Bangalore District Court
2 & 3 Are Minors vs No.2 on 5 November, 2016
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 5th day of November, 2016.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com.,LL.B.(Spl.),L.L.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C.No.3057/2015
1. Smt. Anita. K.G., ..... PETITIONERS
Aged about 39 years,
W/o. Late Devraj. T.J.
2. D. Dayananda,
13 years,
S/o. Late Devraj. T.J.
3. D. Puneeth,
9 years,
S/o Late Devraj. T.J.
Petitioners 2 & 3 are minors,
Representing by their mother
& natural guardian,
Smt. Anitha. T.G.,
39 years, 1st Petitioner.
All are residing at;
No.5/B, Janatha Colony,
Bommasandra,
Anekal Tq,
Bangalore South -560099.
4. Smt. Mahadevamma,
SCCH-7 2 M.V.C.No.3057/2015
Aged about 58 years,
W/o. Sri. A.D. Jayappa.,
F/o. Late Devraj. T.J.,
5. Sri. A.D. Jayappa,
70 years,
S/o. Late Lakshmappa,
F/o. Late Devraj. A.J.
Both are residing at No.587,
Shivakumar Extn.,
Nittuvalli (v),
Davanagere.
(By Smt. S. Malathi, Adv.,)
V/s
1. Sri. Saravana. P., ..... RESPONDENTS
S/o, V. Palani,
No.334/1, 1st cross,
Shivaji Road,
Shivajinagar,
Bangalore-51.
(Owner of TATA ACE No.KA-03-AA-4350)
2.The ICICI Lombard Gen., Ins.,
Co., Ltd.,
No.89, SVR Complex,
4th Floor, Madivala,
Hosur Main Road,
Bangalore-560 068.
By its Manager.
(R-1 Exparte)
(R-2 By Sri. H.N. Keshava Prashanth,
Adv.,)
SCCH-7 3 M.V.C.No.3057/2015
JUDGMENT
The Petitioners No.1 to 5 have filed the present petition as against the Respondents No.1 and 2 under Section 166 of the Motor Vehicles Act, 1989, praying to award compensation of Rupees 1,00,00,000/- in respect of death of Sri. Devaraj T.J. @ Devaraju. T.J. S/o. Sri. A.D. Jayappa.
2. The brief averments of the Petitioners' case are as follows;
a) They are claiming the following special damages;
i) Expenses incurred on medicine, Rs. 1,50,000/-
nourished food, conveyance, etc.,
ii) Services rendered by relations Rs. 20,000/-
iii) Transportation of dead body Rs. 10,000/-
iv) Obsequies ceremony Rs. 60,000/-
b) On 19.5.2015 at about 8:00 p.m., near Bommasandra,
Bangalore, one Mr. Devraj @ Devaraju. T.J., riding Motor Cycle bearing Registration No.KA-04-EL-6971 and proceeding from Bangalore side towards his house slowly, cautiously and maintaining on the discipline lane. At that time, one TATA ACE bearing Registration No.KA-03-AA-4350 came from Chandapura SCCH-7 4 M.V.C.No.3057/2015 in a rash and negligent manner with excessive speed and dashed against the Motor Cycle and caused the accident. With the effect, the rider of the Motor Cycle sustained fatal injuries.
c) Immediately after the accident, Devaraju.T.J. was shifted to Sparsha Hospital for first-aid treatment and thereafter, he was shifted to Nimhans Hospital and finally, he was shifted to Abhaya Hospital, Bangalore. Mr. Devaraju died on 20.05.2015 at about 12:30 p.m. during the course of treatment. The accident occurred only due to the rash and negligent driving of the driver of the TATA ACE bearing Registration No.KA-03-AA-4350. P.M. conducted at Victoria Hospital, Bangalore.
d) Prior to the accident, the deceased Devaraju.T.J. was hale and healthy and aged about 39 years and he was a Class-1, Government Electrical Contractor and running Raghavendra Electricals at Bommasandra Industrial Area, Bangalore and was earning Rupees 70,000/- per month. If Devaraj T.J. is alive, they would have been enjoy with high status and economic position.
e) With the death of Devaraju.T.J., they are lost the bright future and enjoyment, love and affection, moral and social support. They are fully dependents on the earnings of the deceased Devaraju. T.J. Hence, this petition.
3. Though the notice was duly served on the Respondent No.1 through paper publication, he was remained absent and hence, he is placed as exparte on 02.11.2015.
SCCH-7 5 M.V.C.No.3057/20154. Initially, though the notice was duly served on the Respondent No.2, it was remained absent and hence, it was placed as exparte on 20.09.2015. Later, the Respondent No.2 has appeared before this Tribunal through its Learned Counsel and as per the Order dated 21.12.2015 passed on I.A.No.II, the exparte order is set-aside and the Respondent No.2 is taken on file. But, initially, inspite of giving sufficient opportunities, the Respondent No.2 had not filed the written statement. Later, as per the Order dated 20.04.2016 passed on I.A.No.III, the written statement filed by the Respondent No.2 is taken on file.
5. The Respondent No.2 inter-alia denying the entire case of the Petitioners, has further contended as follows;
a) The petition is not maintainable either on facts are in law as against it. Hence, the petition is liable to be dismissed in limini with costs as against it.
b) It is true that, it has issued the policy in respect of the TATA ACE bearing Registration No.KA-03-AA-4350, but, the original copy of the policy is in the possession and control of the Respondent No.1. It is hereby calls upon the Respondent No.1 to produce the original policy issued in respect of the TATA ACE bearing Registration No.KA-03-AA-4350 before this Hon'ble Court and the liability of it, is limited to the terms and conditions of the policy of insurance issued.
SCCH-7 6 M.V.C.No.3057/2015c) The person driving the vehicle has "no relation in force"
as on the date of accident to drive the vehicle.
d) The driver of the vehicle has no valid and effective driving licence at the time accident. The vehicle involved in the accident is a Transport vehicle and hence, specific endorsement is required to drive the particular class of vehicle. But, in the case on hand, the driver has no licence to drive the transport vehicle and the owner has entrusted the vehicle to a person, who has no valid licence and hence, this is a willful breach of policy condition by the insured and hence, it is not liable to pay any compensation and the petition against it is liable to be dismissed.
e) The TATA ACE bearing Registration No.KA-03-AA-4350 was used without having valid permit and fitness certificate and using the vehicle without valid permit and fitness certificate is a clear violation of the policy conditions and as per the documents available, the Fitness certificate was lapsed much earlier to the accident and the same was not renewed and hence, it is not liable to pay any compensation and the petition against it, is liable to be dismissed.
f) It seeks protection under Sections 147 and 149 of M.V. Act.
g) As per Section 134(c) of M.V. Act, 1988, it is mandatory duty of the owner of the vehicle to furnish the particulars of policy, date, time and place of accident, particulars SCCH-7 7 M.V.C.No.3057/2015 of injured and the name of the driver and particulars of the driving licence, but, the insured has not complied with statutory demands.
h) If the claimants are able to prove that, the insured TATA ACE bearing Registration No.KA-03-AA-4350 was involved in the alleged accident, then, the accident in question has not occurred due to the rash and negligent driving of the said vehicle and the TATA ACE was being driven by its driver very slowly, carefully and cautiously on the correct side of the road. The unfortunate accident occurred only on account of the rash and negligent riding of the Motor Cycle by the deceased and as per the available information, the deceased was riding the Motor Cycle in an uncontrolled manner and lost the control over the vehicle and dashed against the TATA ACE and hence, it is clear that, the deceased was solely responsible for the cause of accident and hence, it is not liable to pay any compensation and the petition as against it, is liable to be dismissed.
i) The instant petition filed by the Petitioner is false, malicious, incorrect and malafide and is nothing, but, an abuse of the process of the law and it is an attempt to waste the precious time of this Hon'ble Forum, as, the same has been filed by the Petitioners demand. Hence, it is not liable to pay any compensation and the case is liable to be dismissed as against it for non-compliance of statutory demand.SCCH-7 8 M.V.C.No.3057/2015
j) The Petitioners are not entitled to claim any interest on non-pecuniary damages as per the Judgment reported in 1995 ACJ (1) page 366.
k) It craves leave of this Hon'ble Court to take all defences available to the 1st Respondent under Section170 of M.V. Act and contest the case on all the grounds apart from those specified under Section 149(2) of M.V. Act, in case, the 1st Respondent remains exparte or colluded with the claimants.
l) It craves the leave of this Hon'ble Court to file an additional counter at a later stage as and when the better particulars come to its knowledge.
m) Without prejudice to the above contentions, the amount of Rupees 1,00,00,000/- with interest and cost claimed by the Petitioners in the petition is more excessive, exorbitant and exaggerated.
n) Therefore, it prays that, this Hon'ble Court may be pleased to dismiss the present petition as against it with costs.
Else, it will be put to irreparable loss and injury.
6. Based on the above said pleadings, I have framed the following Issues;
SCCH-7 9 M.V.C.No.3057/2015ISSUES
1. Whether the Petitioners prove that, they are the dependents and legal representatives of deceased SRI.
DEVARAJ T.J. @ DEVARAJU T.J.?
2. Whether the Petitioners prove that, the accident occurred due to rash and negligent driving of the TATA Ace bearing Registration No.KA-03- AA-4350 by its driver and Sri. Devaraj. T.J. @ Devaraju T.J. died due to the injuries sustained in the accident?
3. Whether the Petitioners are entitled for compensation? If so, how much and from whom?
4. What Order?
7. In order to prove their case, the Petitioners have examined the Petitioner No.1 as P.W.1 by filing an affidavit as her examination-in-chief and have placed reliance upon Ex.P.1 to Ex.P.34. On the other hand, the Respondent No.2 has examined the Driver as R.W.1 by filing an affidavit as his examination-in- chief and has placed reliance upon Ex.R.1 to Ex.R.5.
8. Heard the arguments.
9. My answers to the above said Issues are as follows;
Issue No.1 : Partly in the Affirmative,
SCCH-7 10 M.V.C.No.3057/2015
Issue No.2 : In the Affirmative,
Issue No.3 : Partly in the Affirmative,
The Petitioners are
entitled for compensation
of Rupees 34,00,990/-
with interest at the rate of
9% p.a. from the date of
the petition till the date of
payment, from the
Respondent No.2.
Issue No.4 : As per the final Order,
for the following;
REASONS
10. ISSUE NO.1 :- The P.W.1, who is the Petitioner No.1 has stated in her examination-in-chief that, the Petitioner No.2 is her son aged about 13 years, the Petitioner No.3 is her second son, the Petitioner No.3 is her mother-in-law and the Petitioner No.4 is her father-in-law and they were preferred a claim petition for the compensation of the accidental death of her husband Late Devaraj. T.J. @ Devaraju. T.J. She has further stated that, due to severe head injury, her husband died on 20.05.2015 at about 12.30 p.m., during the course of treatment. She has further stated in her cross-examination that, the deceased Devaraj. T.J. is her husband. The Petitioners have produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.6 Inquest, Ex.P.7 Post Mortem Report, Ex.P.8 Charge Sheet, Ex.P.16 Ration Card, Ex.P.17 Aadhaar Card relating to deceased Devaraj, Ex.P.18 Aadhaar Card relating to SCCH-7 11 M.V.C.No.3057/2015 Anitha K.G., Ex.P.19 Aadhaar Card relating to Dayanand, Ex.P.20 Aadhaar Card relating to Puneeth, Ex.P.21 Election Identity Card relating to Mahadevamma, Ex.P.22 Election Identity Card relating to A.D. Jayappa, Ex.P.23 Copy of SSLC Marks Card relating to Devaraja T.J. and Ex.P.25 Driving Licence Relating to Devaraja. T.J. On perusal of the said oral evidence of P.W.1 as well as the contents of the said material documents, it is clearly goes to show that, the Petitioner No.1 is a wife, the Petitioners No.2 and 3 are minor sons, the Petitioner No.4 is a mother and the Petitioner No.5 is a father of the deceased Devaraj. T.J. @ Devaraju. T.J. S/o. A.D. Jayappa, who died on 20.05.2015 at 12.30 p.m. in Abhaya Hospital during the course of treatment to the accidental injuries, which was taken place on 19.05.2015 at 8.00 p.m., at Bommasandra, Bengaluru Road, Bengaluru, when he was riding the Motor Cycle bearing Registration No.KA-04-EL-6971, against which, the offending TATA ACE bearing Registration No.KA-03-AA- 4350 was dashed. Since, the Petitioner No.1 is a wife, the Petitioners No.2 and 3 are minor sons, the Petitioner No.4 is a mother and the Petitioner No.5 is a father of the said deceased, there are considered as legal representatives of the said deceased. But, based on the same, it cannot be said that, all the Petitioners are dependants upon the said deceased, as, admittedly, the Petitioner No.5 is a father of the deceased, who cannot be considered as a dependent upon the deceased son and further, the P.W.1 in her cross-examination has clearly stated that, her father- in-law is a retired Instructor and he is receiving pension. From this, it appears that, the Petitioner No.5, who is a father of deceased, is having his own income. No doubt, the P.W.1 in her SCCH-7 12 M.V.C.No.3057/2015 cross-examination has stated that, her in-laws have 4 children and out of them 3 sons and one daughter and they are residing along with her and also her brother-in-law. She has further admitted that, her in-laws are dependants upon the brother of her brother-in-law. But, based on the said evidence elicited from the mouth of P.W.1, it cannot be said that, the Petitioner No.4, who is a mother of deceased is also not a dependent upon the said deceased, as, the Petitioner No.4, who is the mother of deceased is not having independent income and the same has not been proved by the Respondent No.2 and the P.W.1 in her cross-examination has clearly stated that, her in-laws are residing along with her and also her brother-in-law. Therefore, the Petitioner No.1 being a wife, the Petitioners No.2 and 3 being minor sons and the Petitioner No.4 being a mother of deceased can be considered as the dependents upon the said deceased Devaraj. T.J. @ Devaraju. T.J. S/o. A.D. Jayappa. Accordingly, I answered Issue No.1 partly in the Affirmative.
11. ISSUE NO.2 :- The P.W.1 has stated that, on 19.05.2015 at about 8.00 p.m., on Bommasandra- Bengalur Road, Bengaluru, her husband Sri. Devaraju T.J. was riding the Motor Cycle bearing Registration No.KA-04-EL-6971 and proceeding from Bengaluru side towards their house, slowly, cautiously and maintaining on the discipline lane and at that time, one TATA ACE bearing Registration No.KA-03-AA-4350 came from opposite direction, i.e., Chandapura side in a rash and negligent manner with high speed and in a wrong side and dashed against the Motor Cycle and caused the accident. She has further stated that, with SCCH-7 13 M.V.C.No.3057/2015 the effect, her husband sustained fatal injuries and immediately after the accident, the public shifted him to Sparsh Hospital, Hosur Road, Bengaluru for first-aid treatment and thereafter, shifted him to Nimhans Hospital and after that, they shifted him to Abhaya Hospital, Bengaluru for further management and due to severe head injury, her husband died on 20.05.2015 at about 12.30 p.m. during the course of treatment. She has further stated that, the accident was occurred only due to the rash and negligent driving of the driver of the TATA ACE bearing Registration No.KA- 03-AA-4350 and the jurisdictional Police have charge sheeted as against the driver of TATA ACE.
12. No doubt, the Petitioners have not examined the eye witness to the accident in question to consider their case as well as to corroborate the oral evidence of P.W.1. Further, the P.W.1 is not an eye witness. In this regard, she has stated in her cross- examination that, she has not seen the accident. Further, the Respondent No.2 has examined the driver of the offending TATA ACE bearing Registration No.KA-03-AA-4350, as R.W.1, who has stated in his examination-in-chief that, on 19.05.2015, he was driving the TATA ACE bearing Registration No.KA-03-AA-4350 and he was coming from Chandapura towards Bangalore on the Service Road, at that time, the rider of the Motor Cycle bearing Registration No.KA-03-EL-6971 came from the opposite direction, i.e., Bangalore side towards Chandapura in a rash and negligent manner and dashed to his vehicle. He has further stated that, the said accident occurred only because of the rash and negligent riding of the Motor Cycle by the deceased and there was no SCCH-7 14 M.V.C.No.3057/2015 negligence on his part. He has further stated that, he was completely on the left side of the road and it is the deceased, who came to the wrong side and dashed to his vehicle and hence, the deceased is solely responsible for the cause of accident and he had valid driving licence to drive the TATA ACE. He has further stated that, since 20 years, he is doing driving work under Sharavana, i.e., the Respondent No.1 and at the time of accident, his driving licence was valid. The R.W.1 also produced Ex.R.2 Driving Licence relating to him.
13. But, based on the said grounds that, the Petitioners have not examined the eye witness of the accident in question in the present petition to consider their case and the P.W.1 has not seen the accident and based on the said oral evidence of R.W.1, who is a driver of offending TATA ACE bearing Registration No.KA- 03-AA-4350 and also he has having a valid and effective driving licence to drive such class of offending TATA ACE at the time of accident, it cannot be thrown away the above said oral evidence of P.W.1, which has been stated by her in the examination-in-chief and also it cannot be said that, there was no negligence on the part of the R.W.1 in the commission of the said road traffic accident while driving the offending TATA ACE bearing Registration No.KA-03-AA-4350 and the entire negligence is on the part of the deceased Sri. Devaraj R.J. @ Devaraju. T.J. in riding his Motor Cycle bearing Registration No.KA-04-EL-6971, as, to corroborate their case as well as the oral evidence of P.W.1, the Petitioners have produced Ex.P.1FIR, Ex.P.2 Complaint, Ex.P.3 Spot Panchanama, Ex.P.4 Spot Hand Sketch, Ex.P.5 MVI Report, SCCH-7 15 M.V.C.No.3057/2015 Ex.P.6 Inquest, Ex.P.7 P.M. Report, Ex.P.8 Charge Sheet, Ex.P.9 No Objection Certificate and Ex.P.25 Driving Licence relating to deceased Devaraja T.J. which clearly disclosed that, at the time of accident, the said deceased was having a valid and effective driving licence to ride such class of Motor Cycle and there was no negligence on the part of the deceased in the commission of the road traffic accident, but, the entire negligence is on the part of the R.W.1, who is a driver of the offending TATA ACE bearing Registration No.KA-03-AA-4350 and if he could have taken a little care while driving the offending TATA ACE at the time of accident, he could have avoided the said road traffic accident and could have saved the valuable life of the said deceased and in the said road traffic accident, the deceased had sustained severe grievous injuries and due to the said accidental injuries itself, he succumbed during the course of treatment in Abhaya Hospital on 20.05.2015 at 12.30 p.m., which is clear from the following discussion. Furthermore, the P.W.1 has clearly denied the suggestions put to her by the Respondent No.2 during the course of cross-examination that, the alleged accident was caused due to her deceased husband's negligence itself and not due to the negligence on the part of TATA ACE and it is falsely stated that, after accident, her deceased husband was shifted to Sparsh Hospital and thereafter, to NIMHANS Hospital and then, to Abhaya Hospital and the documents produced in the present petition are all created only to claim more compensation and though she has knowledge that, the alleged accident was taken place due to negligence on the part of her deceased husband, a false criminal case is registered as against the driver of the SCCH-7 16 M.V.C.No.3057/2015 offending TATA ACE. From this, it appears that, thought the P.W.1 has been cross-examined by the Respondent No.2, nothing has been elicited form her mouth to consider its specific defence. More so, the R.W.1 in his cross-examination has clearly stated that, he has not lodged any complaint as against the deceased by alleging that, the accident was taken place due to his own negligence itself and the Police have seized TATA ACE and it was inspected by the concerned RTO and the Police have filed a charge sheet as against him and he has not challenged the very registration of the criminal case and filing of the charge sheet as against him by the Police before the Hon'ble Appellate Court by preferring an Appeal or Revision. If really, there was no negligence on the part of the R.W.1 in the commission of road traffic accident and the entire negligence is on the part of the deceased in riding the Motor Cycle, the R.W.1 could have been definitely lodged a complaint before the jurisdictional Police as against the deceased immediately after the accident and he could have definitely challenged the very registration of the criminal case as against him by the concerned Police and also very fining of the charge sheet as against him by the said Police by preferring an appeal or revision before the Hon'ble Appellate Court. But, no such legal attempt has been taken by the R.W.1, which clearly implies that, the entire negligence is on the part of R.W.1 in the commission of the said road traffic accident, which caused to the deceased.
14. The contents of Ex.P.1 FIR and Ex.P.2 Complaint clearly disclosed that, the eye witness has lodged Ex.P.2 Complaint before the Hebbagudi Police as against the driver of the SCCH-7 17 M.V.C.No.3057/2015 TATA ACE bearing Registration No.KA-03-AA-4350 by alleging that, on 19.05.2015 at 8.100 a.m., when he was proceeding towards his house after completion of his work at Bommasandra, at that time, the Motor Cycle bearing No.KA-04-EL-6971 came from Bangalore and TATA ACE bearing Registration No.KA-03-AA- 4350 came from Chandapura with very high speed, in a rash and negligent manner and dashed to the said Motor Cycle and due to the said impact, the rider of the said Motor Cycle had sustained severe grievous injuries on his head and he was shifted to Hospital for treatment and he died on 20.05.2015 at 12.30 p.m., and his name is T.J. Devaraj and as such, he prayed to take necessary legal action as against the driver of offending TATA ACE bearing Registration No.KA-03-AA-4350 and based on the said complaint, the said Police have registered a criminal case as against the driver of the offending TATA ACE for the offences punishable under Sections 279 and 304(A) of IPC under Crime No.284/2015. No doubt, though the accident was taken place on 19.05.2015 at 8.00 a.m., the complaint is lodged on 20.05.20415 at 2.30 p.m., which disclosed that, there is one day delay in lodging the said complaint by the eye witness. But, the said one day delay no way affects to consider the case of the Petitioners, as, it is clear from the contents of Ex.P.1 FIR and Ex.P.2 Complaint that, immediately after the accident, the deceased was shifted to Hospital for treatment and he died on 20.05.2015 at 12.30 p.m. itself during the course of treatment at Abhaya Hospital and thereafter, the complaint is lodged. Furthermore, at the time of accident, the deceased was alone proceeding on his Motor Cycle and nobody has accompanied with him at the time of accident.
SCCH-7 18 M.V.C.No.3057/201515. The contents of Ex.P.3 Spot Panchanama, Ex.P.4 Spot Hand Sketch and Ex.P.5 MVI Report clearly disclosed that, the accident was taken place on the Service Road of Bangalore-Hosur N.H-7, near Bommasandra and the entire negligence is on the part of R.W.1 in driving the offending TATA ACE bearing Registration No.KA-03-AA-4350, which dashed to the Motor Cycle bearing Registration No.KA-04-EL-6971, wherein, the deceased was proceeding and if the driver of the offending TATA ACE, i.e., R.W.1 could have taken a little care while driving it, he could have avoided the said road traffic accident. The damages caused to both the Motor Cycle and offending TATA ACE are clearly shown in MVI Report, which disclosed about the terrific impact of the said road traffic accident. It is also clearly mentioned in Ex.P.5 MVI Report that, the said accident was not occurred due to any mechanical defects of the said vehicles.
16. The contents of Ex.P.6 Inquest and Ex.P.7 P.M Report further clearly disclosed that, in the said road traffic accident, the deceased had sustained the injury, which are anti mortem in nature and the death is due to head injury sustained and during the course of treatment at Abhaya Hospital, he succumbed due to the said accidental injuries.
17. The contents of Ex.P.9 No Objection Certificate disclosed that, the deceased expired on 20.05.2015 at 12.55 p.m. due to injuries sustained in road traffic accident.
SCCH-7 19 M.V.C.No.3057/201518. The contents of Ex.P.8 Charge Sheet further clearly disclosed that, since during the course of investigation, it is found that, due to very high speed, rash and negligent manner of driving of the offending TATA ACE bearing Registration No.KA-03-AA- 4350 by its driver itself, i.e., the R.W.1, the said road traffic accident was taken place on 19.05.2015 at 8.00 p.m., on Service Road, which was situated near by Bommasandra Village Flyover, Bangalore - Hosur N.H.7 Road, which came from Chandapur and dashed to the Motor Cycle bearing Registration No.KA-04-EL- 6971, wherein, the deceased was proceeding as a rider, which came towards Bommasandra, i.e., the offending TATA ACE dashed to the Motor Cycle on opposite direction and due to the said impact, the said Motor Cycle caused damages and the deceased had sustained severe grievous injuries and he was admitted in Abhaya Hospital and died on 20.05.2015 at 12.30 p.m. during the course of treatment to the accidental injuries and as such, after thorough investigation, the Investigating Officer has filed a charge sheet as against the R.W.1 for the offences punishable under Section 279 and 304(A) of IPC. There is not allegation leveled by the Investigating Officer in Ex.P.8 Charge Sheet as against the deceased about his negligence in the commission of the said road traffic accident.
19. From the above said material evidence, both oral and documentary, it is clearly proved that, the entire negligence is on the part of the R.W.1 in driving the offending TATA ACE bearing Registration No.KA-03-AA-4350 and there was no negligence on the part of the deceased in riding his Motor Cycle bearing SCCH-7 20 M.V.C.No.3057/2015 Registration No.KA-04-EL-6971 and the offending TATA ACE bearing Registration No.KA-03-AA-4350 as well as its driver, i.e., the R.W.1 are very much involved in the said road traffic accident, wherein, the deceased succumbed to the accidental injuries during the course of treatment on 20.05.2015 at 12.30 p.m. Accordingly, I answered Issue No.2 in the Affirmative.
20. ISSUE NO.3 :- The P.W.1 has stated that, prior to the accident, the deceased Devaraju. T.J. was hale and healthy and aged about 39 years. She has further stated in her cross- examination that, the date of birth of her deceased husband is 20.07.1975. The Plaintiffs have produced Ex.P.23 SSLC Marks Card and Ex.P.25 Driving Licence relating to the deceased, which disclosed that, the date of birth of the deceased is on 20.07.1975. The date of accident is on 19.05.2015. On perusal of the said dates, it appears that, at the time of accident, the deceased was 40 years. Hence, the age of the deceased is considered as 40 years at the time of accident.
21. The P.W.1 has stated that, her deceased husband was a Class-I Government Electrical Contractor and running Raghavendra Electricals at Bommasandra Industrial Area, Bangalore and was earning Rupees 70,000/- per month. She has further stated that, her husband was doing electrical contract work and running electrical shop since 10 years and he being a qualified Contractor since he had completed ITI in the Trade of Electrician and obtained National Trade Certificate in the year 1998. She has further stated that, her husband being a recognized SCCH-7 21 M.V.C.No.3057/2015 and qualified Class-I Contractor, he had undertaken several electrical contract works from the Government and had employed 8 to 10 men for execution of the same and had completed several projects successfully. She has further stated that, her deceased husband was an Income Tax Assessee and was paying Income Tax regularly and all the records pertaining to the said Assessments was maintained by him. The Petitioners have produced Ex.P.10 VAT Registration Certificate along with Annexure 2 in numbers, Ex.P.11 Form ST-II, Ex.P.12 Visiting Card, Ex.P.13 Shop Rental Agreement dated 20.04.2013, Ex.P.14 Income Tax Returns for the Assessment Year 2012-2013 along with Annexure, Ex.P.15 Income Tax Returns for the Assessment Year 2013-2014 along with Annexure, Ex.P.24 National Trade Certificate relating to Devaraja T.J., Ex.P.26 Purchase Order, Ex.P.28 Purchase Order, Ex.P.29 Attendance Register Book, Ex.P.30 Renewed License of Class-I Contractor standing in the name of Sri. Raghavendra Electricals, Ex.P.31 Notarized Xerox Copy of Class-I Contractor Licence relating to Sri. T.J. Devaraj, Ex.P.32 Statement of Account, Ex.P.33 Income Tax Returns for the Assessment Year 2014-2015 and Ex.P.34 Income Tax Returns for the Assessment Year 2015- 2016. On perusal of the said oral evidence of P.W.1 as well as the contents of the said material documents, it is clear that, at the time of accident, the deceased was the Government Electrical Contractor and he was running an Electrical Shop in the name and style of Sri. Raghavendra Electricals and he had ITI Certificate in Electrical and he was an Income Tax Assessee for the Assessment years 2012 to 2016. But, based on the said material evidence, it cannot be said and come to the conclusion that, the SCCH-7 22 M.V.C.No.3057/2015 income of the deceased at the time of accident was Rupees 70,000/- per month, as, no acceptable material documentary evidence is produced by the Petitioners to show that, at the time of accident, the earnings of the deceased was Rupees 70,000/- per month. Further, Ex.P.14 Income Tax Returns for the Assessment Year 2012-2013 disclosed that, the Gross Income of the deceased was of Rupees 2,48,890/- and total income was of Rupees 1,79,090/- after deduction and he has paid Income Tax of Rupees 2,819/-. The contents of Ex.P.15 Income Tax Returns for the Assessment Year 2013-2014 disclosed that, the Gross Income of the deceased was of Rupees 2,99,096/- and total income was of Rupees 1,95,100/- after deduction and he has paid Income Tax of Rupees 16,284/-. The contents of Ex.P.33 Income Tax Returns for the Assessment Year 2014-2015 disclosed that, the Gross Income of the deceased was of Rupees 3,11,462/- and total income was of Rupees 2,11,610/- after deduction and he has paid Income Tax of Rupees 24,915/-. The contents of Ex.P.34 Income Tax Returns for the Assessment Year 2015-2016 disclosed that, the Gross Income of the deceased was of Rupees 3,20,156/- and total Income was of Rupees 2,50,210/- after deduction and he has paid Income Tax of Rupees 22,848/-. From this, it appears that, every year, the income of the deceased was increased from 2012-2016. By considering the total income of the deceased, which gathered from Ex.P.14, Ex.P.15, Ex.P.33 and Ex.P.34 Income Tax Returns, the total income for the said 4 years comes to Rupees 8,36,010/- and the income of the said deceased comes to Rupees 2,09,002-50 per annum and Rupees 17,416-87 per month, which was the average income of the deceased at the time of income. Hence, by SCCH-7 23 M.V.C.No.3057/2015 considering the same, the income of the deceased is considered as Rupees 17,416-87 per month at the time of accident.
22. The P.W.1 has stated that, on account of the death of her husband, once for all, the sources of income completely stopped. She has further stated that, he has lost his life at the time of flourishing in the said business and had several other projects in hand at the time of his untimely death and he had been alive, their family would have enjoyed the entire usufructs of the said income. She has further stated that, after untimely death, she was forced to close all his business dealings since she is not qualified or experienced in the said field since she being a house wife and her children being minors and the entire family was depending on the earnings of her husband and due to his untimely death, she is unable to provide proper education and maintain her children as before and since the Petitioners No.4 and 5 are parents of the deceased, the burden of looking after them is on her shoulders and if her husband was alive, he would have taken care of their entire family and hence, they have lost not only economical support, but, also social, moral and love and affection and as such, the entire family has been put in to irreparable loss and injuries at a greater extent.
23. While answering Issue No.1, this Tribunal has already observed and come to the conclusion that, the Petitioners are the legal representatives and the Petitioners No.1 to 4 are the dependents upon the deceased. While answering Issue No.2, this Tribunal has already come to the conclusion that, the entire SCCH-7 24 M.V.C.No.3057/2015 negligence is on the part of the R.W.1 in driving the offending TATA ACE bearing Registration No.KA-03-AA-4350 and there was no negligence on the part of the deceased in riding his Motor Cycle bearing Registration No.KA-04-EL-6971 and the offending TATA ACE bearing Registration No.KA-03-AA-4350 as well as its driver, i.e., the R.W.1 are very much involved in the said road traffic accident, wherein, the deceased succumbed to the accidental injuries during the course of treatment on 20.05.2015 at 12.30 p.m. Hence, all the Petitioners being the legal representatives and the Petitioners No.1 to 4 being the dependants of the said deceased are entitled for compensation under the following heads.
24. As per the decision reported in 2013 ACJ 1403 (Rajesh and Others V/s. Rajbir Singh and Others) and as the deceased was aged 40 years at the time of accident, towards future prospects 30% of the income has to be added. So, 30% of Rupees 17,416-87 comes to Rupees 5,225-06. Therefore, the income of the deceased comes to Rupees 22,641-93 p.m. (Rs.17,416-87 + 5,225-06).
25. The Petitioners No.1 to 4 are considered as dependents of the deceased. Therefore, deceased left behind 4 dependents. As per the principles laid down in Sarala Varma's Case, considering the number of the dependents, i.e., 4, 1/4th of the income has to be deducted towards personal expenses of the deceased, i.e., Rupees 5,660-48 (1/4th of Rupees 22,641-93). Therefore, loss of dependency comes to Rupees 16,981-45 (Rupees 22,641-93 (-) Rs.5,660-48). The multiplier corresponding to the age of the SCCH-7 25 M.V.C.No.3057/2015 deceased, i.e., 40 years, is 15 as per Sarala Varma's Case. Therefore, loss of dependency comes to Rupees 30,56,661/- (Rs.16,981-45 x 12 x 15). Therefore, the Petitioners are entitled for Rupees 30,56,661/-towards loss of dependency due to death of Sri. Devaraj. T.J. @ Devaraju.T.J. S/o. Sri. A.D. Jayappa.
26. The P.W.1 has stated that, after postmortem, they shifted the dead body to her husband's native place Davanagere and for shifting the dead body, they had hired an Ambulance from Bengaluru to Davanagere by paying amount of Rupees 20,000/- for transportation and she had spent around Rupees 80,000/- for funeral expenses and obsequies ceremony. In this regard, the Petitioners have not produced any scrap of paper.
27. As per the principles laid down in the decision reported in 2013 ACJ 1403 (Rajesh and Others V/s Rajbir Singh and Others), loss of consortium to the Petitioner No.1, who is a wife of the deceased, should be Rupees 1,00,000/-, for loss of care and guidance for minor children should be Rupees 1,00,000/-, loss of love and affection has to be compensated by awarding Rupees 25,000/- and funeral expenses should be Rupees 25,000/-. As this Tribunal has already observed that, the Petitioner No.1 is a wife and the Petitioners No.2 and 3 are the minor sons of the deceased. Hence, the Petitioner No.1 is entitled for a sum of Rupees 1,00,000/- towards Loss of consortium, the Petitioners No.2 and 3 are entitled for a sum of Rupees 1,00,000/- towards loss of care and guidance for minor children and all the Petitioners SCCH-7 26 M.V.C.No.3057/2015 are entitled for a sum of Rupees 25,000/- towards loss of love and affection and Rupees 25,000/- towards funeral expenses.
28. It is just, proper and necessary to award a sum of Rupees 10,000/- towards transportation expenses of the dead body of deceased and Rupees 50,000/- towards loss of estate. Hence, the Petitioners are entitled for Rupees 10,000/- towards transportation expenses of the dead body of the deceased and Rupees 50,000/- towards loss of estate.
29. The P.W.1 has stated that, she has spent around Rupees 1,00,000/- towards medical expenses until his death and she is producing available Medical Bills of Rupees 34,329/-. The Petitioners have produced Ex.P.27 Medical Bills 10 in numbers, which is amounting of Rupees 34,329/-. The date of accident is on 19.05.2015 at 8.00 a.m. The date of death of the deceased is on 20.05.2015 at 12.30 p.m. From the date of accident till death, the deceased was hospitalized to take treatment to the accidental injuries. Therefore, the amount covered under Ex.P.27 Medical Bills, which is relating to the treatment to the deceased, cannot be doubted. Hence, the Petitioners are entitled for a sum of Rupees 34,329/- towards medical expenses.
30. In this way, the Petitioners are entitled for the following amount of compensation:-
SCCH-7 27 M.V.C.No.3057/2015Sl. No. Compensation heads Compensation amount
1. Loss of Dependency Rs. 30,56,661-00
2. Loss of Consortium Rs. 1,00,000-00
3. Loss of care and guidance Rs. 1,00,000-00 for minor children
4. Funeral Expenses Rs. 25,000-00
5. Loss of Love and affection Rs. 25,000-00
6. Actual Medical expenses Rs. 34,329-00
7. Expenses of transportation Rs. 10,000-00 of dead body
8. Loss of Estate Rs. 50,000-00 TOTAL Rs. 34,00,990-00
31. In all, the Petitioners are entitled for total compensation of Rupees 34,00,990/- along with interest at the rate of 9% per annum on the above said sum from the date of petition till payment.
32. While answering Issue No.2, this Tribunal has already come to the conclusion that, the entire negligence is on the part of the R.W.1 in driving the offending TATA ACE bearing Registration No.KA-03-AA-4350 and there was no negligence on the part of the deceased in riding his Motor Cycle bearing Registration No.KA-04- EL-6971 and the offending TATA ACE bearing Registration No.KA- 03-AA-4350 as well as its driver, i.e., the R.W.1, are very much involved in the said road traffic accident, wherein, the deceased SCCH-7 28 M.V.C.No.3057/2015 succumbed to the accidental injuries during the course of treatment on 20.05.2015 at 12.30 p.m. The Petitioners in the cause title of the petition have clearly mentioned that, the Respondent No.1 was a R.C. Owner of the offending TATA ACE bearing Registration No.KA-03-AA-4350. The Respondent No.2 in its Written Statement has clearly stated that, it has issued the policy in respect of the TATA ACE bearing Registration No.KA-03- AA-4350, but, the original copy of the policy is in the possession and control of the Respondent No.1.
The R.W.1 has clearly stated that, he was a driver of the said offending TATA ACE bearing Registration No.KA-03-AA-4350 at the time of accident. The R.W.1 has produced Ex.R.1 Certificate of Fitness, Ex.R.3 Certificate of Registration, Ex.R.4 Customer Copy of Insurance Policy and Ex.R.5 Insurance Policy relating to the offending TATA ACE bearing Registration No.KA-03-AA-4350, which clearly disclosed that, at the time of accident, all the vehicular documents relating to the offending TATA ACE bearing Registration No.KA-03-AA-4350 are standing in the name of the Respondent No.1. From this, it is made crystal clear that, at the time of accident the Respondent No.1 was a R.C. Owner and the Respondent No.2 was an Insurer and the R.W.1 was a driver of the offending TATA ACE bearing Registration No.KA-03-AA-4350 and its Insurance Policy was valid, which covers the date of accident. Both the R.W.1 and the deceased were having valid and effective driving licence to drive such class of vehicles at the time of accident, which is clear from the contents of Ex.R.2 and Ex.P.26 Driving Licences, which are produced by the R.W.1 and the Petitioners respectively. Ex.P.8 Charge Sheet clearly disclosed SCCH-7 29 M.V.C.No.3057/2015 that, there is no allegation leveled by the Investigating Officer as against the driver of the offending TATA ACE, i.e. the R.W.1, that, at the time of accident, he was not having a valid and effective Driving Licence to drive such class of offending TATA ACE. The violation of the terms and conditions by the Respondent No.1 is not proved by the Respondent No.2. Further, the Respondent No.1, who was R.C. Owner of the offending TATA ACE bearing Registration No.KA-03-AA-4350, is placed as exparte. Under such circumstances, the Respondent No.1 being the R.C. Owner and the Respondent No.2 being the Insurer of the offending TATA ACE bearing Registration No.KA-03-AA-4350 are jointly and severally liable to pay the above said compensation and interest to the Petitioners. Since, the Respondent No.2 is an Insurer, it shall indemnify the Respondent No.1. Hence, Issue No.3 is answered accordingly.
33. ISSUE NO.4 :- For the aforesaid reasons, I proceed to pass the following;
ORDER The petition filed by the Petitioners under Section 166 of the Motor Vehicles Act, is hereby partly allowed with costs.
The Petitioners are entitled for compensation of Rupees 34,00,990/-
with interest at the rate of 9% p.a. from SCCH-7 30 M.V.C.No.3057/2015 the date of the petition till the date of payment, from the Respondent No.2.
The Respondent No.2 shall deposit the said compensation and interest in this Tribunal, within three months from the date of this Order.
The Petitioners shall share the compensation amount in the ratio of 55:15:15:10:5.
In the event of deposit of the said compensation and interest, 50% shares relating to the Petitioners No.1 and 4 and the entire share relating to the Petitioner No.5 shall be released in their favour through account payee cheques, on proper identification.
Remaining 50% shares relating to the Petitioners No.1 and 4 shall be kept in FD in their respective names, in any nationalized Bank of their choice, for a period of three years.
Entire shares relating to the Petitioners No.2 and 3 shall be kept in SCCH-7 31 M.V.C.No.3057/2015 FD in their respective names in any nationalized Bank of the choice of their guardian, till they attain the age of majority.
Advocate's fee is fixed at Rupees 1,000/-.
Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by her, corrected and then, pronounced by me in the open Court on this, the 5th day of November, 2016.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONERS :-
P.W.1 : Smt. Anitha. K.G.
2. DOCUMENTS MARKED BY THE PETITIONERS :-
Ex.P.1 : True copy of FIR
Ex.P.2 : True copy of Complaint
Ex.P.3 : True copy of Spot Panchanama
Ex.P.4 : True copy of Spot Hand Sketch
Ex.P.5 : True copy of MVI Report
SCCH-7 32 M.V.C.No.3057/2015
Ex.P.6 : True copy of Inquest
Ex.P.7 : True copy of PM Report
Ex.P.8 : True copy of Charge Sheet
Ex.P.9 : No Objection Certificate
Ex.P.10 : VAT Registration Certificate along with Annexure (2 in nos.) Ex.P.11 : Form ST-II Ex.P.12 : Visiting Card Ex.P.13 : Shop Rental Agreement dated 20.04.2013 Ex.P.14 : Income Tax Returns for the Assessment Year 2012-2013 along with Annexure Ex.P.15 : Income Tax Returns for the Assessment Year 2013-2014 long with Annexure Ex.P.16 : Notarised xerox copy of Ration Card Ex.P.17 : Notarised xerox copy of Aadhaar Card relating to Devaraj. T.J. Ex.P.18 : Notarised xerox copy of Aadhaar Card relating to Anitha. K.G. Ex.P.19 : Notarised xerox copy of Aadhaar Card relating to Dayanand Ex.P.20 : Notarised xerox copy of Aadhaar Card relating to Puneeth. D. Ex.P.21 : Notarised xerox copy of Election Identity Card relating to Mahadevamma Ex.P.22 : Notarised xerox copy of Election Identity Card relating to A.D. Jayappa Ex.P.23 : Notarised xerox copy of SSLC Marks Card relating to Devaraja. T.J. Ex.P.24 : Notarised xerox copy of National Trade Certificate relating to Devaraja. T.J. Ex.P.25 : Notarised xerox copy of D.L. relating to Devaraja. T.J. Ex.P.26 : Purchase Order Ex.P.27 : Medical Bills (10 in nos.) Ex.P.28 : Purchase Order Ex.P.29 : Attendance Register Book Ex.P.30 : Certified copy of Renewed Licence of Class-I Contractor standing in the name of Sri. Raghavendra Electricals Ex.P.31 : Notarised xerox copy of Class-I Contractor Licence relating to Sri. T.J. SCCH-7 33 M.V.C.No.3057/2015 Devaraj Ex.P.32 : True copy of Statement of Account Ex.P.33 : True copy of Income Tax Return for the Assessment Year 2014-2015 Ex.P.34 : True copy of Income Tax Return for the Assessment Year 2015-2016
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
R.W.1 : Ajith Kumar. T.V.
3. DOCUMENTS MARKED BY THE RESPONDENTS :-
Ex.R.1 : Notarised xerox copy of Certificate of
Fitness relating to Vehicle bearing
Registration No.KA-03-AA-4350
Ex.R.2 : Notarised xerox copy of D.L. relating
to Ajith Kumar. T.V.
Ex.R.3 : Notarised xerox copy of Certificate of
Registration relating to vehicle bearing
Registration No.KA-03-AA-4350
Ex.R.4 : Notarised xerox copy of Customer copy of
Insurance Policy relating to Vehicle
bearing Registration No.KA-03-AA-4350
Ex.R.5 : Notarised xerox copy of Insurance Policy
relating to Vehicle bearing Registration
No.KA-03-AA-4350
(INDIRA MAILSWAMY CHETTIYAR)
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.