Bangalore District Court
Mrs.Usha Rani Jami vs Mr.Balaram on 1 June, 2015
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS TRIBUNAL,
BANGALORE CITY.
SCCH-14
PRESENT: Basavaraj Chengti., B.Com.,LL.B.,(spl)
Member, MACT,
XVI ADDL. JUDGE,
Court of Small Causes,
BANGALORE.
MVC No.4702/2013
Dated this the 1st day of June 2015
Petitioner/s : 1. Mrs.Usha Rani Jami,
W/o Late Jami Ananda Kumar @
Anand Kumar
Aged about 24 years,
2. Master J.Victor Uttam,
S/o Late Jami Ananda Kumar @
Anand Kumar
Aged about 5 years,
3. Kumari.Jami Anand,
D/o Late Jami Ananda Kumar @
Anand Kumar
Aged about 3 years,
petitioner No.2 and 3
being Minors are represented
by the 1st petitioner,
their mother, the natural
guardian.
4. Mrs.Rajaratham Jami,
W/o Sri.Jami Appa Rao and
Mother of Late Jami Anand Kumar
@ Anand Kumar.
All residing at
SCCH-14 2 MVC No.4702/2013
No.41, 2nd Floor, 4th Cross,
1st Main Road,
Anugraha layout,
Hoodi,
Bangalore-560048.
petitioner' permanent address;
No.40-1-15/3,
Thatichetlapalem, Kasturi Nagar,
Visakhapatnam-530024.
V/s (By pleader Sri ARG)
Respondent/s 1.Mr.Balaram, Major,
S/o Late Rama Krishna,
at No.24/9, Nehru Road cross,
Manjunath nagar,
New Guddadahalli,
Near Shanishwar Temple,
Mysore road,
Bangalore-560026.
Also available at No.58, 2nd cross,
New Guddadahalli,
Bangalore-560026.
2. The Commissioner,
Bruhat Bangalore,
Mahanagara Palika,
Bangalore.
3. Karnataka Government Insurance
Department, By its Director,
KGID, Bangalore.
(R1- Exparte
R2-By pleader Sri VVK
R3-By pleader Sri.MA)
XVI ADDL.JUDGE & MACT,
Court of Small Causes,
Bangalore.
SCCH-14 3 MVC No.4702/2013
JUDGMENT
This claim petition is filed by the petitioners U/Sec.166 of Motor Vehicles Act for grant of compensation for the death of Jami Ananda Kumar @ Anand Kumar in a road traffic accident.
2. Brief averments of the petition are as under:
The petitioners are the wife, children and mother of the deceased Jami Anand Kumar @ Ananda Kumar. On 04.09.2012 at about 05.30 pm, the deceased Jami Anand Kumar @ Ananda Kumar was riding his motorcycle bearing No.KA-03-EX-7510 from Shanthinagar towards Anugraha Layout, Hoodi Bangalore. When he was slowly proceeding towards the left side of lower Agraharam main road at about 06.15 pm, BBMP lorry bearing No.KA-04-C- 9092 driven by its driver i.e., by the respondent No.1 in rash and negligent manner came from behind and hit the motorcycle of the deceased. Due to impact, the deceased was thrown out and fell down. Left rear wheel of the lorry ran over the deceased and he was crushed to death. The deceased was a commerce graduate and had successfully completed Industrial Accountancy from reputed Institute of Computer Accountants. He came to Bangalore in the year 2010 to join his brother Praveen Kumar in construction business. They are running their construction business in the name and style of M/s Amana Constructions. They were living together in a palatial building in Anugraha Layout at Hoodi. The business was flourishing and the individual income of the deceased increased from Rs.35,000/- to Rs.50,000/- per month each by the end of the year 2012. The petitioners were maintained SCCH-14 4 MVC No.4702/2013 by the deceased was paying Rs.30,000/- per month for their maintenance. The deceased was aged 34 years on the date of accident. The 1st petitioner has lost her husband in very young age. The 2nd and 3rd petitioners lost their father in childhood. The 4th petitioner lost her eldest son at her oldage. The petitioners took the dead body of the deceased to their native place Vishakapatnam by spending Rs.36,000/- for transportation. They spent more than Rs.24,000/- for funeral expenses. The deceased was having bright future prospects in the business. The future income might exceed more than Rs.1,00,000/- per month within a year. The accident has occurred due to rash and negligent driving of the driver of BBMP lorry bearing No.KA-04-C-9092. The respondents are the driver, owner and insurer of the said lorry. Hence, they are liable to pay compensation. Ashoknagar police have registered Cr.No.61/2012 against the driver of said lorry for the offence punishable U/s 279 and 304(A) IPC. Hence, the petitioners have sought for awarding compensation of Rs.87,80,000/- with cost and interest.
3. In pursuance of the notices, the respondent No.2 and 3 have appeared before the Court through their respective counsel. The respondent No.1 remained absent inspite of affixture of notice on his residence. Hence, he is placed exparte. The respondent No.2 has failed to file written statement. The respondent No.3 has filed written statement denying the averments of the petition as false and contended that the compensation claimed by the petitioners is high, exorbitant and excessive, that the accident has occurred due to sole negligence of the deceased, that the petition is bad for non-
SCCH-14 5 MVC No.4702/2013joinder of owner and insurer of motorcycle, that there was no negligence on the part of the respondent No.1 for the accident. However, he has admitted the issuance of policy in favour of the respondent No.2 in respect of lorry bearing No.KA-04-C-9092, but he has denied age, occupation and income of the deceased. Hence, he has sought for dismissal of the petition as against him.
4. On the basis above pleadings, the following issues were framed :
1. Whether the petitioners prove that Sri. Jami Ananda Kumar @ Anand Kumar s/o Sri. Jami Appa Rao died on 04.09.2012 at about 06.15 pm near India Garage Signal, Lower Agram Main Road, Bangalore City in an accident arising due to rash and negligent driving of the driver of BBMP Lorry bearing No.KA-04-C-9092?
2. Whether the petitioners are entitled to compensation? If so, how much and from whom?
3. What Order or award?
5. During the evidence, the petitioners have examined the petitioner no.1 as PW-1 and examined 2 more witnesses as PW2 and 3. They have got marked documents as Ex.P1 to 37. The contesting respondent has not adduced any evidence on his behalf.
6. Heard the arguments. The counsel for the respondent No.3 has filed written arguments. The counsel for the petitioner has relied upon following rulings:
SCCH-14 6 MVC No.4702/20131. 2014 ACJ 2537 (Indira Devi and Others Vs Anand Prakash Malviya & Another),
2. 2013 ACJ 646 (Managing Director, APSRTC and another Vs C.Rangaswamy and another),
3. 2014 ACJ 903 (Amulya Reddy and others Vs New India Assurance Ltd and Another)
4. 2014 ACJ 1317 (Chitra chintaman Kolekar and other Vs Government of Maharashtra and another),
5. 2009 ACJ 1298 (SC) (Sarala Varma and others V/s Delhi Transport Corporation and another)
6. 2013 ACJ 1403 (SC) (Rajesh Vs Rajbir Singh)
7. 2013 ACJ 1253 (SC) (Reshma Vs Madan Mohan and another) I have gone through the said arguments and rulings and perused the records.
7. My findings on the above issues are as under:-
Issue No.1 : In Affirmative.
Issue No.2 : In affirmative. For
Rs.15,55,000/- From the
respondent No.3.
Issue No.3 : As per final order :
for the following:
REASONS
8. ISSUE NO.1 : It is the case of the petitioners that Jami Ananda Kumar @ Anand Kumar died on 04.09.2012 at about 06.15 pm, near India Garage Signal, Lower Agraharam main road, Bangalore in an accident arising due to rash and negligent driving of BBMP lorry bearing No.KA-04-C-9092 by the respondent No.1.
SCCH-14 7 MVC No.4702/2013The respondents are the driver, owner and insurer of the said lorry. The respondent No.1 remained exparte. The respondent No.2 has not filed statement of objections. The respondent No.3 alone has contested the matter. He has admitted the issuance of policy in favour of the respondent No.2 in respect of BBMP lorry bearing No.KA-04-C-9092. This admission indicates that the respondent No.2 is the owner and the respondent No.3 is the insurer of said lorry. There is no denial as to status of the respondent No.1 as the driver of said lorry. The respondent No.3 has admitted the death of Jami Ananda Kumar @ Anand Kumar in the accident involving a motorcycle and BBMP lorry. He has disputed the negligence aspect only. It is his defence that the accident has occurred due to sole negligence of the deceased and there was no negligence on the part of the respondent No.1.
9. The petitioners have relied upon oral evidence of PW1 to 3 and contents of Ex.P1 to 12 to prove the manner of accident, causing of injuries to Jami Ananda Kumar @ Anand Kumar in the accident and his death due to such injuries. The respondent No.3 has not adduced any evidence on his behalf to disprove the case of the petitioners and to prove his defence.
10. PW-1 Mrs.Usha Rani Jami is the wife of the deceased and she has reiterated the averments of petition regarding manner accident and death of her husband due to the injuries sustained by him in the accident. PW-2 Praveen Kumar Jami is the brother of the deceased and he has deposed about death of Jami Ananda Kumar @ Anand Kumar in a road traffic accident. PW-3 Maranna is the PSI of Ashok Nagar Traffic police who is the first informant SCCH-14 8 MVC No.4702/2013 in crime No.61/2012 of his police station. He is the eyewitness to the accident and he has supported the version of PW-1 as to manner of accident and its result. Except bare denials, nothing has been elicited from PW-1 to 3 to disbelieve their evidence regarding manner of accident, causing of injuries to the deceased and death of the deceased due to injuries sustained by him in the accident. Only on the basis of those denials, their evidence can not be disbelieved. The respondent No.3 has not made any efforts to examine the respondent No.1 i.e., the driver of insured BBMP lorry. He has not examined any other eyewitness to establish his defence that the accident has occurred due to sole negligence of the deceased and there was no negligence on the part of the respondent No.1. Therefore, the evidence of PW-1 to 3 is to be believed regarding manner of accident and its result. The respondent No.3 has failed to prove his defence regarding the said facts by producing any evidence.
11. Copies of crime report, FIR, PM report, spot panchanama, Sketch, IMV report, Sec.133 Notice, reply, certificate of Hosmat Hospital, Inquest report, charge sheet and copy of driving license of the deceased are at Ex.P1 to 12. The contents of these documents corroborate the oral evidence of PW-1 to 3. Driving license at Ex.P12 reveals that the deceased was holding a valid and effective driving license to ride a motorcycle with gear. Inquest report and PM report clearly disclose that the death of Jami Ananda Kumar @ Anand Kumar has occurred due to the injuries caused to him in a road traffic accident. The police records go to show that Ashok Nagar Traffic police have registered crime SCCH-14 9 MVC No.4702/2013 No.61/2012 against the driver of BBMP lorry bearing No.KA-04-C- 9092 for the offences punishable U/s 279 and 304(A) of IPC and investigated the matter. PW-3 is a public servant and he was on duty at the time of accident. He has lodged complaint regarding the accident which corroborates the evidence of PW-1 as to manner of accident. After completing investigation, the police have filed charge sheet against the respondent No.1 for causing the death of Jami Ananda Kumar @ Anand Kumar by driving his lorry in rash and negligent manner. Spot panchanama and sketch at Ex.P4 and 5 reveal that the accident has occurred on the western portion of the road, that the lorry came from behind and dashed against the motorcycle of the deceased. IMV report at Ex.P6 discloses the impact between lorry and motorcycle. Both the vehicles were damaged. If the deceased drove his vehicle in rash and negligent manner and dashed to the lorry, rear portion of the lorry should have been damaged, but scratch mark was found on the front left side of the lorry. This indicates that the lorry came from behind and dashed to the motorcycle. It is opined by the IMV authority that brake system of both the vehicles was in order and the accident was not due to any mechanical defects of the vehicles. Then, the accident should have been occurred due to negligence of the deceased or due to negligence of the respondent No.1 or due to negligence of both of them. There is no evidence that there was sole negligence or contributory negligence on the part of the deceased for the occurrence of the accident. On the other hand, PW-3 has categorically stated that the driver of BBMP lorry bearing No. KA-04-C-9092 drove his vehicle in rash and negligent manner and SCCH-14 10 MVC No.4702/2013 dashed against the motorcycle of the deceased from behind. There is nothing on record to believe that investigation done by the police is defective or collusive. The competent Court has not held that the respondent No.1 is falsely implicated in the case. Oral evidence of PW-1 to 3 is corroborated by the contents of Ex.P1 to 12 which collectively substantiate the averments of the petition as to manner of accident, causing of injuries to the deceased and his death due to such injuries. There is no evidence on behalf of the respondent No.3 to rebut the oral and documentary evidence produced by the petitioners. Therefore, I hold that the petitioners have proved this issue and I answer the same in affirmative.
12. ISSUE NO.2 : It is pleaded by the petitioners that they are the wife, children and mother of the deceased Jami Ananda Kumar @ Anand Kumar. The respondent No.3 has not disputed the relationship between the petitioners and the deceased. PW-1 Mrs.Usha Rani Jami and PW-2 Praveen Kumar Jami have deposed about the relationship between petitioners and the deceased. Their evidence regarding the said fact remained unchallenged. However, it is suggested that PW-2 is looking after the petitioner No.4, but the suggestion is denied by PW-1. Copy of voter ID and PAN card of the petitioner No.1 and 4 are Ex.P13 to 16. Marriage certificate, transfer certificate, marriage invitation card, birth certificates and fee receipts are at Ex.P17, 23, 24, 35 to 37. These documents establish the relationship between the petitioners and the deceased. There is nothing on record to discard the said documentary evidence. Hence, I am of the opinion that the petitioners are the wife, son, daughter and mother of the deceased.
SCCH-14 11 MVC No.4702/2013The petitioner No.2 and 3 are minors. The petitioner No.4 is aged more than 53 years. There is no evidence to believe that the petitioners were not depending upon the deceased. Hence, I hold that the petitioners are the LRs and dependents of the deceased.
13. It is pleaded that the deceased was aged 34 years, was a partner in Amana contructions, Bangalore and was getting monthly income of Rs.35,000/-, that the deceased was having bright future prospects and he would have got monthly income of Rs.1,00,000/- within a year. The respondent No.3 has denied the age, occupation and income of the deceased. The respondent No.2 has no defence. PW-1 Mrs. Usha Rani Jami and PW-2 Praveen kumar have deposed about the age, occupation and income of the deceased. The petitioners have got marked copy of PM report, Inquest report, copy of driving license, Marks cards, certificates, Bank statement, documents pertaining to Amana Constructions, IT returns, which are marked as Ex.P3, 10, 18 to 22, 25 to 29.
14. The date of birth of the deceased is shown as 09.08.1978 in driving license and SSE marks card. There is nothing on record to disbelieve the date mentioned in the public records. Therefore, I believe that the deceased was born on 09.08.1978. The accident has occurred on 04.09.2012. It means the deceased was aged 34 years as on the date of accident. Appropriate multiplier for the said age is 16.
15. The certificates at Ex.P20 to 22 disclose that the deceased completed Vocational training and has obtained National SCCH-14 12 MVC No.4702/2013 Trade Certificate (NTC) in the year 2001 in the trade of Electronic Mechanic, that he was knowing typewriting in English and he has completed course in Industrial Accountant at Vizag in the year 2009 and secured 'A' Grade. His occupation is shown as contractor in inquest panchanama. There is nothing on record to disbelieve the contents of Inquest panchanama which was drawn by the police during investigation. Cheque book requisition form and cancelled cheque are at Ex.P25 and 26 which reveal the existence of Amana Constructions, but copy of Composite Tax Registration Certificate at Ex.P29 goes to show that PW-2 Praveen Kumar is the proprietor of Anand Constructions. There is contradiction between Ex.P26 and 29 regarding the nature of firm of the deceased and his brother. If deceased was the partner of either Amana Constructions or Anand Constructions, the name of PW-2 should have been shown as partner of said firm. Statement of accounts and Income Tax returns at Ex.P27 and 28 reveal that the bank account is in the individual name of PW-2 and he himself has submitted returns to Income Tax department. The said documents clearly go to show that the firm of PW-2 is a proprietary concern and not a partnership firm. There is no document to believe that the deceased was the partner of either Amana Constructions or Anand Constructions. Only on the basis of certain payments made to the deceased through cheque from the account shown in Ex.P27, it can not be said that the deceased was the partner and the payments shown therein are the income or salary paid to him. I have carefully gone through the Income Tax returns at Ex.P28 which reveal that PW-2 has declared his gross total income as SCCH-14 13 MVC No.4702/2013 Rs.2,72,000/- for the financial year 2009-10 and as Rs.3,26,203/- for the financial year 2010-11. The accident has occurred on 04.09.2012. If it is believed that there was an increase in the income in the financial year 2011-12, it can be said that PW-2 was having an annual income of about Rs.3,60,000/- during the said year. The payments shown in Ex.P27 reveal that huge amount was paid to the deceased from time to time. A person having gross income of Rs.3,60,000/- can not pay profit or salary of Rs.1,00,000/- or so to his partner. Moreover, the evidence on record clearly establishes that the business of PW-2 is a proprietary concern. Therefore, evidence of PW-2 and 3 regarding occupation and income of the deceased is liable to be rejected. Police records reveal that the deceased was working as a contractor. Looking to his occupation as contractor and to his qualification, I am of the opinion that if income of the deceased is considered as Rs.10,000/- per month, it would definitely meet the ends of justice. The petitioners have relied upon ruling reported in 2009 ACJ 1298 (Sarala Varma and Others Vs DTC and another). There is no evidence to hold that the deceased was having bright future prospects and there was a chance of his getting increase in the income from time to time. Hence, future prospects can not be added. The principle laid down in the said ruling is applicable only to salaried people. The petitioners have relied upon ruling reported 2013 ACJ 1403 (Rajesh and other Vs Rajbir Singh and others) regarding future prospects, but the view expressed in the said ruling is already referred to larger bench and till the decision of the larger bench, it is directed in ruling reported in 2013 ACJ 1253 SCCH-14 14 MVC No.4702/2013 (Reshma Kumar and others Vs Madhan Mohan and another) to follow the principle laid down in Sarala Varma Case. Moreover, our Hon'ble High Court has held that future prospects can not be considered in case of self employed persons in ruling reported in MFA 4332/2013 (New India Assurance Co. Ltd Vs Pushparaj). Therefore, I hold that the deceased was having a monthly income of Rs.10,000/- which comes to Rs.1,20,000/- pa., The petitioners have lost their dependency. The 3rd and 4th ruling relied upon by the petitioners are pertaining to the deduction of personal expenses of the deceased. Looking to the number of dependents and applying the said rulings, 1/4th of income shall be deducted towards living expenses of the deceased. After such deduction, the net income of the deceased comes to Rs.90,000/- pa., Then, loss of dependency of the petitioners would be Rs.90,000X16=Rs.14,40,000/-.
16. The petitioners are the wife, children and mother of deceased. They lost love and affection of the deceased. Therefore, the petitioners are entitled for a compensation of Rs.40,000/- towards loss of love and affection. PW-1 has stated that the dead body was taken to Vishakapatnam and last rites have been performed, that she spent Rs.60,000/- for transportation of dead body and funeral expenses. There is no documentary evidence regarding the expenses incurred by the petitioners. However, there is nothing on record to disbelieve the evidence of PW-1 regarding transportation of dead body to Vishakapatnam and performance of final rites. Therefore, I am inclined to award a compensation of SCCH-14 15 MVC No.4702/2013 Rs.25,000/- towards transportation and Rs.25,000/- funeral expenses. The petitioner No.1 has lost her husband in young age. Hence, she is entitled for further compensation of Rs.25,000/- towards loss of consortium. Thus, the petitioners are entitled for total compensation of Rs.15,55,000/-. They are further entitled for interest @ 9%pa, from the date of petition till the date of payment. The respondents are the driver, owner and insurer of BBMP lorry bearing KA-04-C-9092. The accident has occurred due to rash and negligent driving of the lorry by the respondent No.1. Hence, the respondent No.2 is vicariously and the respondent No.3 is contractually liable to pay compensation to the petitioners as calculated above. Their liability is joint and several. In view of policy, the respondent No.3 is liable to deposit the amount before the Court. However, the respondent No.1 is not liable to pay compensation to the petitioners and petition as against him is liable to be dismissed. Hence, I answer the issue as above.
17. ISSUE NO.4: In view of above discussion and findings, I proceed to pass the following:
ORDER The petition filed by the petitioners U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioners are entitled for a compensation of Rs.15,55,000/- with interest @ 9% per annum from the date of petition till the date of payment.SCCH-14 16 MVC No.4702/2013
The respondent No.2 and 3 are jointly and severally liable to pay to the petitioners a compensation of Rs.15,55,000/- with interest. In view of policy, the respondent No.3 is directed to deposit the amount before court within one month from the date of order.
The petitioners are entitled to share the compensation as under;
The petitioner No.1 Rs.5,55,000/-
The petitioner No.2 Rs.4,00,000/-
The petitioner No.3 Rs.4,00,000/-
The petitioner No.4 Rs.2,00,000/-
After deposit, Rs.2,00,000/- out of the share of the petitioner No.1 and Rs.1,00,000/- out of the share of the petitioner No.4 shall be deposited in their respective names in any nationalized or scheduled bank for a period of 3 years. Balance and interest shall be released in their favour through account payee cheque with proper identification. Entire share amount of the petitioner No.2 and 3 shall be deposited in their respective names in any nationalised or scheduled bank till their attaining majority.
The claim petition as against the respondent No.1 is dismissed without cost.SCCH-14 17 MVC No.4702/2013
Advocate's fee is fixed at Rs.5,000/-. Draw award accordingly.
(Dictated to the Stenographer, directly on computer and then corrected by me and pronounced in the open court, on this the 1st day of June 2015.) (Basavaraj Chengti) XVI ADDL.JUDGE & MACT, Court of Small Causes, Bangalore.SCCH-14 18 MVC No.4702/2013
ANNEXURE WITNESSES EXAMINED AND DOCUMENTS MARKED FOR PETITIONERS AND RESPONDENTS:
PW.1 Usha Rani Jami
PW.2 Mr.Praveen Kumar Jami
PW.3 M.B.Maranna
Respondent' s NIL
Ex.P1 - Copy of Report
Ex.P2 - Copy of FIR
Ex.P3 - Copy of PM report
Ex.P4 - Copy of Spot panchanama
Ex.P5 - Copy of Sketch
Ex.P6 - Copy of MVI report
Ex.P7 - Copy of Notice
Ex.P8 - Copy of reply
Ex.P9 - Copy of report given to Hosmat hospital
Ex.P10 - Copy of PM report
Ex.P11 - Copy of charge sheet
Ex.P12 - Copy of Driving license
Ex.P13 - Copy of Voter ID
Ex.P14 - Copy of PAN card
Ex.P15 - Copy of Voter ID
Ex.P16 - Copy of PAN card
Ex.P17 - Copy of marriage certificate
Ex.P18 - Copy of SSLC marks card
Ex.P19 - Copy of convocation certificate
Ex.P20 - Copy of PNTC
Ex.P21 - Copy of Technical examination certificate
Ex.P22 - Copy of computer accountancy certificate
Ex.P23 - Copy of TC
Ex.P23 - Copy of marriage invitation
E.xP25 - Cheque book requition form
Ex.P26 - Cancelled cheque
Ex.P27 - Statement of Account
Ex.P28 - ITR acknowledgments for the year
2010-11, 2011-12 (2 in nos)
Ex.P29 - Copy of Composite Tax registration Certificate.
SCCH-14 19 MVC No.4702/2013
Ex.P30 - Copy of PAN card
Ex.P31 - Copy of Driving Licence.
Ex.P32 - Copy of Certificate issued by police regarding
handing over the deadbody.
Ex.P33 - Copy of Death Report
Ex.P34 - Cash Receipt issued by Vishakapatnam
Christian Cemeteries Board.
Ex.P35&36- Copy of Birth certificates
Ex.P37 - Copy of Fee receipts
Respondent's NIL
XVI ADDL.JUDGE,
Court of Small Causes,
BANGALORE.