MVC No.11/15 containing in the DVD are authentic and represent true events. Hence the respondent No.2 owner of the offending vehicle bearing Reg.No. AP-29-V-8514 is liable to pay compensation to the petitioners. The case against respondent No.1 insurance company is liable to be dismissed. Accordingly, issue No.3 is answered.
51. Issue No.4: In the result I proceed to pass the following: -
ORDER The petition filed by the petitioners is allowed in part against respondent No.2 alone.
The petitioners are entitled for total compensation of Rs.24,31,000/- with interest at the rate of 9% per annum from the date of petition till realisation. The respondents No.2 is liable to pay the award amount and it is directed to pay the compensation amount within two months from the date of this order.
Compensation amount is apportioned as follows:-
Petitioner No.1 - Mother - Rs.20,45,000/-
Petitioner No.2 - Grandmother - Rs. 2,86,000/-
Petitioner No.3 - Brother - Rs. 1,00,000/-
Out of the total compensation amount an amount of Rs. 16,15,000/- with proportionate interest is ordered to be 37 SCCH-1 MVC No.11/15 released to the petitioner No.1 (since she has incurred an amount of Rs.11,87,000/- towards medical treatment prior to the death of the deceased) and remaining 4,30,000/- is to be invested in high yielding fixed deposit in the name of petitioner No.1 in any of the nationalized or scheduled bank of her choice for a period of 5 years.
Entire compensation amount apportioned in favour of petitioner No.2 and 3 along with interest is ordered to be released to them.
Petition against respondent No.1 is dismissed. Advocate's fee is fixed at Rs.1,000/-.
Draw an award accordingly.
(Dictated to the Stenographer, transcribed by her, corrected, signed and then pronounced by me in the open court dated this the 04th day of July 2016) (H.P.SANDESH) Member, Prl. M.A.C.T. Bangalore ANNEXURES Witnesses examined on behalf of the petitioners:
P.W.1 : Chowdamma Witnesses examined on behalf of the respondents :
R.W.1 : Prathibha S.
R.W.2 : Hemanth
R.W.3 : S. Neeru
R.W.4 : S.K.Adarsha
38 SCCH-1
MVC No.11/15
Documents marked on behalf of the petitioners:
Ex.P-1 : FIR Ex.P-2 : Sketch Ex.P-3 : Mahazar Ex.P-4 : IMV report Ex.P-5 : Inquest report Ex.P-6 : PM report Ex.P-7 : Chargesheet Ex.P-8 & 9 2 discharge summaries Ex.P-10 : Death memo Ex.P-11 : Notarised copy of Ration card Ex.P.12 Medical bills (8 in nos.) for Rs. 11,86,190/- Ex.P.13 12 Prescriptions
Documents marked on behalf of the respondents:
Ex.R-1 : Policy copy
Ex.R-2 : Letter sent to insured
Ex.R-3 : Postal Receipt
Ex.R-4 : Lab report
Ex.R-5 : DVD
Ex.R-6 : Letter issued by the company to investigate
Ex.R-7 : Investigation report submitted by RW.2 to the
company
Ex.R.8 : Photo
(H.P.SANDESH)
Member, Prl. M.A.C.T. Bangalore
*S.D.*
**********