Bangalore District Court
Nagabhushan K.R vs The Manager on 15 September, 2022
KABC020242492018
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES, AT BENGALURU
(SCCH24)
DATED THIS THE 15th DAY OF SEPTEMBER 2022
Present: Miss.B.T.ANNAPOORNESHWARI
B.A., L.L.B., L.L.M.
C/c XXII ADDL., SCJ & ACMM,
MEMBER MACT,
BENGALURU.
MVC No.5876/2018
PETITIONER/S: 1. Nagabhushan K.R.
S/o Kyatasandra Gubbi,
Huchappa Rajashekaraiah,
Aged about 66 years,
2. Smt.Chandana K.N.
W/o Naveen Kumar H.K.
D/o Nagabhushan K.R
Aged about 33 years,
3. Chethana K.
D/o K.R. Nagabhushan,
Aged about 33 years,
The petitioner No.1 & 3 are
R/at No.37,
Sri Channabasaweswara Krupa,
4th cross, P.F. Layout,
2 MVC No.5876/2018
SCCH-24
Vijayanagar,
Bangalore40.
The petitioner No.2 is
R/at No.29, 2nd cross,
Kempegowdanagara road,
Behind Tennis village,
Kodigehalli, Vidyaranyapura,
Bangalore97.
(By Sri.B.K.Kumara, Advocate.)
V/S
RESPONDENT/S 1. The Manager
Future General India Insurance
Co.Ltd., 3rd & 4th floor, No.31,
Shravanee Krishna Mansion,
100 feet road, 2nd block,
Jayanagar, Bangalore 11.
(Insurer of offended vehicle
Container lorry bearing
No.NL01K6412)
(By Sri.V.Shrihari Naidu,
Advocate.)
2. M/s Car Chassis Carriers Pvt.,
No.18, Muktaram Babu Street,
2nd floor, Kolkata, West Bengal.
(RC owner of offended
vehicle Container lorry bearing
No.NL01K6412)
(Exparte)
3 MVC No.5876/2018
SCCH-24
JUDGMENT
This is a Petition filed by the Petitioners under Section 166 of Motor Vehicles Act seeking Compensation of Rs.50,00,000/ for the death of Smt.Katyayini B.S. in a road traffic accident dated 13.09.2018.
2. The case of the Petitioners in brief is that, on 13.09.2018 at about 6.15 p.m., the deceased was a pillion rider on a Dio bearing No.KA06EP1076, which was ridden by her husband namely Nagabhushan K.R. very carefully, cautiously and observing all the traffic rules, when they reached opposite Sriraj Talkies towards Sira NH48 road fly over, Tumkur, at that time the driver of the Container lorry bearing Reg.NL01K6412 came at very high speed in a rash and negligent manner so as to endangering to human life came from behind side and tried to over take ahead lorry from left side and hit against the deceased's Dio, as a result both were fell down along with Dio and the deceased sustained severe head injury and 4 MVC No.5876/2018 SCCH-24 other injuries. Immediately after the accident she was taken to Siddaganga Hospital, wherein treated and necessary examination was done but inspite of best efforts made by the doctor the deceased was died on the same day at about 8.54 p.m., while undergoing treatment. Later the Post Mortem was conducted at Tumkur District Hospital and handed over the body to them and they performed funeral obsequious ceremonies by spending Rs.80,000/ and also incurred another sum of Rs.50,000/ towards treatment, transportation of dead body.
3. It is further case of the Petitioners that before accident the deceased was hale and healthy and was working as a section officer at Karnataka Information Commission and drawing a salary sum of Rs.68,601/ per month and was contributing her full earnings to the maintenance of her family. Due to sudden and tragic death of the deceased the petitioners have lost beloved wife and mother respectively and earning member of the family. 5 MVC No.5876/2018
SCCH-24 The Tumkur Traffic Police have registered a criminal case against the driver of container lorry bearing Reg.No.NL01 K6412 in Crime No.203/2018 under section 279, 337, 304A of IPC. Therefore, the Respondents being the insurer and the RC owner of the offending vehicle are jointly and severally liable to pay the compensation to them.
4. In response to service of notice issued by this court/Tribunal, the Respondent No.1 have appeared and filed written statement. In spite of due service of summons, the Respondent No.2 did not appear, hence placed exparte.
5. The Respondent No.1 insurance company has denied that the lorry bearing Reg.No.NL01K6412 was involved in the alleged accident and submitted that the petition is bad for non joinder of necessary and proper parties and further submits that the rider of the Scooter bearing Reg.No.KA06EP1074 without wearing helmet 6 MVC No.5876/2018 SCCH-24 and without a valid and effective driving license ridden the same on the date of the accident. Further have denied the averments made in columns 1 to 6, 8 to 10 as false and submitted that they have no knowledge about the averments made in para 11 to 14 of the petition and also denied the age, occupation and income of the deceased. Further submitted that the accident was due to negligence on the part of the rider of the Scooter, there was no negligence on the part of the drive of above lorry. It is admitted issuance of policy but their liability if any is subject to terms and conditions therein and submitted that there is non compliance of Section 134(c) and Section 158(6) of M.V. Act. Further submitted that the insured knowing fully well that the driver did not possess valid and effective DL willfully entrusted the vehicle to the said driver thereby committed the breach of the terms and conditions of the policy. Therefore, prayed for dismissal of the petition against them.
7 MVC No.5876/2018
SCCH-24
6. On the basis of the above pleadings the following issues are framed;
1.Whether the Petitioners prove that, they are legal heirs of the deceased Smt.Katyayini B.S.?
2. Whether the Petitioners prove that, Katyaayini.B.S., was died on account of road traffic accident took place opposite Sriraj Takis towards SiraNH48 road, Flyover, Tumukur, due to rash and negligent driving of the Lorry bearing No.NL01K6416, dated 13.09.2018 at about 06.15 p.m., ?
3. Whether the Petitioners are entitled for compensation? If so, how much and from whom?
4. What Order or Award?
7. The petitioners in order to prove their case have got examined the petitioner No.1 as PW.1 and got marked documents as per Exs.P.1 to P.15 and also examined Mr.Shantharaju Y.B. Secretary Information Commission as PW.2 and produced documents as per Exs.P.16 to P22. On the other side, the Respondent No.1 have examined its 8 MVC No.5876/2018 SCCH-24 legal officer as RW.1 and produced documents as per Exs.R1 to R5.
8. Heard arguments of both Counsel and perused the materials on record. The counsel for the petitioners has relied upon following decisions; (1) AIR 2018 SC 592:
Pappu & Ors., Vs.Vinod Kumar Lamba & Anr., (2) AIR 2020 SC 434: National Insurance Co.Ltd., Vs. Birender & Ors., (3) ACJ 2012 1428: Santosh Devi V. National Insurance Co.Ltd., & Ors., (4) MFA 9941/18 (MV) :Smt.Lakshmamma Vs. The Managing Director K.S.R.T.C Depot (5) ACJ 2015 1798: Padmavathi & Ors., K.Ravichandran & Anr., (6) Civil Appeal No.6451/21:N.Jayasree & Ors., Vs. Cholamandalam MS General Ins.Co.Ltd., (7) Civil Appeal No.1269/22 (8) ACJ 2008 1107: R.Valli & Ors., Vs.Tamil Nadu State Transport Corporation Ltd., (9) ACJ 2015 1798: Padmavathi & Ors., Vs. K.Ravichandran & Anr., (10) ACJ 2012 2569: Shalini & Ors., Vs.Harbhajan & Ors., (11) Civil Appeal 9 MVC No.5876/2018 SCCH-24 No.5513/2012 (ACJ 2013 1441) :Vimal Kanwar & Ors., Vs.Kishore Dan & Ors.. The counsel for the respondent No.1 has relied upon decision which are; (1) MFA No.7960 of 2016: Sri.Prathap P. Vs. The Royal Sundram Alliance & Ors., (2) 2008 ACJ 733: Oriental Insurance Co.Ltd., Vs. Prithvi Raj, (3) MFA No.100226 of 2016 : Smt. Padma & Ors., Vs. Ramanjali Naidu & Ors.. I have perused the said decisions.
9. My findings to the above issues are as follows: 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
10. Issue No.1: It is the case of the Petitioners that, the Petitioner No.1 is the husband, Petitioner Nos.2 and 3 are the children of 10 MVC No.5876/2018 SCCH-24 the deceased. To prove this relationship, the Petitioners have examined the first Petitioner as PW.1. The PW.1 has specifically deposed about this relationship in his chief examination. Apart from that, the Petitioners have also produced the Notarized copies of Aadhar Cards of the petitioner No.1 to 3 and the deceased as per Ex.P.8 to P.11. These documents are public documents which have got presumptive value under law. These documents have not been seriously disputed by the Respondent No.1 and there is no cross examination by the respondent No.1 and also not produced any contrary documents on record. As such, there are no reasons to discard the documents produced by the Petitioners. In the Adhaar card of the Petitioner No.1 his father's name is mentioned as Sri.Kyatsandra Gubbi Huchappa Rajashekaraiah. In the Aadhar Cards of the Petitioner No.2 the name of her husband is shown as Naveen Kumar H.K. and in the adhaar card of the Petitioner No.3 her father's name is mentioned as K.R.Nagabhushan 11 MVC No.5876/2018 SCCH-24 and in the Aadhar card of the deceased Katyayini B.S. the name of her husband is shown as Sri.Nagabhushana K.R. which supports the case of the petitioners that they are the husband and children of the deceased of this case. Under such circumstances, relying upon the evidence of PW.1 and documents produced as referred above, this court is of the opinion that the Petitioner No.1 is the husband and the Petitioner Nos.2 and 3 are the daughters of the deceased Smt.Katyayini. Accordingly, Issue No.1 is held in the affirmative.
11. Issue No.2: The Petitioners to prove that the accident was occurred due the actionable negligence on part of the driver of the Container lorry bearing Reg.No.NL01K6412 have examined the Petitioner No.1 as PW.1 and produced 7 documents as per Exs.P.1 to 7. The PW.1 has specifically deposed in his evidence that he and his wife Katyayini B.S. were proceeding on Dio bearing No.KA06EP1074 12 MVC No.5876/2018 SCCH-24 opposite to Sriraj Talkies towards Sira NH48 road flyover, very carefully, cautiously and observing all the traffic rules on the left side of the road, at that time the driver of the container lorry bearing No.NL01K6412 came from behind side at a very high speed in a rash and negligent manner and tried to overtake ahead lorry from left side and hit against their Dio, as a result both were fell down along with Dio and sustained injuries, consequent to which the deceased Katyayini B.S. succumbed to injuries, during the course of treatment. On the other side, the Respondent No.1 denied the case of the petitioners and denied the very involvement of the offending vehicle and rash and negligent act of the driver of the offending vehicle and also contended that there was negligence on the part of the rider of the Dio. In the crossexamination of PW.1 it is elicited that deceased did wear helmet on that day. Except this nothing worth is elicited from the mouth of the PW.1. 13 MVC No.5876/2018
SCCH-24
12. In support of the defence of R1 about non involvement of the insured vehicle and negligence on the part of the rider of the Dio, the Respondent No.1 has not examined any witness nor produced any documents. Despite this, the documents produced by the Petitioners such as the FIR in Cr.No.203/2018 of Tumkur Traffic Police Station, complaint, crime details form, MVA report, Inquest report, Postmortem report and chargesheet as per Exs.P.1 to P.7 are all public documents which have got presumptive value under law. Therefore, there are no reasons to discard the evidence of PW.1. The PM report produced as per Ex.P.6 clearly show that the deceased sustained injuries multiple injuries in the accident and on account of such injuries she succumbed. Under these circumstances, relying upon the oral evidence of the PW.1 coupled with the Exs.P.1 to P.7, this Tribunal is of the opinion that the driver of the offending container lorry driven it in a rash and negligent manner without observing 14 MVC No.5876/2018 SCCH-24 the traffic rules to endanger the human lives with high speed and lost the control over the vehicle and dashed against the Dio scooter, as result of which deceased Katyayini B.S. sustained grievous injuries and succumbed to the injuries during the course of treatment. Accordingly, I answer Issue No.2 is in the Affirmative.
13. Issue No.3: The PW.1 has specifically deposed before this court that they being the husband and children of the deceased were entirely depending upon the income of the deceased. They have lost their loving and affectionate person and bread earner of the family and therefore they are suffering from mental agony and financial difficulties. This court while discussing the issue No.2 has already come to the conclusion that the accident was occurred due to the rash and negligence of the driver of the container lorry and same as resulted in the death of the deceased - Smt.Katyayini B.S. Under such circumstances, the 15 MVC No.5876/2018 SCCH-24 Petitioners are entitled for compensation for the death of the deceased.
Monthly income:
14. According to the Petitioners, the deceased Katyayini B.S. was working as a Section Officer at Karnataka Information Commission and getting salary of Rs.68,610/ per month. In this regard, the PW.1 has produced pay slips, Income tax returns for the year 201617, 201718 and 201819 along with Form No.16 and notarized copy of bank passbook as per Exs.P12, P14 & P15. As per the salary slips from June 2018 to August 2018 it shows that the deceased drawn gross salary of Rs.68,544/ and after all the deductions she was getting take home salary of Rs.38,164/ per month. In the crossexamination of PW.1 it is elicited that he is a pensioner getting pension of Rs.33,000/ per month, he got about 35 lakhs benefits after the death of the deceased, he took all benefits after the death of the deceased, he is now getting Rs.29,900/ 16 MVC No.5876/2018 SCCH-24 p.m. pension of her wife which used to credit to his bank account and two years 7 months service was left to the deceased for the retirement. The petitioners have also examined Mr.Shantharaju Y.B.Secretary, Karnataka Information Commission, as PW.2 and produced 7 documents as per Exs.P.16 to P.22. In the cross examination of PW.2 it is brought out that the deceased joined to their Department on deputation on 26.12.2012, parent Department i.e. Kajane Department, Chitradurga liable to pay retirement benefits to the deceased and he cannot say whether the TDS certificate was issued to the deceased.
15. The Ex.P.12/three true copies of pay slips for the month of June 2018 to August 2018 showing gross salary of Rs.68,544/ but they do not contain the information about the DA, KGID deductions and date of birth of the deceased which ought to have contained in any pay slip of an Govt. Employee. The Ex.P.14 IT return 17 MVC No.5876/2018 SCCH-24 acknowledgement for the assessment years 201617 to 201819 alongwith them two Form No.16 for the year 201617 and one TDS traces are there, but on perusal of said Form No.16 it does not tally with the details of salary paid and deducted amount as Form No.16 for 201617 shows deposit of Rs.17,292 but the deduction amount by employer shows the total deduction of Rs.19,760/ and the TDS traces shows deposit of Rs.14,970/ for the assessment year 201819. Without statement of income alongwith the IT assessment form the said deductions cannot be considered as they do not completely show the information of the statement of income, deposit of TDS and form No.16. Ex.P.15 true copy of passbook statement of the deceased shows credit of Rs.30,961, 28,961, 40,221, 38,164 in the respective months to the account of deceased but from the said entries the gross salary of the deceased cannot be make out. The PW.2 produced the documents at Exs.P.16 to P.21 to prove that the deceased transferred 18 MVC No.5876/2018 SCCH-24 from the earlier station to their office and accordingly deceased joined and did service in their office. The Ex.P.22 containing two pay bills report for the month of April 2018 and May 2018 and also contains four pay slips for the month from June 2018 to September 2018 pertaining to the deceased. On perusal of said pay bill reports they clearly show gross salary of the deceased as Rs.53,841/ but the salary slips show the gross salary of the deceased as 68,544/ from June 2018 to August 2018 which are contrary to the pay bills which remitted to the treasury. The salary slip of June 2018 produced in Ex.P.22 is also contrary to the Ex.P.12 salary slip of June 2018. Therefore, from this it is crystal clear that the salary slips are created by showing excess salary of the deceased for the reasons best known to the petitioners and to the PW.2 contrary to their own documents to get wrongful gain. Therefore, the salary shown in the pay bill submitted to the treasury needs to be considered as correct salary of the 19 MVC No.5876/2018 SCCH-24 deceased existed prior to the death of the deceased i.e. in previous months and same is considered as income of the deceased. Therefore, the income of the deceased as on the date of her death is considered as Rs.53,841/ which was the gross salary for the month of May 2018.
Age of the deceased:
16. In so far as age of the deceased is concerned, the Petitioners have produced Aadhar card of the deceased as per Ex.P.11. Further the date of birth of the deceased as per pay slip produced by the PW.2 is shown as 20.05.1961. There is no contrary documents placed by the Respondent No.1. The PW.1 also stated the said date of birth of the deceased in his evidence. Therefore, this tribunal has to rely upon the said evidence. The accident was occurred on 13.09.2018. As such, as on the date of the accident she was aged about 57 years. Therefore, her age is considered 57 years.
20 MVC No.5876/2018
SCCH-24
(i) LOSS OF DEPENDENCY AND FUTURE
PROSPECTS:
The PW.1's evidence clearly shows that he is a pensioner and his two daughters are married and residing separately and he is residing separately. Therefore, from this evidence it is crystal clear that the petitioners were not at all depending on the income of the deceased as claimed. The counsel for the petitioners has relied upon the second decision referred above reported in AIR 2020 SC 434 wherein the Hon'ble Apex Court at para 15 held that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and were being agricultural labourers on contract basis earning meager income and considered as largely dependant on the earning of their mother and at para 20 considered the sons as dependents and deducted 1/3rd personal and living expenses. With due respect to the said decision this Tribunal is of the view that the facts and circumstances of that case and this case are different 21 MVC No.5876/2018 SCCH-24 as in this case the petitioners are husband who is pensioner and two married daughters and there is no evidence to prove that they were depending on the income of the deceased only and hence said decision is not applicable to the facts of this case. In the third decision the Hon'ble Apex Court at para 16 observed that no question was put to the witness in the crossexamination about the source of sustenance of her two sons and therefore there was no reason for the Tribunal to assume the sons who had become major can no longer be regarded as dependent on the deceased. The said third decision referred above is also not applicable to the facts of this case as in the crossexamination of PW.1 it is elicited that the petitioner No.1 is having source of pension and petitioners 2 and 3 are married daughters living in their husbands houses and depending on the income of their husbands. The fourth decision relied as narrated above the Hon'ble H.C. observed at para 12 that 1/3 rd needs to be 22 MVC No.5876/2018 SCCH-24 deducted as the deceased was married person, with due respect to the said decision this Tribunal is of the view that the said decision is not applicable as the deceased is female and as already discussed above the petitioners are not dependents on the deceased. The fifth, eighth and eleventh decisions relied upon by the counsel for the petitioner as referred above are applicable to the present case and the exgratia payment need not be deducted. With due respect to the other decisions, this Tribunal is of the view that the sixth, seventh, ninth and tenth decisions relied upon by the counsel for the petitioners are not applicable as the petitioners of this case are not considered as dependents on the income of the deceased lady and the facts and circumstances of those cases and this case are different. Therefore, for the above discussion the petitioners are not considered as the dependents of the deceased and hence they are not entitled for compensation under this head.
23 MVC No.5876/2018
SCCH-24
ii) LOSS OF CONSORTIUM
The Petitioner No.1 is the husband of the deceased Smt.Katyayini. He lost his loving, caring and affectionate wife during his old age. Therefore, he is entitled to get compensation under consortium. Therefore, the petitioner is entitled for a sum of Rs.40,000/ under the head of loss of consortium. In Magma General Insurance company Limited the Hon'ble Apex court has considered the compensation under head of loss of consortium. The Hon'ble Apex court in three judge Bench in United Indian Insurance Company Ltd. Vs. Satinder Kaur @ Satvinder Kaur and others, (2020) SCC online 410, had reaffirmed the view of the two judge Bench in Magma General Insurance company Ltd. In Paragraph 53 to 65, dealt with three conventional heads and discussed about "Consortium" to be a compendious term, which encompasses spousal consortium, parental consortium, as 24 MVC No.5876/2018 SCCH-24 well as filial consortium. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. Filial Consortium - A child's society, affection and companionship given to a parent. Therefore, the claimants 2 and 3 are also entitled for compensation under the head of consortium. As such, the Petitioners are entitled a sum of Rs.1,20,000/ (Rs.40,000/ each) under this head.
iii). TRANSPORTATION AND FUNERAL EXPENSES In so far as the funeral and transportation expenses are concerned, the Petitioners have stated that they have spent a sum of Rs.80,000/ towards funeral and last his rites and Rs.50,000/ towards treatment and transportation of dead body. But, there is no document produced in this regard. However, looking into the facts and circumstances of the case, it would be appropriate to award compensation 25 MVC No.5876/2018 SCCH-24 of Rs.25,000/ towards funeral and transportation expenses.
iv) LOSS TO THE ESTATE:
While discussing the head of loss of dependency it is held that the petitioners are not dependents on the deceased and hence the compensation is not awarded under the head of loss of dependency but the petitioners are entitled for loss to the estate. The procedure for determination of loss to estate is broadly the same as the procedure for determination of the loss of dependency. Both involve ascertaining the multiplicand and capitalizing it by multiplying it by an appropriate multiplier. But, the significant difference is in the figure arrived at as multiplicand in cases where the claimants who are not dependents claim loss to estate. The annual contribution to the family constitutes the multiplicand in the case of loss of dependency, whereas the annual savings of the deceased becomes the multiplicand in the case of loss to 26 MVC No.5876/2018 SCCH-24 estate. The method of selection of multiplier is however the same in both cases. The principles of awarding of compensation under the head of loss to estate is discussed by the Hon'ble H.C. in detail in the case of "A Manavalagan Vs. A.Krishnamurthy and others : ILR 2004 KAR 3268". In the present case the income of the deceased considered as Rs.53,841/ as referred above and as already held above the petitioners were not dependents on the income of the deceased. The petitioner No.1 and the deceased being husband and wife and residing together under common establishment. As the deceased and the petitioner No.1 were having common establishment and hence 1/3rd of the income of the deceased to be considered as savings which would have been made by the deceased. If this is considered and the quantum of savings taken as 1/3rd of the income of the deceased then it comes to Rs.17,947/ which will be the savings of the deceased and which is to be considered as multiplicand. The deceased 27 MVC No.5876/2018 SCCH-24 was aged 57 years as discussed above and as per the decision of Hon'ble Apex court in the case of Sarala Verma and Otrs. Vs. Delhi Transport Corporation and others, the multiplier applicable to the age of the deceased is 9. Then the loss to the estate comes to Rs.19,38,276/ (Rs.17,947/ X12 x 9=19,38,276/).
17. Therefore, the total compensation comes to Rs.20,83,276/ and if it is rounded off it comes to Rs.20,83,300/ and said amount is awarded as compensation to the petitioners.
LIABILITY:-
18. The respondent No.1 contended that as on the date of accident the driver of insured vehicle was not holding valid and effective DL and knowing the said fact the insured handed over the vehicle to such person which is in contravention of policy conditions and hence they are not liable to pay compensation to the petitioners. In 28 MVC No.5876/2018 SCCH-24 support of the defence the respondent No.1 has got examined its official as RW.1 who deposed that the company investigator visited the police station to collect information and documents and he collected all the documents and copy of driving license of Sri.Hasan S.K. S/o Raju S.K vide DL No.WB4120160092274 and the insurance company has sent the same to District Transport office, Burdwan, West Bengal, for verification in turn the licensing authority of Burdwan District Transport Office has issued a Memo No.353 dt.14.01.2019 stating that "On searching the database of computer of Sarathi in the office records the driving license No. WB 4120160092274 in the name of SK is not found' and they have also taken summons to said DTO in turn said office sent reply to the court and hence they are not liable to pay compensation to the petitioners. The RW.1 has got marked Exs.R.2 to R.5 which are copy of application under RTI Act, DL verification report, Motor claim form and letter dated 29 MVC No.5876/2018 SCCH-24 14.01.2018 sent by Bardhaman, RTO. In the cross examination it is elicited that in the reply given to the police notice by the owner of vehicle it is falsely mentioned that the driver was Raju Shait and the related Section is not included in the chargesheet with regard to non holding of valid DL. The respondent No.2/owner has not contested the case to prove that there was no breach of policy conditions. As per the documents produced by the RW.1 on investigation by their investigator the alleged DL number was not found in the concerned RTO. Except putting suggestions which are denied nothing worth is elicited from the mouth of RW.1 to disprove their contention with regard to nonholding of valid DL by the driver of the insured vehicle as on the date of accident. The respondent No.2 has remained absent and has not contested the case. The respondent No.1 by leading the evidence of RW.1 and producing the Exs.R.2 to R.5 which are RTA correspondence letter to the concerned RTO by 30 MVC No.5876/2018 SCCH-24 their investigator and reply by the RTO, Bardhaman, Dist. Purba Bardhaman, has clearly established that as on the date of accident the driver of the insured vehicle was not holding valid DL which is in contravention of the policy conditions.
19. The counsel for the respondent No.1 relied upon the first and second decisions which are referred above, wherein the Hon'ble H.C. and Hon'ble Apex court held that when the insurance company proved their defence that the DL was fake one by leading evidence then the insurer is exonerated from the liability. With due respect to the said decisions this Tribunal is of the view that in those case the insurer got examined the witness to prove that the DL was fake one but here in the present case the respondent No.1 only took summons but not examined any witnesses to prove that the DL was fake DL and hence said decisions are not applicable to the present case. The facts and circumstances of the third decision relied upon by the 31 MVC No.5876/2018 SCCH-24 counsel for the respondent No.1 is also not applicable for the reason that the facts and circumstances are different as in that case the insured not lead any evidence to prove that he had taken sufficient steps to ensure that there was no breach of the terms and conditions of the insurance policy as in this case the insured remained absent. The counsel for the petitioners has relied upon the first decision referred above for considering the principles of pay and recovery. Therefore, by relying upon the decisions in, (1) (2018)9 SCC 650: Shamanna and Anr. Vs. DM, OICL and Ors., (2) (2018)3 SCC 208: Pappu and Ors Vs. Vinod Kumar Lamba and Anr., (3) ILR 2020 KAR 2239 : NIA Vs. Yallamma and anr., under the principles of pay and recovery the respondent No.1 is directed to deposit the compensation awarded to the petitioners who are third parties. Therefore, for the above discussion the respondent No.2 being the owner of the offending vehicle is solely liable to pay said compensation to the petitioners. However, 32 MVC No.5876/2018 SCCH-24 under the principles of pay and recovery as per the above discussion as the policy existed and covered risk of third party, the respondent No.1 being the insurer is directed to pay compensation to the petitioners at the first instance and later to recover the same from the insured owner by filing Execution petition as per law. Though the Petitioners claimed compensation of Rs.50,00,000, but the Petitioners are entitled only for a sum of Rs.20,83,300/ alongwith interest @ 6% per annum from the date of petition till date of deposit. Therefore, the petition needs to be allowed in part. Accordingly I answer Issue No.3 is partly in the affirmative.
20. Issue No.4: For the reasons and discussions made above and findings to the above issues this Tribunal proceeds to pass the following: 33 MVC No.5876/2018 SCCH-24 ORDER The Petition filed by the Petitioners under Section 166 of Motor Vehicles Act is hereby allowed in part with cost.
The Petitioners are entitled for Compensation of Rs.20,83,300/ (Rupees
Twenty Lakhs Eighty Three Thousand and Three Hundred only) alongwith interest at the rate of 6% p.a., from the date of Petition till the date of deposit of the Award amount.
The Respondent No.2/owner is solely liable to pay compensation to the petitioners. However, the respondent No.1/Insurance Company is directed to deposit the Award amount and interest before this Tribunal within 60 days from the 34 MVC No.5876/2018 SCCH-24 date of this Judgement at the first instance and later to recover it from the respondent No.2/owner by filing execution petition. On deposit of the award amount and interest 20% shall be deposited in the name of the Petitioner No.1 in any N/S bank for period of 3 years with a liberty to withdraw the periodical interest and in the balance amount Rs.40,000/ each is to be released in the names of the Petitioner Nos.2 and 3 and the remaining entire balance to be released in favour of the petitioner No.1 by way of ePayment with proper identification and due acknowledgment as per Rules.
The Advocate's fee is fixed at Rs.1000/. 35 MVC No.5876/2018
SCCH-24 Draw Award accordingly.
(Dictated to the stenographer on line, revised, corrected and then pronounced in the open court this the 15th day of September, 2022.) (Miss.B.T.ANNAPOORNESHWARI) C/c XXII Addl. Small Causes Judge, Bangalore ANNEXURE List of witnesses examined on behalf of the Petitioner:
P.W.1 Sri.Nagabhushan K.R. P.W.2 Sri.Shantharaju Y.B. List of witnesses examined on behalf of the Respondents: RW.1 Sri.Shivananda
List of documents marked on behalf of the Petitioner:
Ex.P1 True copy of FIR
Ex.P2 True copy of Complaint
Ex.P3 True copy of Crime details form
Ex.P4 True copy of IMV report
Ex.P5 True copy of Inquest report
Ex.P6 True copy of Postmortem report
Ex.P7 True copy of Chargesheet
36 MVC No.5876/2018
SCCH-24
Ex.P8 Notarized copy of Aadhaar card of
Nagabhushan K.R (Original verified and returned) Ex.P9 Notarized copy of Aadhaar card of Chandana K.N (Original verified and returned) Ex.P10 Notarized copy of Aadhaar card of Chetana K.N (Original verified and returned) Ex.P11 Notarized copy of Aadhaar card of Katyayini B.S (Original verified and returned) Ex.P12 Pay slips (3 in no's) Ex.P13 Notarized copy of driving license of Nagabhushan K.R (Original verified and returned) Ex.P.14 Income Tax returns for the year 201617, 2017 18 and 201819 along with Form No.16. Ex.P15 Notarized copy of bank passbook Ex.P16 Copy of Government of Karnataka Notification dated 22.11.2012 Ex.P17 True copy of transfer deputation certificate Ex.P18 Attested copy of letter issued by Katyayini reporting for duty Ex.P19 Attested copy of the office proceedings dated 24.12.2012 Ex.P20 True copy of transfer deputation certificate Ex.P21 Attested copy of the attendance register 37 MVC No.5876/2018 SCCH-24 Ex.P22 Attested copy of Salary certificate from April to September 2018 List of documents marked on behalf of the Respondents:
Ex.R.1 True copy of Insurance Policy Ex.R.2 Copy of the application under RTI Act Ex.R.3 DL verification report Ex.R.4 Motor Claim Form Ex.R.5 Letter dated 14.01.2018 sent by Bardhaman RTO (Miss.B.T.ANNAPOORNESHWARI) C/c XXII Addl. Small Causes Judge, Bangalore.38 MVC No.5876/2018
SCCH-24 15.09.2022 PBKK R1VSN R2Exparte For Judgment Pronounced vide separate judgment with following operative portion:
ORDER The Petition filed by the Petitioners under Section 166 of Motor Vehicles Act is hereby allowed in part with cost.
The Petitioners are entitled for
Compensation of Rs.20,83,300/ (Rupees
Twenty Lakhs Eighty Three Thousand and Three Hundred only) alongwith interest at the rate of 6% p.a., from the date of Petition till the date of deposit of the Award amount. 39 MVC No.5876/2018
SCCH-24 The Respondent No.2/owner is solely liable to pay compensation to the petitioners. However, the respondent No.1/Insurance Company is directed to deposit the Award amount and interest before this Tribunal within 60 days from the date of this Judgement at the first instance and later to recover it from the respondent No.2/owner by filing execution petition.
On deposit of the award amount and interest 20% shall be deposited in the name of the Petitioner No.1 in any N/S bank for period of 3 years with a liberty to withdraw the periodical interest and in the balance amount Rs.40,000/ each is to be released in the names of the Petitioner Nos.2 and 3 and the remaining entire balance to be released 40 MVC No.5876/2018 SCCH-24 in favour of the petitioner No.1 by way of ePayment with proper identification and due acknowledgment as per Rules. The Advocate's fee is fixed at Rs.1000/. Draw Award accordingly.
(Miss.B.T.ANNAPOORNESHWARI) C/c XXII Addl. Small Causes Judge, Bangalore.
AWARD BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA: BANGALORE CITY (SCCH24) MVC No.5876/2018 PETITIONER/S: 1. Nagabhushan K.R. S/o Kyatasandra Gubbi, Huchappa Rajashekaraiah, Aged about 66 years,
2. Smt.Chandana K.N. W/o Naveen Kumar H.K. D/o Nagabhushan K.R Aged about 33 years,
3. Chethana K. D/o K.R. Nagabhushan, Aged about 33 years, The petitioner No.1 & 3 are R/at No.37, Sri Channabasaweswara Krupa, 4th cross, P.F. Layout, Vijayanagar, Bangalore40.
The petitioner No.2 is R/at No.29, 2nd cross, Kempegowdanagara road, Behind Tennis village, Kodigehalli, Vidyaranyapura, Bangalore97.
(By Sri.B.K.Kumara, Advocate.) V/S 42 MVC No.5876/2018 SCCH-24 RESPONDENT/S 1. The Manager Future General India Insurance Co.Ltd., 3rd & 4th floor, No.31, Shravanee Krishna Mansion, 100 feet road, 2nd block, Jayanagar, Bangalore 11.
(Insurer of offended vehicle Container lorry bearing No.NL01K6412) (By Sri.V.Shrihari Naidu, Advocate.)
2. M/s Car Chassis Carriers Pvt., No.18, Muktaram Babu Street, 2nd floor, Kolkata, West Bengal.
(RC owner of offended vehicle Container lorry bearing No.NL01K6412) (Exparte) WHEREAS, this petition filed on by the Petitioner/s above named U/sec.166 of the M.V.C. Act, praying for the compensation of Rs.
(Rupees ) for the injuries sustained by the Petitioner/Death of in a Motor Accident by Vehicle No. 43 MVC No.5876/2018 SCCH-24 WHEREAS, this claim petition coming up on for final disposal before Miss. B.T.Annapoorneshwari, C/c XXII Addl.Judge, Member, Bangalore, in the presence of Sri/Smt. Advocate for Petitioner/s and of Sri/Smt. Advocate for Respondent.
ORDER The Petition filed by the Petitioners under Section 166 of Motor Vehicles Act is hereby allowed in part with cost.
The Petitioners are entitled for
Compensation of Rs.20,83,300/ (Rupees
Twenty Lakhs Eighty Three Thousand and Three Hundred only) alongwith interest at the 44 MVC No.5876/2018 SCCH-24 rate of 6% p.a., from the date of Petition till the date of deposit of the Award amount.
The Respondent No.2/owner is solely liable to pay compensation to the petitioners. However, the respondent No.1/Insurance Company is directed to deposit the Award amount and interest before this Tribunal within 60 days from the date of this Judgement at the first instance and later to recover it from the respondent No.2/owner by filing execution petition.
On deposit of the award amount and interest 20% shall be deposited in the name of the Petitioner No.1 in any N/S bank for period of 3 years with a liberty to withdraw the periodical interest and in the balance 45 MVC No.5876/2018 SCCH-24 amount Rs.40,000/ each is to be released in the names of the Petitioner Nos.2 and 3 and the remaining entire balance to be released in favour of the petitioner No.1 by way of ePayment with proper identification and due acknowledgment as per Rules.
The Advocate's fee is fixed at Rs.1000/. Given under my hand and seal of the Court this 15th day of September 2022.
MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, METROPOLITAN AREA BANGALORE.
46 MVC No.5876/2018
SCCH-24 By the __________________________________ Petitioner/s Respondent Court fee paid on petition 1000 Court fee paid on Powers 0000 Court fee paid on I.A. Process Pleaders Fee _________________________________ Total Rs.
_________________________________ Decree Drafted Scrutinised by MEMBER, M.A.C.T.METROPOLITAN:
BANGALORE Decree Clerk SHERISTEDAR 47 MVC No.5876/2018 SCCH-24