Bangalore District Court
Smt.Baby Shriyan vs Shri Puttaswamy on 30 November, 2022
KABC020020352015
IN THE COURT OF III ADDL.JUDGE AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, COURT OF
SMALL CAUSES
BENGALURU
(SCCH18)
Dated: This the 30th day of November 2022
Present: V.NAGAMANI
B.A.L., LL.B., LL.M.,
III ADDL. JUDGE &
MEMBER, MACT
COURT OF SMALL CAUSES,
BENGALURU.
M.V.C. No.1138/2015
Petitioners 1.Smt.Baby Shriyan,
Wife of Late Sanjeevi
Shriyana,
Aged about 53 years,
2.Asha,
Daughter of Sanjeevi Shriyan,
Aged about 30 years,
3.Usha,
Daughter of Late Sanjeevi
Shriyan,
2 SCCH-18 MVC 1138/2015
Aged about 24 years,
4. Latha,
Daughter of Late Sanjeevi
Shriyan,
Aged about 24 years,
5.Anusha,
Daughter of Late Sanjeevi
Shriyan,
Aged about 21 years,
6. Smt.Giriya,
Wife of Late Suranna Pujari,
Aged about 80 years,
All are residing No.117/4,
M.E.S. School Road,
Laggere,
Bengaluru560 058.
(By Pleader Shri Nataraj)
V/s
Respondents 1.Shri Puttaswamy,
Son of Aravaiah,
No.3595, 1st Main Road,
8th Cross,
Gayathrinagar,
Bengaluru560 021.
(By Pleader Shri
G.N.Shivalinge Gowda)
2. United India Insurance Co.
Ltd., No.27/A, 2nd Floor,
Thangavelu Building,
Near Indian Bank,
Jalahalli Cross,
3 SCCH-18 MVC 1138/2015
Bengaluru560 057.
(By Pleader
Smt.R.Sharadhamba)
*J U D G M E N T*
This judgment is emerged consequent upon the
petition filed by the petitioners U/S 166 of M.V. Act,
claiming compensation of Rs.35,00,000/ on
account of the death of Sanjeev Shriyana in a road
traffic accident.
*FACTS OF THE CASE IN NUTSHELL *
2. Facts leading to the case of the petitioners
forthcoming in the petition that, on the fateful day of
15.1.2015 at about 7.00 p.m. deceased was
pedestrian going the side of GKW main road, Peenya
2nd stage, Bengaluru carefully, cautiously observing
all the traffic rules and regulations, when he reached
near Sri Rama Temple, at that time Maxi cab bearing
registration No.KA045252 driven by its driver with
high speed in a rash and negligent manner, so as to
4 SCCH-18 MVC 1138/2015
endanger human life, all of a sudden dashed against
the Shajeev Shriyan. Due to the said impact, Shajeev
Shriyan knocked to the ground and sustained severe
head injuries.
3. Immediately, Sanjeev Shriyan was shifted to
Jai Maruthi Hospital Bengaluru, wherein first aid
was given and then he was shifted to Columbia Asia
Hospital, Bengaluru, again he was shifted to BGS
Global Hospital, Bengaluru, wherein, he was
admitted as an inpatient, inspite of best efforts of the
doctors to save the life of the deceased, the deceased
succumbed to the injuries on 19.1.2015. Thereafter
dead body was shifted to Sapthagiri Hospital,
Bengaluru, wherein, post mortem was conducted and
the body of the deceased was handed over to the
petitioners. The petitioners have spent
Rs.5,000,000/ towards funeral and obsequies.
Subsequently, obsequies and funeral ceremonies of
5 SCCH-18 MVC 1138/2015
the deceased was performed by spending
Rs.1,00,000/.
4. It is further stated in the petition that, prior
to the accident, the deceased was hale and healthy,
and was aged about 61 years. And he was running a
Bakery and was getting an income of Rs.30,000/ per
annum. He was contributing his entire earnings for
the maintenance of his family, being the sole bread
earner of the family. Due to the unnatural death of
the deceased, the petitioners' life become dark,
miserable and depressed and put to great financial
hardship.
5. It is alleged in the petition that, the accident
was occurred, due to the negligent act of the driver of
the offending vehicle, Maxi Cab bearing registration
No.KA045252. In this regard, criminal case was
registered against him, in Crime No.7/2015 for the
offences punishable under section 279 and 304(A)
6 SCCH-18 MVC 1138/2015
of I.P.C, by the jurisdictional police, on the basis of
the first information, received in this regard. As
such, the respondent No.1 being the owner and the
respondent No.2 being the insurer are jointly and
severally liable to pay compensation to the
petitioners. Hence, the petitioners have approached
this court, seeking compensation of Rs.35,00,000/
consequent upon the death of Shnjeev Shriyana in
the alleged accident.
6. After the service of the notice of this
petition, the respondent No.1 being the owner of the
offending vehicle, remained absent and placed
exparte. On the other hand, the respondent No.2,
being the insurance company, had filed written
statement, in answer to the case of the petitioners.
7. The respondent No.2, in the written
statement, has not seriously disputed the accident,
and the death of Sanjeev Shriyana. This respondent
has specifically denied the issuance of policy in
7 SCCH-18 MVC 1138/2015
respect of Maxi cab bearing No.KA045252. Further
contended that, the driver of the Maxi Cab was not
holding valid driving licence to drive the said vehicle,
the respondent No.1 being the owner of the said
vehicle, without taking proper care and caution
allowed him to drive the same. As such Peenya
Traffic Police after investigation filed the charge
sheet against the driver as well as owner of the
vehicle u/s 3(1) R/W Sec. 5 R/W 180 of the M.V. Act.
And it is the contention of the respondent No.2 that,
the offending vehicle had no valid permit and F.C. to
ply on the road. And stated that, neither the owner
of the vehicle nor the jurisdictional police have
complied the mandatory provisions of Section 134(c)
and S.158(6) of the M.V. Act in furnishing the better
particulars. Further, contended that, the
compensation claimed by the petitioners is highly
excessive, exorbitant and exaggerated. With all these
8 SCCH-18 MVC 1138/2015
main grounds, prayed to dismiss the petition,
against the respondent No.2.
8. On the basis of the rival pleadings of both
the parties, for final determination of this case, my
predecessor in office had framed the following issues:
*ISSUES*
1) Whether the petitioners prove
that, Shri Sanjeev Shriyana, son of
Suranna Pujari died due to the
injuries sustained by him in a motor
vehicle accident that was taken place
on 15.1.2015, at about 7.00 p.m.
near Rama Temple GKW Layout,
Peenya 2nd stage, Bengaluru
involving maxi cab bearing No.KA04
5252 belonging to respondent No.1
and the said vehicle was insured with
the respondent No.2 ?
2) Whether the petitioners prove
that, the accident has mainly
occurred due to rash and negligent
9 SCCH-18 MVC 1138/2015
driving of the driver of the said
vehicle?
3) Whether the petitioners prove
that, they are the only legal heirs and
dependents of deceased?
4) Whether the petitioners are
entitled for compensation as prayed
for? If so, at what rate? From whom?
5) What order or award?
9. In order In order to substantiate the case of
the petitioners, petitioner No.1 by name Baby
Shriyan, stepped in to witness box, and placed her
affidavit evidence, in lieu of examinationinchief,
who was examined as PW1 in the case on hand. At
the time of her evidence 19 documentary evidence got
marked as Ex.P1 to Ex.P19.
10. On the other hand, to prove the defenses of
the respondent No.2 had examined P.I. of Peenya
Traffic Police Station, Bengaluru as RW1. Further
examined Administrative Officer of Insurance
Company by name Kusuma K. as RW2. At the time
10 SCCH-18 MVC 1138/2015
of her evidence 2 documentary evidence got marked
as Ex.R1 & Ex.R2. After considering the case on
merits, and on appreciation of all the evidence
placed on record, my predecessor in office, came to
the conclusion to partly allowed the petition on
18.11.2015, directing the respondent No.1 to pay the
compensation amount determined by the court, and
the case against the respondent No.2 insurance
company was dismissed.
11. Subsequently being aggrieved by the
judgment and award passed by this court, the
respondent No.1, preferred miscellaneous case with
a prayer to set aside the judgment and award passed
by this court as per Misc., No.41/2021. The said
petition came to be allowed, subsequently for fresh
disposal, this case was taken on record. After service
of notice, the respondent No.1 had appeared and filed
written statement. In the written statement, he has
not seriously disputed the accident, and the death of
11 SCCH-18 MVC 1138/2015
Sanjeev Shriyana. It was contended that, the accident
had occurred due to the negligence on the part of the
deceased. Further contended that, the Maxi Cab
bearing No.KA045252, was insured with the
respondent No.2 and the policy was valid as on the
date of the accident. As such, he is not liable to pay
compensation to the petitioners. With all these main
grounds, prayed to dismiss the petition, against the
respondent No.1.
12. After filing the written statement, since the
issues were already framed by my predecessor,
additional issues were not framed, and the matter
was posted for further chief evidence of PW1. At that
time, PW1 present before the court and submitted no
further chief evidence from the side of the petitioner.
After crossexamination of PW1 the respondent No.1
was presents before the court and filed affidavit in
lieu of examinationinchief who examined as RW3.
At the time of his evidence, documentary evidence
12 SCCH-18 MVC 1138/2015
placed by him marked as Ex.R3 to Ex.R9. After cross
examination of RW3, summons was issued to RW1
and RW2 in order to crossexamine the said
witnesses, with respect to the subsequent event. It is
also to be noted that, inspite of taking several steps
the RW1 and RW2 were not appeared before the
court, as such, respondent side submitted no further
evidence to lead. Thereafter, the respondent No.2
filed two necessary applications to recall the RW3 for
the purpose of crossexamination and the same was
allowed. And after completion of the evidence of
RW3, the learned counsel for the respondent No.2
submitted no further evidence. Thereafter, matter
was set down for arguments.
13. Heard the arguments of both the counsel.
On appreciation of the evidence placed by the
petitioners, I proceed to give my findings on the
aforesaid issues as follows:
Issue No.1: In the Affirmative.
13 SCCH-18 MVC 1138/2015
Issue No.2: In the Affirmative.
Issue No.3: In the Affirmative.
Issue No.4: Partly in the Affirmative.
Issue No.5: As per final order,
for the following:
R E A S O N S
ISSUE NUMBER. 1 TO 3:
14. These THREE issues are interconnected
with each other. Hence, taken together for common
discussion, in order to avoid the repetition.
15. It is the specific case of the petitioners that,
due to the actionable negligence on the part of the
driver of the offending vehicle Maxi Cab bearing
registration No.KA045252, alleged accident had
taken place. Consequently, wife of the petitioner
No.1, children of the petitioner No.2 to 5 and son of
the petitioner No.6 by name Shri Sanjeev Shriyana
had died. As such, the petitioners being the legal
heirs of the deceased have filed the claim petition for
consideration.
14 SCCH-18 MVC 1138/2015
16. On the other hand, both the respondents
though not denied the accident and death of Shri
Sanjeev Shriyana son of Suranna Pujari, strongly
denied the allegation of the actionable negligence on
the part of the driver of the offending vehicle. Hence,
let me to discuss the evidence available on record in
order to come to the proper conclusion in connection
with the above issues.
17. Onus probandi is on the petitioner to prove
the above issues, on the touch stone of
preponderance of probabilities. First of all, to prove
the relationship between the petitioners and the
deceased had placed notarised copy of voter I.D.,
Aadhar card and ration card as per Ex.P7 to Ex.P13
and Ex.P19. The said documents remained
unquestioned by the other side. Since the
relationship between the deceased and the
petitioners, is not seriously disputed herein, more
discussions on the said document is not required.
15 SCCH-18 MVC 1138/2015
18. Another aspect is for consideration is in
connection with the rash and negligent driving of the
driver of the offending vehicle is concerned, to
discharge the burden lies on the petitioner, relied on
the evidence of Smt.Baby Shriyan, the said witness
on her behalf and also on behalf of other petitioners
being the wife of the deceased, filed affidavit evidence
wherein, she reiterated the main petition averments
in connection with the nexus between the accident
and the death of her husband, due to the actionable
negligence on the part of the driver of the offending
vehicle.
19. In connection with the above issues, on
the point of negligence Ex.P1 to Ex.P6 are the
material documents for consideration. On taking
birds eye view towards the documentary evidence
reveal that on the basis of first information given by
one Santhosh Kumar, who is the relative of the
deceased criminal law set in motion against the
16 SCCH-18 MVC 1138/2015
driver of the offending vehicle alleging that, he has
committed the offences punishable under section 279
and 337 of IPC. In the recitals of the complaint,
there is clear mention about the involvement of the
offending vehicle in the accident. The complainant is
none other than the eye witness to the accident as
per the recitals of the complaint.
20. Another document, spot mahazar marked
at Ex.P2 executed in presence of punch witnesses
also reflect about the involvement of the offending
vehicle in the accident, which caused the accident.
As per the report of the motor vehicle inspector
marked at Ex.P4 accident was not due to any
mechanical defects of the vehicle involved in the
accident, and no visible damages found in connection
with the said document. Another document Ex.P3 is
the spot sketch, the narration made in the said
sketch, discloses about the negligence on the part of
the driver of the offending vehicle, which caused
17 SCCH-18 MVC 1138/2015
accident and death of the deceased. Apart from this,
P.M. report placed by the petitioners goes to show
that, on the history of RTA, the husband of the
petitioner had succumbed to the injuries, and on
that back ground corpus was referred for
examination.
21. Ultimately on going through the charge
sheet submitted by the investigation officer reveals
that, after due investigation process, final report was
submitted by the driver of the offending vehicle
alleging that, he has committed the offences
punishable under section 279 and 304(A) of IPC
and also under section 134(A) & (B), 187 3(1), 181,
5, 180, 56 and 192 of M.V. Act. In column No.17 of
the charge sheet, it is forthcoming that, at the time of
accident, the maxi cab was not having valid permit,
fitness certificate and the driver of the said vehicle
was not having valid and effective driving license to
drive the said car.
18 SCCH-18 MVC 1138/2015
22. On the other hand, the administrative
officer of the respondent company, at the time of
evidence reiterated the contentions forthcoming in
the written statement. The said witness examined as
RW2. Apart from this, placed the evidence of RW1
Shri B.Raju investigation officer of Cr.No.7/2015. In
the evidence of said witness stated that, he
conducted part investigation process, and filed final
report. It was mainly stressed that, the driver of the
offending vehicle had no D.L, as on the date of the
accident. Except this, no other evidence is
forthcoming in answer to the allegation of actionable
negligence on the part of the driver of the offending
vehicle.
23. In addition to this, as already discussed
above, subsequent to consideration of Misc., petition
the owner of the offending vehicle, the respondent
No.1 herein by name Puttaswamy placed his affidavit
evidence and examined as RW3. In the evidence of
19 SCCH-18 MVC 1138/2015
this witness stated that, at the time of accident his
vehicle was insured with the respondent No.2 and the
same was in force. Hence, he is not liable to pay
compensation. But he has not whispered anything
about the D.L. in answer to the defence of the
respondent No.2 to the effect that, as on the date of
the accident the driver of the offending vehicle had no
valid and effective driving licence, thereby violated the
terms and conditions of the insurance policy. In
support of the defences forthcoming in the evidence
of RW3, placed the certified copy of judgment passed
in CC No.12286/15, spot sketch, complaint notarised
copy of the insurance policy Aadhar cards for
consideration. At the time of crossexamination of
this witness, he admitted that, in the criminal
proceedings he has not stated that, his vehicle is not
involved in the accident and also admitted the
suggestion that, the driver of the offending vehicle or
he being the owner of the offending vehicle gave
20 SCCH-18 MVC 1138/2015
complaint with respect to the accident and also
stated that, he received the offending vehicle to the
interim custody. Further he admitted that, final
report has been submitted against the driver of the
offending vehicle. During the course of his further
crossexamination, admitted that, he is the owner of
the offending vehicle and at present the said vehicle
is not available with him as the said vehicle was
forfeited by the Divya Finance Company of
Nelamangala, in order to recover the due amount. In
para No.2 of his crossexamination, stated that, at
the time of accident one Sathish was the driver of the
said vehicle, and though he denied the suggestion
that, the driver had no D.L. at the time of accident, to
show that, the driver had driving licence, as on the
date of the accident, either this witness or the driver
of the offending vehicle have not made an effort to
produce the said document to falsify the evidence of
the RW1, as well as the contention of the respondent
21 SCCH-18 MVC 1138/2015
No.2 forthcoming in the written statement. Mere
statement that, the driver of the offending vehicle had
driving licence is not enough for consideration in the
absence of the said material document. As already
discussed above, RW1 during the course of his
evidence clearly stated that, at the time of accident,
driver had no valid driving licence, as such he filed
final report against both the driver and owner of the
offending vehicle for the offences punishable under
section 5 R/W Sec. 180 and Section 56 R/W
Section 192 of M.V. Act along with the provision
of IPC.
24. At the time of crossexamination of PW1,
nothing worthwhile is elicited from his mouth to
disbelieve the allegation of actionable negligence on
the part of the driver of the offending vehicle, to
cause accident and its consequences. Though in the
criminal case judgment, marked at Ex.R3, the
accused was acquitted. On evaluation of the entire
22 SCCH-18 MVC 1138/2015
judgment, it is crystal clear that, in the said case, the
prosecution has failed to prove the alleged offences
against the accused beyond all reasonable doubt and
the witnesses were not given proper evidence in
consonance with the documentary evidence. As
such, the judgment of the criminal court is not
substantive piece of evidence to consider the claim
petition in the case on hand. Though the respondent
No.1 & 2 have placed their respective evidence, no
cogent and acceptable evidence is available on record
to disprove the actionable negligence on the part of
the driver of the offending vehicle to cause accident
and its consequences. All the police papers relied on
by the petitioners remained unchalleged, and no
suspicious circumstances to say that, the petitioners
have engineered the documentary evidence, for the
purpose of the case.
25. Over all appreciation of evidence placed on
record, I am of the view that, the petitioners have
23 SCCH-18 MVC 1138/2015
placed satisfactory evidence to prove the above
issues, which remained unshaken by the other side.
In the light of the discussions held above, without
making much discussion on the point of rash and
negligent driving, I hold that, the accident was
occurred purely on the part of the negligence of the
driver of the offending vehicle Maxi Cab bearing
registration No.KA045252. And in the said
accident, Sanjeev Shriyana had died. And the
petitioners are the legal heirs of the deceased.
Accordingly, I am of the view that, the petitioners
have placed satisfactory materials on record, to prove
the aforesaid issues. Resultantly, I am answering the
Issue Nos.1 to 3 are in the Affirmative.
ISSUE No.4:
26. Now coming to the point of quantum of
compensation for which, the petitioners are entitled
is concerned, every legal representative who suffers on
account of the death of a person, due to a motor vehicle
24 SCCH-18 MVC 1138/2015
accident, should have remedy for realization of
compensation. Since in the death case, the legal heirs are
the claimants. In the case on hand, the relationship of
deceased with the petitioners is not in dispute. The
petitioners have placed election ID card and Aadhar
cards as per Ex.P7 to Ex.P13. The said documents
remained undisputed by the other side. As such, the
relationship between the petitioners and the deceased
is not disputed point in issue, in the case on hand.
27. Another aspect to be considered herein
that, on going through the age particulars of the
petitioners, mentioned in the cause title of the
petition, reflected that, the petitioner No.1, in her
young age, lost her husband, and the petitioner No.2
to 5 have lost their father and love and affection of
their father in their early age and the petitioner No.6
has lost his son in his old age. On the other hand,
the respondents herein, have not produced
documents on record, to show the independent
25 SCCH-18 MVC 1138/2015
economic status of the petitioners. And to disprove
their dependency, with the deceased during his life
time. By taking into consideration of all these factors,
along with the evidence of PW1, it is crystal clear
that, the petitioners were the dependents to the
deceased during his lifetime.
28. To substantiate the case of the petitioners
herein, to prove the actual age of the deceased, as on
the date of the accident, petitioners have not placed
any documents. On going through P.M. report
marked at Ex.P5 reveals that the age of the deceased
was 61 years as on the date of accident. If the said
document is taken into consideration as on the date
of the accident, deceased Sanjeev Shriyana, was
aged about 61 years. And the said document,
remained unquestioned by the other side. Hence I
am of the view that, as on the date of the accident
deceased was aged about 61 years. For his age,
26 SCCH-18 MVC 1138/2015
multiplier '7' is applicable as per the ratio in "Sarala
Verma" Case.
29. In connection with the work of the
deceased, in the main petition and also in the
evidence of PW1 stated that, he was running bakery
and getting an income of Rs.30,000/ per month. In
this regard, the petitioners have produced Ex.P14
licence and Ex.P15 & Ex.P16 receipts for having paid
the fee to run the bakery. But there is no iota of
documents for the income of the deceased. In such a
situation, as per law, court has to assess the notional
income of the deceased prior to the date of the
accident by looking into the entire facts and
circumstances of the case. And also by looking in to
the year of the accident. Accordingly, it is apt to
consider the notional income of the deceased, by
looking in to the recent chart of the legal services
authority, in order to come to the fair conclusion.
Hence, the income of the deceased is apt to be taken
27 SCCH-18 MVC 1138/2015
as Rs.9,000/ p.m., which will meet the ends of
justice.
30. Another point to be taken in to
consideration herein that, as per the petition, 6
persons were depending on the earning of the
deceased. In this regard, about the deduction of the
personal and living expenses is concerned, the
principle laid down by the Honourable Supreme
Court in Sarala Verma Case at para No.14 is to be
considered.
31. Apart from this, it is also relevant to
discuss, that the Honourable Supreme Court in the
decision reported in,
2018 SAR (Civil) 81. National Insurance
Company Limited V/s Pranay Sethi and
others,
" It was observed that, "While determining the
income, an addition of 50 per cent of actual salary
to the income of the deceased towards future
28 SCCH-18 MVC 1138/2015
prospects, where the deceased had a permanent job
and was below the age of 40 years, should be made.
The addition should be 30 per cent, if the age of the
deceased was between 40 and 50 years. In case the
deceased was between the age of 50 and 60 years,
the addition should be 15 per cent. Actual salary
should be read as actual salary less tax. In case the
deceased was selfemployed or on a fixed salary, an
addition of 40 per cent of the established income
should be the warrant where the deceased was below
the age of 40 year. An addition of 25 per cent where
the deceased was between the age of 40 to 50 years.
An addition of 25 per cent where the deceased was
between the age of 40 and 50 years and 10 per cent
where the deceased was between the age of 5060
years should be regarded as the necessary method
of computation. The established income means the
income minus the tax component. "
32. Having considered the above as per law laid
down in the above case, in connection with the
deduction of personal and living expenses is
concerned, it is settled that, "where the deceased was
29 SCCH-18 MVC 1138/2015
married, the deduction towards personal and living expenses of
the deceased should be one third (1/3rd) where the number of
dependent family members is 2 to 3, 1/4th where the number of
dependent family member is 4 to 6 and one fifth (1/5 th ) where
the number of the dependant family members exceeds six." In
the light of the above proposition, in the case on
hand, 1/4th has to be deducted towards personal
and living expenses out of the total compensation.
In the present case, deceased was aged about 61
years, as on the date of the accident. For this age
multiplier "7" is applicable. And by relying on the
aforesaid principle laid down in the Pranay Sethi's
case with respect to the age of the deceased and also
on going through the nature of the occupation
forthcoming in the petition averments, it is evident
that, the deceased herein is not having permanent
job and accurate income for consideration. since as
on the date of the accident the deceased was aged
about 61 years as per the records, question of
30 SCCH-18 MVC 1138/2015
considering the loss of future prospects does not
arise at all. Therefore, by considering the earning of
the deceased as Rs.9,000/ per month. And
Rs.1,08,000/ per year. And 1/4th has to be
deducted towards personal and living expenses in
the income of the deceased. Thus net loss income
comes to Rs.81,000/ (Rs.1,08,000Rs.27,000). This
income has to be multiplied by multiplier "7".
Which comes to Rs.5,67,000/.
33. Apart from this, aspect, in connection with
the loss of estate, consortium, and with respect to the
funeral expenses, to calculate the quantum of the
compensation under the aforesaid heads, it is
relevant to note herein the following authority,
2018 SAR (Civil) 81. National Insurance
Company Limited. V/s Pranay Sethi and
others,
31 SCCH-18 MVC 1138/2015
The Hon'ble Apex Court discussed various aspects
in connection with the claim petition filed by the
claimants for compensation. And also observed
that while determining the claim petition, the
reasonable figures on conventional heads, viz.,
loss of estate, loss of consortium and funeral
expenses should be Rs.15,000/, Rs.40,000/ and
Rs.15,000/ respectively. The aforesaid amount
should be enhanced at the rate of 10% in every
three years.
34. In the light of the proposition laid down in
the aforesaid case, I am of the view that, In addition
to this the petitioner No.1 being the wife of the
deceased, the petitioner No.2 to 4 are the children of
the deceased, the petitioner No.5 being the mother of
the deceased, are entitled for sum of Rs.40,000/ in
the head of loss of consortium. Further, the
petitioners are also entitled for sum of Rs.15,000/
towards funeral expenses. And also the petitioners
are entitled for sum of Rs.15,000/ in the head of
32 SCCH-18 MVC 1138/2015
loss to the estate. Further the petitioners are entitled
for Rs.10,000/ towards transportation of dead body.
Apart from this, it is to be noted that, in Pranay
Sethis case, the Honourable Apex court, observed
that, after expiry of every three years, from the date of
judgment, 10% is to be added to Rs.70,000/
towards conventional heads. Which comes to
Rs.7,000/. Hence, the claimants are entitled for
Rs.77,000/ towards conventional heads.
35. Considering the above facts and
circumstances of the case and for the above reason, I
am of the opinion that, the petitioners are entitled for
total compensation under the following heads.
Compensation heads Compensation
Amount
Towards loss of Rs.5,67,00000
dependency
Towards loss of Rs. 44,00000
consortium
Towards loss of estate Rs. 16,50000
Towards funeral Rs. 16,50000
&obsequies ceremony
expenses
33 SCCH-18 MVC 1138/2015
Towards transportation Rs. 10,00000
of dead body
Total Rs.6,54,00000
36. Accordingly, the petitioners herein are
entitled to get total compensation of Rs.6,54,000/
(Rupees six lakhs fifty four thousand only), along
with the interest at the rate of 6% per annum, as per
the proposition laid down by the Honourable High
court of Karnataka in MFA No. 103557/2016,
Between Sri Ram General Insurance Company Limited
V/S. Lakshmi And Others dated. 20.03.2018. And MFA
No.30131/2019 dated.12.5.2020.
LIABILITY:
37. As regards the liability is concerned, it is
not disputed that, as on the date of the accident
insurance policy pertaining to the offending vehicle
was in force. It was valid from 21.2.2014 to
20.2.2015. Alleged accident had taken place on
15.1.2015. But, in connection with the assertion of
34 SCCH-18 MVC 1138/2015
the respondent No.2 company that, the driver of the
offending vehicle had no valid and effective driving
licence as on the date of the accident is concerned,
either the petitioner or the respondent No.1 or the
driver of the offending vehicle were not made an effort
to produce the driving licence to show that at the
time of accident the driver of the offending vehicle
had valid driving licence. In such a situation, the
owner of the offending vehicle cannot escape from its
liability to pay compensation to the petitioners.
38. At the same time, in connection with the
payment of compensation determined by the court to
the third party, who is the victim of alleged accident,
the proposition laid down by the Hon'ble Apex court
and our own Hon'ble High Court of Karnataka, is
necessary to note herein.
1) 2004 (3) SCC 297 between National
Insurance Co.Ltd., Vs. Swaran Singh & Others
35 SCCH-18 MVC 1138/2015
In the aforesaid case, with due discussions the Hon'ble
Apex Court came to the conclusion that, the insurer has
satisfactorily proved its defence in accordance with the provision
of Section 149(2) R/W Subsection 7, as interpreted by the court.
And the Tribunal can direct the insurer liable to be reimbursed
by the insured for the compensation amount, which has been
compared to pay to the third party under the award of the
Tribunal. In one word it is necessary to note that, through this
authority, highlighted about the concept pay and recovery.
2) 2018 SCC 208 between Pappu & Others
Vs. Vinod Kumar Lamba & Another
In the aforesaid case it was observed that, where on
adjudication of claim under the Act, the Tribunal arise at a
conclusion that, the insurer has satisfactorily proved its defence
in accordance with law with the provision of Section 149(2) R/W
Subsection 7, the Tribunal can direct that, the insurer is liable
to be reimbursed by the insured for the compensation and other
amount which it has been compelled to pay to the third party
under the award of the Tribunal. In the aforesaid case also,
highlighted about the principle of pay and recovery.
36 SCCH-18 MVC 1138/2015
3) 2018 (9) SCC 650 between Shamanna &
Another Vs. Divisional Manager, Oriental
Insurance Co. Ltd., & Others
"In para No.5 of the aforesaid judgment, on detailed
discussion with respect to the third party risk the doctrine of
pay and recover was considered by following the judgment of
Hon'ble Apex Court in Swaran Singh case."
4). MFA No.8422/2018 dated 30.9.2021
between Smt.Thulasi Ramesh & Others Vs.
Regional Manager & Others
" In the aforesaid recent judgment our own Hon'ble High
Court of Karnataka observed that, if the driver of the offending
vehicle did not possess a valid driving licence, the insurer is
liable to satisfy the award with a liberty to recover the same from
the owner of the vehicle."
39. In the light of the prepositions laid down in
the aforesaid cases, it is relevant to note that, the
doctrine of pay and recover has been considered by
the Hon'ble Apex Court in Swaran Singh's Case and
in Pappu's case. And the said judgments of the
37 SCCH-18 MVC 1138/2015
Honourable Apex Court has not been over ruled till
today, and the propositions laid down in the said
judgments, remained intact and the said judgments
till today are in force. Hence, to protect the interest
of third party, it is apt in the case on hand, to follow
the doctrine of pay and recover. Since as per Article
12 of the Constitution of India, company also comes
under the concept of State. It is the duty of the State
to protect the interest of the third party.
40. In the light of the authority relied on by the
learned counsel for the petitioner reported in Amruth
Paul Singh and Another Vs. TATA AIG General
Insurance Company Limited and others, it was
observed that, "insurer though liable to pay compensation to
claimants, but entitle to recover the same from owner and
driver."
41. In Kurvan Ansari @ Kurvan Ali Vs. Sham
Kishore Murmu and another, it was observed that,
"the entire compensation shall be paid to the appellants by the
38 SCCH-18 MVC 1138/2015
insurance company and recover the same from the owner of the
offending vehicle by initiating appropriate proceedings."
42. On the other hand, the learned counsel for
the respondent N.2 also relied on two authorities
reported in 2004 (13) 224 between Oriental
Insurance company Limited Vs. Anjappan &
Others. In this case, in para No.8 of the judgment, it
was observed that, "court ordering to pay the compensation
and in connection with the right of insurance company to
recover from the insured in connection with the mode of
recovery held, insurance company could recover the same from
the insured by initiating a proceeding before the executing court
without being required to file a separate suit and further
conditions and safeguards to be made in this regard the
executing court shall pass appropriate orders in accordance with
law as to the manner in which the insured owner of the vehicle
shall make payment to the insurer. In the case, there is any
default, it shall be open to the executing court, to direct
realisation by disposal of the securities to be furnished or from
any other property or properties of the owner of the vehicle, that
of the insured."
39 SCCH-18 MVC 1138/2015
43. In another authority reported in 2007 (I)
TAC 20 between Smt. Bhuri & Others Vs.
Shobharani & Others. In this case in para No.5 & 6
of the judgment, it was observed that, " court has to
direct realisation of the amount from the owner by disposal of
security or from any other property or properties of the owner of
the vehicle while the insurer recovering the compensation
amount from the owner of the vehicle."
44. On going through the propositions laid down in
the authorities relied on by the learned counsel for
petitioners and the respondent No.2, it is crystal clear
that, in the claim petition, the court has to see the
interest of the claimants whose welfare is the
supreme. For that purpose, concept of pay and
recovery arose. At the same time, when the liability
to pay compensation is on the owner of the offending
vehicle, he cannot escape from his liability to pay the
compensation amount determined by the court, but
in connection with obtaining of security for recovery
40 SCCH-18 MVC 1138/2015
of the said amount, the insurance company is not
precluded to insert schedule in the execution petition
with respect to the property particulars of the owner
of the offending vehicle for recovery of the
compensation amount. At this stage, no materials
available for taking of security from the property or
properties of the owner. As such, it is not apt to
make necessary direction in this regard. That
procedure has to be followed through due process of
law, by getting proper materials as security, during
the execution proceedings.
45. In the light of my detailed discussion held
above, I am of the view that, though the respondent
No.1 being the owner of the offending vehicle cannot
escape from his liability to pay compensation to the
petitioner, in view of violation of terms and conditions
of the policy. But, to protect the interest of the third
party, it is necessary to direct the respondent No.2
being the insurance company to pay compensation to
41 SCCH-18 MVC 1138/2015
the petitioner and thereafter to recover the same from
the respondent No.1 being owner of the offending
vehicle, through due process of law. Hence, I am
answering the issue No.4 is in partly affirmative.
ISSUE NO.5:
46. In view of my due discussions on issue
Nos.1 & 2, I proceed to pass the following;
O R D E R
The claim petition filed by the petitioners U/S 166 of MV Act is hereby partly allowed with costs.
The petitioners are entitled for compensation of Rs.6,54,000/ (Rupees six lakhs fifty four thousand only), along with the interest at the rate of 6% per annum, from the date of petition till the date of deposit.
42 SCCH-18 MVC 1138/2015
The respondent No.2 being the insurance company, is liable to pay the compensation determined by this court, with interest at 6% p.a. from the date of petition till its realization within two months from the date of this order, thereafter, recover the same, from the respondent No.1, who is the owner of the vehicle.
Out of the compensation amount awarded to the petitioners together with interest, the petitioner No.1 is entitled the share of 50%. And the petitioner No.2 & 3 are entitled the share of 5% each, the petitioner No.4 & 5 are entitled for share of 15% each, and the petitioner No.6 is entitled for the share of 10%, out of the total award amount.
43 SCCH-18 MVC 1138/2015
After deposit of the compensation amount together with interest, the petitioner No.1, 4 & 5, shall deposit 40% out of their share, in any Nationalized/Scheduled bank of their choice, for a period of 3 years. And remaining 60% shall be released to them through due process of law.
With respect to the share of the petitioner No.2, 3 & 6, since the award amount is very meagre, entire amount shall be released to the them without any further proceedings.
Advocate fee is fixed at Rs.500/ . Draw award accordingly.
(*Dictated to the stenographer directly on computer, corrected by me and then pronounced in open court on this the 30th day of November 2022*) (V.NAGAMANI) III ADDL.SMALL CAUSES JUDGE & ACMM, BANGALORE.
44 SCCH-18 MVC 1138/2015ANNEXURE List of witnesses examined on petitioners' side:
PW1 Smt.Baby Shriyan List of documents exhibited on petitioners' side:
Ex.P1 True copy of FIR with complaint Ex.P2 True copy of Spot mahazar Ex.P3 True copy of Spot Sketch Ex.P4 True copy of IMV report Ex.P5 True copy of P.M. report Ex.P6 True copy of charge sheet Ex.P7 Notarised copy of election ID card of petitioner No.6 Ex.P8 Notarised copy of election ID card of petitioner No.1 Ex.P9 Notarised copy of election ID card of petitioner No.3 Ex.P10 Notarised copy of election ID card petitioner No.4 Ex.P11 Notarised copy of Aadhar card of petitioner No.5 Ex.P12 Notarised copy of Aadhar card of petitioner No.2 Ex.P13 Ration card Ex.P14 General licence Ex.P15 Receipt Ex.P16 Receipt Ex.P17 Certificate issued by Weights and Measures Department Ex.P18 Referral letter Ex.P19 Notarised copy of election card of petitioner No.6 45 SCCH-18 MVC 1138/2015 List of witnesses examined on respondents' side:
RW1 Shri B.Raju RW2 Smt. Kusuma K. RW3 Shri A.Puttaswamy
List of documents exhibited on respondents' side:
Ex.R1 Letter
Ex.R2 Insurance policy
Ex.R3 Certified copy of order in CC
12286/2015
Ex.R4 Copy of Spot Sketch
Ex.R5 Copy of complaint
Ex.R6 & Notarised copies of insurance policy
Ex.R7
Ex.R8 Acknowledgement pertaining to the
Aadhar card
Ex.R9 Notarised copy of Aadhar card
III ADDL.SMALL CAUSES JUDGE & ACMM, Bengaluru.