Bangalore District Court
Saraswathi vs Chandrashekar C.A on 18 April, 2017
BEFORE VII ADDL. JUDGE, MACT & XXXII
ACMM
Court of Small Causes, Bangalore, (SCCH-3)
DATED THIS THE 18th April 2017
PRESENT:
Smt.GOMATI RAGHAVENDRA
LL.M, D.I.P.R, D.C.L
VII Addl. Judge & XXXII ACMM,
Court of Small Causes, Bengaluru.
M.V.C.No.2583/2016
Petitioners 1. Saraswathi, Wife of Shiva @
Shivamadhu @ Shivakumar J.,
Aged about 33 years,
2. Nagarathna S.,
Daughter of Late Shiva @
Shivamadhu @ Shivakumar J.,
Aged about 18 years,
3. Bhavya S,
Daughter of Shiva @ Shivamadhu
@ Shivakumar J.,
Aged about 15 years,
Petitioner No.3 is minor,
represented by her natural
guardian mother Saraswathi,
1st petitioner. Petitioner Nos. 1 to
3 are residing at No.28,
Chikkegowdanapalya, near
Kabbalamma Temple,
Thalaghattapura post,
2 SCCH-3 MVC 2583/2016
Kengeri Hobli,
Bengaluru South - 560 062.
(Shri K.Nissar Ahmed, Advocate)
V/s
Respondents 1.Chandrashekar C.A.,
Son of Abbanna,
Aged about 50 years,
Channasandra Main Road, Opp. Kiran
Jewells, Kadugodi, Bengaluur-560 067.
(RC owner of Toyota Innova bearing
No.KA-53-N-1788)
(Shri Nizam Pasha, Advocate)
2.United India Insurance Co.Ltd.,
No.196, 2nd cross, Vidyanagara,
Opp. SKF Company, Bommasandra
Industrial Area, Hebbagodi,
Hosur Main Road, Bengaluru-560 099.
Policy
No.071884/31/14/01/00000186 Valid
from 21.6.2014 to 20.6.2015.
(Shri Y.P.Venkatapathi, Advocate)
JUDGMENT
This petition is filed by the petitioners U/s.166 of the Motor Vehicles Act 1989, for grant of compensation of Rs.30,00,000/- on account of death of Shiva @ 3 SCCH-3 MVC 2583/2016 Shivamadhu @ Shivakumar J., Son of Late Late Jogappa in a Road Traffic Accident.
2.The case of the petitioners in brief is as under:
On 20.10.2014 at about 10.40 a.m. Shiva @ Shivamadhu @ Shivakumar J. was riding his motor cycle bearing No.KA-05-HP-1078 from Yadiyur side on the left side of the road, by observing the traffic rules and regulations, when he reached near Magadipalya circle on NH-75, Yadiyur Hobli, Kunigal Taluk, at that time one Innova car bearing No.KA-53-N-1788 came from Yadiyur side driven by its driver with high speed in a rash and negligent manner dashed against TVS Star City motor cycle. Due to which, Shiva @ Shivamadhu @ Shivakumar J., sustained grievous injuries and was succumbed on the spot. Post mortem was conducted and body was handed over to the petitioners. The petitioners have performed the funeral and obsequies.4 SCCH-3 MVC 2583/2016
3.Prior to the accident, deceased was hale and healthy, was doing carpentary work at New Ashoka Saw Mill, Muthurayanagar, Bengaluur and getting a sum of Rs.5,000/- per month and with daily bata of Rs.300/- per day. Due to untimely death of Shiva @ Shivamadhu @ Shivakumar J., all his family members are dipped in the ocean of sorrow, who was maintaining and managing the petitioners in whole and sole.
4.Petitioner No.1 is the wife and petitioner Nos.2 and 3 are the children of deceased who have lost the affectionate and care taker. The accident in question has taken place due to rash and negligent driving of the driver of Innova car. Hence, this petition claiming compensation.
5. In response to service of summons, respondents have appeared through their counsel and filed the written statement.
6. Respondent No.1 - RC owner of the offending vehicle has alleged that the accident occurred purely due to 5 SCCH-3 MVC 2583/2016 the rash and negligent riding of the rider of the Star Bike bearing No.KA-05-HP-1078, which was coming from opposite side. The Amruthur police have registered a false case against the driver of the Innova car. Further stated that the Innova car bearing No.KA-53-N-1788 is having insurance with the 2nd respondent and the policy was in force as on the date of accident and the driver of the car was having valid and effective driving licence as on the date of accident. Thus, denying rest of the petition contents, this respondent has sought for dismissal of the petition.
7.The respondent No.2 has admitted about the issuance of the policy in respect of car bearing No.KA-53-N- 1788 and its validity as on the date of accident but its liability is subject to terms and conditions of policy. it has denied the manner of the accident as well as age, income and avocation of the petitioner as pleaded in the petition. Thus, denying rest of the petition contents, this respondent has sought for dismissal of the petition.
6 SCCH-3 MVC 2583/2016
8. On the basis of the rival contentions, pleadings, materials available on record, the tribunal has framed the following:
ISSUES
1. Whether petitioners prove that they are the LRs of the deceased Shri Shivu @ Shivamadhu @ Shivakumar?
2. Whether the petitioners prove that the deceased Shivu @ Shivamadhu @ Shivakumar was died in RTA arising out of the accident alleged to have bean taken place on 20.10.2014 at about 10.40 a.m. on NH-75 road, (old NH-48), near Magadipaly Circle, Yadiyur hobli, Kunigal Taluk, Tumkur District due to the rash and negligent driving of the driver of Innova car bearing No.KA-53-N-1788 as alleged in the petition?7 SCCH-3 MVC 2583/2016
3. Whether the petitioners are entitled for compensation? If so, what amount and from whom?
4. What order or award?
9. In support of petition contents, petitioner No.2 examined herself as PW1, Manager of New Ashoka Saw Mill is examined as PW2 and eye witness is examined as PW3 and got marked documents at Ex.P.1 to Ex.P.23.
10. Heard, perused, materials available on record.
11. My findings on the above issues are as under:
Issue No.1 : In the Affirmative.
Issue No.2 : In the Affirmative
Issue No.3 : Partly in the Affirmative.
Issue No.4 : As per final order
for the following:
REASONS
12. Issue No.1: According to the petitioners, they
are wife and children of deceased Shivu @ Shivamadhu @ Shivakumar. In order to substantiate these contents, 8 SCCH-3 MVC 2583/2016 petitioner No.2 stepped into the witness box and led evidence as PW.1, who in her affidavit evidence has reiterated similar to the petition contents. In support of her documentary evidence she has placed reliance of Adhar card, Voter ID card of 1st petitioner, SSLC marks card of 2nd petitioner, Educational certificate of 3rd petitioner which are respectively marked at Ex.P9 to Ex.P11 and Ex.P16 to Ex.P18, which reveals that the petitioners are the wife and children of the deceased Shivakumar.
13. It is also the contention of the petitioners that said Shivu @ Shivamadhu @ Shivakumar on the date of accident at relevant point of time while he was proceeding in a Star City Motor bike bearing No.KA-05-HP-1078 from Yadiyur side on the left side of the road, by observing the traffic rules and regulations, when he reached near Magadipalya circle on NH-75, Yadiyur Hobli, Kunigal Taluk, at that time one Innova car bearing No.KA-53-N- 9 SCCH-3 MVC 2583/2016 1788 came from Yadiyur side driven by its driver with high speed in a rash and negligent manner dashed against TVS Star City motor cycle. Due to which, Shiva @ Shivamadhu @ Shivakumar J., sustained grievous injuries and was succumbed on the spot. In order to prove these contentions, petitioner No.1 as PW-1 has placed reliance of Complaint, FIR, Spot Mahazar, Spot sketch, Inquest report, Post Mortem report, IMV report and charge sheet, which are respectively marked at Ex.P.1 to Ex.P8. PW3 is the eye witness to the incident who supports the case of the petitioners.
14. On perusal of the complaint, it reveals that, it is lodged by Shivamurthy, Son of Late Chikkanna who has stated in his complaint that, while he was standing on the left side of Mangaluru-Bengaluru road, NH-75, after finishing his personal work at that time driver of the Innova car came with high speed in a rash and negligent manner 10 SCCH-3 MVC 2583/2016 dashed against the rider of the motor cycle. Due to which he has sustained grievous injuries and died on the spot. Based on the complaint, FIR came to be registered by the Kunigal police against the driver of the Innova car for the offences punishable under section 279 and 304A of IPC. PW-1 has also placed reliance of the spot mahazar at Ex.P3 and Spot sketch at Ex.P4 prepared by the I.O. which also support the case of the petitioners. The IMV report is marked at Ex.P.7 perusal of which it clearly discloses that the accident occurred not due to any mechanical defect of the vehicle. Ex.P8 is the charge sheet discloses that after investigation I.O. has filed the charge sheet against the offending vehicle for the offences punishable u/s 279 and 304(A) of IPC. PW1 has also relied upon the inquest report at Ex.P.5 as well as PM report at Ex.P.6. These documents also corroborate evidence of PW-1.
15. Although respondents have resisted the petition by denying the claim of the petitioners, but absolutely 11 SCCH-3 MVC 2583/2016 failed to rely upon convincing materials or to disprove the evidence relied upon the petitioners both oral and documentary. Under such circumstances, taking into consideration of aforesaid discussion, evidence of both the parties, this Tribunal is of the considered opinion that the accident in question has taken place due to wrongful act of driver of offending vehicle resulting the death of deceased Shiva @ Shivamadhu @ Shivakumar. Therefore Issue Nos.1 and 2 are answered in the Affirmative.
16. Issue No.2:
Loss of dependency:-
PW1 is the daughter of the deceased Shiva @ Shivamadhu @ Shivakumar in her evidence has stated that prior to the accident her father was hale and healthy, aged about 36 years and doing carpentary work at New Ashoka Saw Mill at Mutturayanagar, Bengaluru by getting monthly salary of Rs.5,000/- and Rs.,300/- daily bata. He was 12 SCCH-3 MVC 2583/2016 contributing his entire income for the maintenance of the family and they are all depending on his earnings. Due to the sudden and untimely death of her father, the life of the petitioners has become dark, miserable and depressed including great financial loss. They have lost the love and affection of deceased. PW1 has produced salary certificate at Ex.P20, which reveals that he was getting salary of Rs.5,000/- and bata of Rs.300/- per month. In this regard PW1 has examined Manager of Ashoka Saw Mill as PW2. PW2 in his evidence has stated that Shiva @ Shivamadu @ Shivakumar was working as a carpenter at his company and he was paid the bata of Rs.300/- per day and Rs.5,000/- per month. He has produced authorization letter at Ex.P21, notarized copy of Aadhar card at Ex.P22 and VAT certificate at Ex.P23 respectively. Though PW1 has examined PW2 and produced the salary certificate, but he has produced acquaintance roll to show that how much amount the deceased was receiving as his salary. In the 13 SCCH-3 MVC 2583/2016 cross-examination PW2 has admitted that usually all the companies maintains salary register. In the absence of the materials on record, it is very difficult to believe the version of PW1 and PW2 pertaining to avocation and income of the deceased. So, considering the present life condition and age of the petitioner if Rs.7,000/- per month will be considered as notional income of the deceased, it will meet the ends of justice.
17. PW1 in her evidence has stated that her father was aged about 36 years at the time of accident. She has produced driving licence at Ex.P12, which discloses that date of birth of the deceased was 15.5.1975. The accident occurred on 20.10.2014. So, as on the date of accident he was aged about 39 years, five months. Therefore the age of the deceased shall be considered as 39 years at the time of accident.
14 SCCH-3 MVC 2583/2016
18. This court has drawn the attention on the principles laid down in Rajesh and Rajabir Singh case for future prospects reported in 2013 ACJ 1403 in between the Rajesh and others Vs. Rajabir Singh and Others reads like thus;
Quantum - Fatal accident - Principles of assessment - Future prospects - Whether formula for increase of income for future prospects adopted for persons with permanent jobs in Sarla Verma's case, 2009 ACJ 1298 (SC), may also be applied to the persons who are self employed or were engaged on fixed wages - Held: yes; 50 per cent of actual income (after deduction of tax) for persons below 40 years; 30 per cent for age group of 40-50 years; 15 per cent for age group of 50-60 years; but no addition thereafter.
19. On careful perusal of the above said decision, their lordship held that by virtue of Sarla Verma's case, 2009 ACJ 1298 (SC), the future prospects adopted for persons with permanent jobs, may also be applied to the 15 SCCH-3 MVC 2583/2016 persons who are self employed or were engaged on fixed wages. 50 per cent of actual income (after deduction of tax) for persons below 40 years; 30 per cent for age group of 40- 50 years; 15 per cent for age group of 50-60 years; but no addition thereafter.
20. In the instant case the deceased was died in a road traffic accident when his age was 39 years and the decision as stated above is clear that the Tribunal has to consider future prospects even self-employed or were engaged on fixed wages. Admittedly the deceased falls below 40 years. So, 50% of the future prospects is taken into consideration it comes to Rs.7,000/- + 50% = Rs.10,500/-. Then annual income comes to Rs.1,26,000/-.
21. The petitioners have produced the true copy of Adhar card marked at Ex.P9 to Ex.P11 which reflects that the petitioner Nos.1 to 3 are none other than the wife and children of the deceased Shiva @ Shivamadhu. PW1 has 16 SCCH-3 MVC 2583/2016 also produced RC book at Ex.P13, Voter ID of deceased at Ex.P14 and AAdhar card of Ex.P15. So, by virtue of decision reported in 2009 ACJ 1298 in between Sarla Verma Vs. Delhi Transport Corporation where the number of dependants 2-3, 1/3rd has to be deducted as his personal and living expenses of the deceased. In the instant case there are three dependants to the deceased. So, 1/3rd has to be deducted towards his personal and living expenses, so it comes to Rs.84,000/-. As on the date of date of alleged accident the deceased was aged about 39 years. So as per Sarla Verma Vs. Delhi Corporation Ltd in 2009 ACJ 1298 the multiplier 15 is applicable. So, Rs.84,000X15=Rs.12,60,000/- towards loss of dependency. So the petitioners are entitled for the said amount towards loss of dependency.
22. The petitioner No.1 is none other than the wife of the deceased. So, she lost her husband at the age of 33 17 SCCH-3 MVC 2583/2016 years. So, Rs.20,000/- is awarded under the head of loss of consortium and Rs.20,000/- each is awarded to the petitioner Nos.2 and 3 being children who have lost the love and affection and care taker and Rs.20,000/- is awarded to the petitioner No.1 towards loss of love and affection. Rs.10,000/- is awarded under the head of loss of estate and Rs.20,000/- is awarded towards transportation of dead body and funeral and obsequies.
23. Thus, the total award stands as follows:
1.Loss of dependency Rs.12,60,000-00
2.Loss of consortium Rs. 20,000-00
3.Loss of love and affection Rs. 60,000-00 and care taker
4.Loss of estate Rs. 10,000-00
5.Transportation of dead Rs. 20,000-00 body and funeral expenses Total Rs.13,70,000-00 Thus, the petitioners are entitled for the total compensation of Rs.13,70,000/- only.18 SCCH-3 MVC 2583/2016
24. Liability:- While discussing previous issues, this Tribunal has reached to the conclusion that the accident has taken place due to wrongful act on the part of the driver of the Innova car bearing Reg. No.KA-53-N-1788. According to the petitioners, respondent Nos.1 and 2 being the owner and the insurer of the offending vehicle are jointly and severally liable to pay compensation to them.
25. Respondent No.2 has admitted about the existence of the policy in respect of Innova car and validity of the policy from 21.6.2014 to 20.6.2015. The accident occurred on 20.10.2014. So, as on the date of the accident the policy was in existence. Therefore, the respondent No.1 & 2 are jointly and severally liable to pay the compensation. In view of the valid insurance policy, the respondent No.2 is liable to pay the compensation with interest at 8% p.a. from the date of petition till its realization. Hence point No.2 is answered partly in the affirmative.
19 SCCH-3 MVC 2583/2016
26. Issue No.3: In view of my above finding on point Nos.1 and 2, I proceed to pass the following:
:ORDER:
The claim petition filed by the petitioners under Sec.166 of MV Act is allowed in part.
Petitioners are entitled for compensation of Rs.13,70,000/- with costs and future interest at 8% p.a., from the date of petition till its realization.
The respondents are jointly and severally liable to pay the compensation, but in view of the valid insurance policy the respondent No.2 is liable to pay compensation with interest at 8% p.a., from the petition till its realization within two months from the date of this award.
Out of the compensation amount together with interest, 60% of the amount shall be allotted to the share of petitioner No.1, 20% each is allotted to the share of petitioner Nos.2 & 3.20 SCCH-3 MVC 2583/2016
With regard to the share of petitioner Nos.1 & 2, 40% of the amount shall be kept in FD in their names in any nationalized or scheduled bank for a period of three years and remaining 60% of the amount shall be released to them through account payee cheque on proper identification. The petitioners are at liberty to withdraw the periodical interest accrued on their deposit amount from time to time.
With regard to the share of petitioner No.3 being minor, entire amount shall be deposited in her name in any nationalized or scheduled bank till she attains age of majority, after attaining majority the entire amount shall be released to her through account payee cheque on proper identification. The guardian of the petitioner is at liberty to withdraw the periodical interest accrued on her deposit amount from time to time.
The Advocate's fee is fixed at Rs.1,000/-. 21 SCCH-3 MVC 2583/2016 Draw award accordingly.
(Dictated to the stenographer online, corrected by me and then pronounced in the open court on this the 18th day of April 2017) (GOMATI RAGHAVENDRA) VII Addl. Judge & XXXII ACMM, Bengaluru.
ANNEXURE List of witnesses examined for the petitioners:
PW1 Sm.T Nagarathna PW2 Shri G.Vijayakumar PW3 Shri Shivamurthy
List of witnesses examined for the Respondents:
None List of documents marked on behalf of the petitioners:
Ex.P1 : Copy of Complaint,
Ex.P2 : Copy of FIR,
Ex.P3 : Copy of Spot Mahazar,
Ex.P4 : Copy of Spot sketch,
Ex.P5 : Copy of Inquest report
Ex.P6 : Copy of PM report
Ex.P7 : Copy of IMV report
22 SCCH-3 MVC 2583/2016
Ex.P8 : Copy of charge sheet
Ex.P9 : Notarised copy of Aadhar card of 1st petitioner
Ex.P10 : Notarised copy of Aadhar card of 2nd petitioner Ex.P11 : Notarised copy of Adhar card of 3rd petitioner Ex.P12 : Notarised copy of driving licence of deceased Ex.P13 : Notarised copy of RC Ex.P14 : Notarised copy of voter ID card of deceased Ex.P15 Copy of copy of Aadhar card of deceased Ex.P16 Notarised copy of voter ID card of 1st petitioner Ex.P17 Notarised copy of SSLC marks card of 2nd petitioner Ex.P18 Educational certificate of third petitioner Ex.P19 Death certificate Ex.P20 Salary certificate of deceased Ex.P21 Authorisation letter Ex.P22 Notarised copy of Aadhar card Ex.P23 Notarised copy of VAT certificate List of documents marked on behalf of the Respondents:
Nil (GOMATI RAGHAVENDRA) VII Addl. Judge & XXXII ACMM, Bengaluru.