Bangalore District Court
Mr.K.Jagadeesh vs Mr.M.Anil on 5 February, 2015
BEFORE THE MOTOR VEHICLES ACCIDENT CLAIMS
TRIBUNAL, BENGALURU.
(SCCH.13)
DATE: THE 5TH DAY OF FEBRUARY 2015.
PRESENT :
SMT.B.PUSHPANJALI, B.A., LL.M.
II Addl. Small Causes Judge &
XXVIII ACMM, Bengaluru.
M.V.C.No.6257 of 2013
PETITIONERS: 1. Mr.K.Jagadeesh, 53 years
S/o Kanan,
2. Smt.Chandra J.,
W/o K.Jagadeesh, 43 years,
3. Kum.Divya J.,
D/o K.Jagadeesh, 23 years
All are r/at No.6,
Om Shankthi Nilaya,
Balaji Layout, 4th Cross,
Maragondanahalli,
K.R.Puram,
Bengaluru-560 036.
vs.
RESPONDENTS: 1.Mr.M.Anil,
S/o Mylarappa,
Behind Murali Bar,
Near Tel.Phone Exchange,
Chikkaballapur Dist.,
(Owner of the Private Bus bearing
Reg.No.KA-01-A-6535)
2 MVC.6257/2013
SCCH-13
2. ICICI Lombard General Ins.Co.Ltd.,
No.89, S.V.R.Complex, 2nd floor,
Madiwala, Hosur road,
Bengaluru-560 068.
(Insurer of the Private vide Policy
No.3004/54752199/05/000 valid
from 20.08.13 to 19.08.14)
-o0o-
JUDGMENT
The LRs.of the deceased Praveen J, S/o K.Jagadeesh have filed the present petition under Sec.166 of M.V.Act., claiming compensation of Rs.50,00,000/- on account of his death in a motor vehicle accident.
2. The brief facts of the petitioners' case are that:-
On 22.11.2013, at about 10.30 p.m., when deceased was riding a motor cycle bearing Reg.No.KA-03- HB-9632 along with one pillion rider-Pradeep Kumar, on White Field road, towards K.R.Puram Railway Station, when he reached near Durga Mohalla, at that time, a Private Bus bearing Reg.No.KA-01-A-6535 driven by its driver in a rash and negligent manner, endangering to human life, without following any traffic rules and regulations and movements of the vehicles, came from 3 MVC.6257/2013 SCCH-13 behind and tried to over take the motor cycle and dashed against the deceased motor cycle. Due to impact, both deceased and pillion rider fell on the road and the left rear wheel of the private bus ran over the stomach and thighs of the deceased and he succumbed to the injuries at Bowring hospital. It is contended that the petitioners have suffered loss of dependency, loss of love and affection and loss of estate. Hence, the instant petition.
3. In response to the notices, respondent No.1 did not appear and he was placed exparte. Respondent No.2 has placed its appearance through the counsel and filed written statement with the following contentions:-
The 2nd respondent-insurance company contends that the accident has not occurred due to rash and negligent driving of the offending vehicle by its driver and contended that the accident was due to the negligence of the deceased himself. It has admitted the issue of insurance policy in respect of the vehicle in question and its validity as on the date of accident. It has further contended that the offending Bus was not holding valid 4 MVC.6257/2013 SCCH-13 Permit and fitness certificate to ply in the public place. Hence, it is in violation of the policy terms and conditions. The offending bus was having stage carriage permit to ply from Begur to Gowribidanur within 6.15 a.m. to 7.30 p.m., but the alleged accident was taken place at about 10.30 p.m. Hence, the alleged accident was taken place beyond the permitted period as mentioned in the permit and it is in violation of the terms and conditions of the policy. It has disputed the death of deceased on account of the injuries sustained by him in the motor vehicle accident. It has also disputed the age, avocation and income of the deceased. It has also contended that the compensation claimed in the petition is exorbitant, therefore, the instant petition may be dismissed against the respondent.
4. Basing on the above pleadings the following issues have been framed:-
1. Whether petitioners prove that they are the Legal representatives of the deceased-Praveen J?
2. Whether the petitioners prove that the deceased succumbed to the injuries sustained in RTA on 22.11.2013 at about 10.30 p.m., on white Field Road, 5 MVC.6257/2013 SCCH-13 near Durga Mohalla, K.R.Puram, Bengaluru, involving Private Bus bearing Reg.No.KA-01--6535 ?
3. Whether the petitioners are entitled for the compensation ? If so, to what extent & From whom?
4. What order.?
5. In order to prove the petition claim, the 1st petitioner was examined as PW.1 and got examined one witness as PW2 and got marked documents as per Ex.P.1 to P.26. 2nd Respondent examined the driver of its insured vehicle and two witnesses as RWs.1 to 3 and got marked two documents as per Exs.R1 and R2.
6. Heard the arguments. The counsel for the 2nd Respondent has relied upon the following citations:
1.ILR 2012 KAR 6065 (B.T.Venkatesh -vs- Jagadeesh Kumar & others 2.2004 ACJ 2094 (National Insurance Co.Ltd -vs- Challa Bharathamma & others)
3.(2010 Kant.M.A.C. 346(Kant) (Oriental Insurance Co.Ltd -vs- K.Shivarao & another.
4. M.F.A.No.7723/2011 (MV) (Smt.Kempamma @ Chikkatayamma-vs-
Ramesh and another)
7. My answers to the above issues are as under:-
Issue No.1 : In the affirmative.6 MVC.6257/2013
SCCH-13 Issue No.2 : In the affirmative.
Issue No.3 : In the affirmative Issue No.4: As per the final order for the following.
REASONS
8. Issue Nos.1 & 2 :- Claimants No.1 and 2 are before this tribunal seeking compensation in capacity of LRs of the deceased. 1st petitioner has examined himself as PW.1 and filed his affidavit stating that he is the father, 2nd petitioner is the mother and 3rd petitioner is the younger sister of the deceased. The respondents have not seriously disputed their relationship or status as LRs. of the deceased. The names and above relationship of the petitioner with the deceased are reflected in Exs.P.17 and P17- NC of Aadhaar of 1st petitioner and Election ID card of the petitioners No.2 and 3. Since, there is no evidence to the contrary led by the 2nd respondent and there are no rival claimants, the above material is suffice to hold that they are the LRs of the deceased.
9. It is the case of the petitioners that deceased Praveen J. died on account of accidental injuries 7 MVC.6257/2013 SCCH-13 sustained in the road traffic accident that occurred on 22.11.2013, at about 10.30 a.m., when his son was riding a motor cycle bearing Reg.No.KA-03-HB-9632 along with one pillion rider-Pradeep Kumar, on White Field road, towards K.R.Puram Railway Station, when he reached near Durga Mohalla, at that time, a Private Bus bearing Reg.No.KA-01-A-6535 driven by its driver in a rash and negligent manner, endangering to human life, without following any traffic rules and regulations and movements of the vehicles, came from behind and tried to over take the motor cycle and dashed against his son's motor cycle. Due to impact, both his son and pillion rider fell on the road and the left rear wheel of the private bus ran over the stomach and thighs of his son and he succumbed to the injuries.
In order to prove the cause of the accident, resulting the death of the deceased, PW1 has filed his affidavit in lieu of oral evidence, which is nothing but replica of the petition averments. Apart from the oral evidence, he has also produced documents. On the other hand, despite service of the summons, 1st respondent who is the owner 8 MVC.6257/2013 SCCH-13 of the offending vehicle did not turned up, hence, he placed exparte.
10. The 2nd respondent has disputed its liability on the ground that the accident is not on the negligence of the driver of its insured vehicle, but it is the sole negligence of the deceased. It is the specific contention of the 2nd respondent that when the bus was proceeding towards Mahadevapura, the deceased rode the vehicle rashly and negligently and dashed against right side of the vehicle. In order to prove its specific assertion, the 2nd respondent examined the driver of the Bus on the date of the accident as RW1 and the Legal Manager as RW3. Both have filed affidavit and reasserting the same in their affidavit. The evidence of RW3 cannot be considered for ascertaining the cause of the accident, because, he has spoken something, for which, he has no personal knowledge. It is an admitted fact that both the vehicles are involved in the accident. According to RW1, who is a driver of the offending bus, at the time of accident, stated that the deceased dashed against the right side of the bus when it was stopped for alighting the passengers. In order 9 MVC.6257/2013 SCCH-13 to substantiate its specific assertion, except self serving testimony of RW1, the 2nd respondent neither examined eye witness to the accident or the passengers of the bus, because they are the better persons to speak about the cause of the accident. Though, RW1 specifically contents that he has given the written complaint to the Investigating Officer narrating the cause of the accident, but he has not placed the copy of the same before the court. As admitted by him, RW1 after the accident, fled away from the place of the accident. If at all, the accident is not of his negligence, the question of escaping from the place of accident does not arise at all. As he being the driver of the heavy vehicle, he ought to have informed the police about the cause of the accident. Further, he has not approached the police, narrating the true cause of the accident. In action, on the part of RW1 give raise to suspect the contention taken by the 2nd respondent. If according to RW1, the deceased dashed against the right side of the bus, definitely, damages should be on the right side of the bus and front side of the two wheeler. Ex.P5- IMV report reflects that the bus had damaged on the front 10 MVC.6257/2013 SCCH-13 side and the motor cycle had damaged on the right side. The damages as reflected in Ex.P5, is admitted by RW1 in his cross examination. If according to him, Ex.P5 is not correct report, definitely, he could have produce the bill for having repaired the damages caused to the bus, but no such documents are placed before the court. The Sketch and Mahazar do reflects that the motor cycle was proceeded on the left side of the road, whereas the bus was proceeding on the middle of the road and suddenly, took towards left side and dashed against the motor cycle. In order to replace these material facts, as reflected from the Sketch , Mahazar, IMV Report, except self serving testimonies of RW1 and RW3, no rebuttal evidence is placed before the court. Besides, RW1 is facing criminal case pertaining to the accident, and he had not challenged the final report before the concerned authority or filed counter complaint. This also give raise to suspect that the accident is on the negligence of the driver of the offending bus. Therefore, this tribunal is of the opinion that the 2nd respondent totally failed to prove that the deceased himself negligent in causing the accident. On looking to 11 MVC.6257/2013 SCCH-13 the oral evidence of PW.1 and police papers like FIR, Charge sheet, Mahazar and Sketch, this tribunal is of opinion that the accident was on account of rash and negligent driving by the driver offending bus and in the said accident, the deceased sustained grievous injury and succumbed to the injuries. Therefore, there is nexus between the injuries sustained in the accident and death of the deceased. Consequently, issue Nos.1 and 2 are answered in affirmative.
11. Issue No.3 :-Basically, only 3 facts need to be established by the claimants for determining compensation in case of death. (A) Age of the deceased, (B) income of the deceased and (C) Number of dependency. So, at the cost of repetition, these are important facts to determine the quantum of compensation.
LOSS OF DEPENDENCY :- In the petition, it is stated that the deceased was aged about 24 years. In order to prove the accurate age of the deceased, the petitioners have produced S.S.L.C.Marks card at Ex.P9, wherein the date of birth of the deceased is shown as 12 MVC.6257/2013 SCCH-13 26.04.1989. So, as on the date of accident, the deceased was aged about 24 years. Hence, this tribunal could believe that the deceased was aged about 24 years as on the date of the accident.
12. Then, this court has to ascertain the income of the deceased on the date of the accident. In the petition, it is contended that the deceased was working as a Contract Center Executive at MEdRC Edu Tech., Hyderabad and earning Rs.9,000/- p.m. In order to prove the avocation and income of the deceased, petitioners have produced Exs.P9 to P15. A careful perusal of these documents, it reveals that Exs.P9 to P11 are pertains to the educational records and as per these documents, the deceased was a graduate of BBM. Ex.P12-Appointment Order of MEdRC Edu Tech., Hyderabad, Ex.P13 is the Appointment letter of Footprints Collateral Services Private Ltd., Exs.P14 and P15 are the Relieving letter of Foot prints and five pay slips. Apart from the evidence of PW1 with documents, the petitioners have also examined the employee of Footprints Collateral Services Pvt. Ltd. as PW2, who also endorsed about the avocation and salary of 13 MVC.6257/2013 SCCH-13 the deceased. He also produced Authorisation letter, his ID card, Appointment Letter of the deceased with salary breakup, Salary appraisal Letter, Pay slips, Break up salary, relieving letter and No due certificate at Exs.P19 to P26. Though, he was subjected to lengthy cross examination, nothing worth is elicited. A careful perusal of the evidence of PWs.1 and 2 with that of above referred documents, it reveals that prior to the accident, the deceased was working as a Coordinator at Footprints Collateral Services Pvt. Ltd. As per the resignation of the deceased, he was relieved from the service with effect from 31.08.13 as per Ex.P25. The Salary slips marked at Ex.P15 is of the year 2013 January to May 2013. PW2 has also produced Pay slips of the deceased from May 2013 to June 2013. Though, PW2 deposed that the salary of the deceased was hiked to Rs.10,269/-, but it is not recorded in the pay slips for the month of June 2013. Exs.P22 and P24 are pertains to Salary appraisal letter and break up salary, but according to these documents, the salary was not credited and it is not recorded in the pay slips. The 2nd respondent though disputed the salary 14 MVC.6257/2013 SCCH-13 of the deceased, but it has not produced any rebuttal evidence before the court. PW2 clearly deposed in the cross examination that the salary of the deceased is credited to Axis Bank account. In order to suspect the above referred documents, atleast, the 2nd respondent could have produce the Bank statement of the deceased or bank employer. Therefore, in the absence of any cogent evidence, this tribunal cannot believe the assertion of the 2nd respondent that the deceased was not having any earnings. The petitioners have produced Appointment Letter of MEdRC Edu Tech.Ltd. at Ex.P12, but they have not examined the employer or concerned authority to show that the deceased joined to the said company and he was paid the salary. In the absence of any such cogent evidence, this tribunal cannot believed the contention of the petitioners that the deceased was drawing salary of Rs.9,000/- p.m. excluding incentives. As per the Pay slips marked at Ex.P23, the last payslip for the month of July 2013, the salary of the deceased is Rs.8381/-. Therefore, this Tribunal feels to take the income of the deceased at Rs.83,81/- p.m or Rs.1,00,572/- p.a. 15 MVC.6257/2013 SCCH-13
13. Admittedly the deceased was an unmarried person expected to spend half of his income towards personal expenses. Therefore out of his yearly income of Rs.1,00,572/-, half (50%) of his income works out at Rs.50,286/- and Rs.50,286/- would be the yearly loss of dependency to the petitioners.
14. In the recent decision reported in Rajesh vs. Rajbir Singh - 2013 ACJ 1403 Hon'ble Apex court had added 50% of actual income for persons below 40 years Relevant para of the said decision reads thus:
Quantum-fatal accident-principles of assessment-future prospects-Whether formula for increase of income for future prospects adopted for persons with permanent jobs in Sarla Verma's case, 2009 ACJ 1298 (SC), may also be applied to persons who were self employed or were engaged on fixed wages - Held: yes; 50 per cent of actual income (after deduction of tax) for persons below 40 years; 30 per cent for age group of 40 to 50 years; 15 percent for age group of 50 to 60 years; but no addition thereafter.16 MVC.6257/2013
SCCH-13
15. In the instant case deceased was aged about 24 years and as per the aforesaid decision of Hon'ble Supreme Court, age group of below 40 years, the deceased is entitled for 50% addition towards future prospects. Annual income works out at Rs. 50,286 + 25,143 = Rs.75,429/-. Hence, Rs.75,429/- would be the yearly loss of dependency to the petitioners. The 2nd petitioner is the younger parent, ie., mother of the deceased, whose age is stated to be at 43 years. Therefore this tribunal feels to take age of petitioner No.2 as 43 years. According to the decision reported in Civil Appeal No.3483/2008 dated 15-4-2009 in Sarala Verma Vs. Delhi Transport Corporation, the multiplier applicable between the age group of 41 to 45 years is 14. Therefore, on taking the 14 multiplicand, the yearly loss of earning of Rs.75,429 X 14 = 10,56,006/- would be the loss of dependency to the petitioner, which is just and fair compensation.
16. LOSS OF ESTATE:- Having regard to the age and prospectus of the life of the deceased, this tribunal feel that it is just and proper to award Rs.20,000/- 17 MVC.6257/2013
SCCH-13 towards the loss of estate, which is the just and fair compensation.
17. LOSS OF LOVE AND AFFECTION:- Admittedly, the petitioners are the parents and sister of the deceased. Therefore, they have lost the love and affection of the deceased. Therefore this tribunal has no hesitation to award Rs. 9,000/- towards the loss of love and affection, which is just and fair compensation.
18. FUNERAL EXPENSES:- No doubt, there is no definite evidence on the record regarding transportation of dead body and funeral expenses, therefore, this tribunal feel that it is just and proper to award Rs.25,000/- towards the transportation of dead body and funeral expenses, which is just and fair compensation.
Thus, the petitioners are entitled for compensation under the following heads:-
1 Loss of Dependency Rs. 10,56,006/- 2 Loss of Estate. 20,000/-
3 Loss of love and affection 9,000/- 4 Funeral expenses 25,000/-
Total Rs.11,10,006/-
18 MVC.6257/2013
SCCH-13
Hence, this court feel it is just and proper to award the compensation of Rs.11,10,006/-to the petitioners, which is the just and fair compensation.
19. So far as interest is concerned, as per Sec.171 of Motor Vehicle Act tribunal in power act for grant of interest from date of claim at simple interest at such rate as deems reasonable. The Division Bench ruling of the Karnataka High Court in Managing Director, Karnataka Power Corporation Limited Vs. Geeta and the Division Bench ruling in P.Rama Devi Vs. C.B. Sai Krishna and others are of the view that the rate of interest to be awarded should be at the rate of 6%. In AIR 1994 Karn.8, it was observed that " Compensation is an amount paid in advance for any loss of life or loss of dependency or loss of earnings. It is not a debt. Therefore, the interest to be awarded under Section 110-CCC of the Motor Vehicles Act could only be at 6% per annum." Therefore, the petitioners are entitled for the interest at 6% per annum on the said amount from the date of the petition till deposit of the entire compensation amount. 19 MVC.6257/2013
SCCH-13
20. So far as liability is concerned, the fact of the policy was in force on the date of the accident is not in dispute.
The 2nd respondent has disputed its liability on the ground that the vehicle had not possess valid permit to ply the vehicle on the said road. Since, the 1st respondent has violated the terms and conditions of the policy, it cannot indemnify the risk. In support of its specific defence, the 2nd respondent has examined the RTO at Koramangala Sri.Halaswamy as RW2 who produced Permit of the offending vehicle at Ex.R1. Relying upon the evidence of RW2, the 2nd respondent contends that the owner has violated the terms and conditions of the policy.
In the light of oral and documentary evidence, let us ascertain whether the 2nd respondent can avoid its liability. While discussing in fore-going paras, this tribunal has come to the conclusion that the driver of the offending vehicle is negligent in causing the accident. The deceased is a 3rd party to the accident, because, when he was proceeding on his vehicle, he was hit by the offending vehicle. Admittedly, the 1st respondent has taken stage 20 MVC.6257/2013 SCCH-13 carriage permit to ply urban and rural area at Bengaluru and route permit from Begur to Gowribidanur via Hoskote between 6.15 a.m. to 7.30 p.m. which is valid from 2012 to 2017. Though, in the chief examination, RW2 deposed that K.R.Puram, Bengaluru is not covered under this route, for which, no document is produced before the court. Because, in the cross examination, he admits that K.R.Puram comes within the limits of Urban . When the witness has denied that to reach Devanahalli from Begur, vehicle should pass from K.R.Puram, 2nd respondent has not produced route map for the route permit obtained by the 1st respondent. If the route map is placed before the court, it could have clinched the issue whether to reach Devanahalli from Begur, the vehicle should pass K.R.Puram or not. As 1st respondent is permitted to use the vehicle in rural and in urban area, and in the absence of any route map, this tribunal cannot believe the assertion of the 2nd respondent that it is in violation of the terms and conditions of the policy. It is true that as per the permit, 1st respondent has taken stage carriage permit. As could be seen from the records, the bus was 21 MVC.6257/2013 SCCH-13 taken for marriage on contract. RW2 has deposed that special permit has not taken to use the vehicle as contract carriage.
Now, this tribunal has to ascertain whether the 2nd respondent can avoid its liability on this ground. As the deceased is a 3rd party to the accident, definitely, on this ground, the 2nd respondent cannot avoid its liability. If at all, the deceased was not a 3rd party, then this tribunal could have viewed in a different angle and could have contended that it is in violation of the permit. since, deceased is a 3rd party, the 2nd respondent cannot take such plea and avoid its liability. Therefore, for the fore- going reasons, this tribunal is of the opinion that the respondents NO.1 and 2 being the RC owner and insurer of the offending vehicle are jointly and severally liable to pay compensation. In view of the subsisting insurance policy, respondent No.2-insurance company alone shall deposit the compensation amount with interest in the court. Hence, I answer Issue No.3 accordingly.
21. Issue No.4. In view of my findings on issue No.1 to 3, I proceed to pass the following :- 22 MVC.6257/2013
SCCH-13 ORDER The petition filed by the petitioners under Sec.166 of M.V. Act. is partly allowed.
The respondent.1 & 2 are jointly and severally is liable to pay the compensation of Rs.11,10,006/-to the petitioners together with interest at the rate of Rs.6% p.a., from the date of the petition till deposit.
The 2nd respondent -insurance company shall deposit the compensation amount within two months from today.
After deposit of the compensation amount, Rs.50,000/- in the name of Petitioner No.3 shall be invested in for 5 years and Rs.1,50,000/- shall be released in her favour through account payee cheque on proper identification. Out of the remaining amount, petitioners NO.1 and 2 are entitled for equal shares, out of which , 40% each shall be invested in the names of the petitioners NO.1 and 2 and 60% each shall be released in their names through separate account payee cheques on proper identification. 23 MVC.6257/2013
SCCH-13 Advocate fee is fixed at Rs.1000/-. Draw award accordingly.
(Dictated to the Stenographer directly on computer, corrected, signed & pronounced in open court on 5th February 2015.) (B.PUSHPANJALI) II Addl. Small Causes Judge & XXVIII ACMM, Bengaluru.
ANNEXURE List of witnesses examined for petitioners :
PW.1 : Sri.K.Jagadeesh PW.2 : Sri.K.Nagendra M.
List of documents marked for petitioners :
Ex.P-1 : CC of FIR with complaint Ex.P-2 : Copy of statement of PW1 Ex.P-3 : Sketch Ex.P-4 : Mahazar Ex.P-5 : IMV Report Ex.P-6 : Inquest Report Ex.P-7 : PM report Ex.P-8 : Charge sheet Ex.P-9 : NC of SSLC Marks card of deceased
(Compared with original and returned back to the witness) Ex.P-10 : NC of PUC Marks card of deceased (Compared with original and returned back to the witness) Ex.P-11 : NC of BBM marks Card (Compared with original and returned back to the witness) 8 in Nos.
Ex.P-12 : Appointment Order of MEdRC Edu Tech
24 MVC.6257/2013
SCCH-13
Ex.P-13 : Appointment Order of Footprints
Ex.P-14 : Relieving letter of Foot Prints
Ex.P-15 : Pay Slips (5 in Nos)
Ex.P-16 : NC of Ration Card (Compared with original
and returned back to the witness)
Ex.P-17 : NC of Aadhaar of deceased and 1st
petitioner (Compared with original and returned back to the witness) Ex.P-18 : NC of Election Id card of petitioners NO.2 and 3 (Compared with original and returned back to the witness) Ex.P-19 : Authorisation Letter Ex.P-20 : NC of ID card of PW2 (Compared with original and returned back to the witness) Ex.P-21 : Appointment letter of deceased with salary breakup Ex.P-22 : Salary appraisal letter Ex.P-23 : Pay slips Ex.P-24 : Beak up salary Ex.P-25 : Relieving letter Ex.P-26 : No due certificate List of witnesses & documents for respondents :
R.W.1 : Sri.Siddiq Pasha
R.W.2 : Sri.Halaswamy
R.W.3 : Sri.Chidanand P
Ex.R.1 : Copy of Permit
Ex.R.2 : Copy of Policy.
(B.PUSHPANJALI)
II Addl.Small Causes Judge &
XXVIII ACMM, Bengaluru.