Bangalore District Court
Have Filed Their Respective Petitions ... vs No.1 And 3 And Later on 23 April, 2015
THE COURT OF THE IX ADDL. SMALL CAUSES AND ADDL.
MACT., BANGALORE, (SCCH-7)
Dated this, the 23rd day of April, 2015.
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.906/2013
C/w. M.V.C.No.907/2013 and M.V.C.No.908/2013
1. Sri.G.K.Nanjundappa, ..... PETITIONERS IN
S/o Chikklappa, MVC.No.906/2013
Aged about 53 years.
2. Smt.Padmamma,
W/o G.K.Nanjundappa,
Aged about 45 years.
Both are residing at Guttahalli Village,
Belamaranahalli Post,
Narasapura Hobli,
Kolar Taluk and District.
(By Sri. A.S.Girish, Adv.,)
V/s
1.Shree V.K.R. Engineering, .... RESPONDENTS IN
No.31, Chennasandra Village, M.V.C.NO.906/2013
Ramaiah Colony, Avalahalli C.M. Road,
Bangalore-56.
(Owner of Lorry bearing
Reg.No.KA-53-A-3519)
2. ICICI Lombard General Insurance
Co.Ltd.,
No.89, SVR Complex,
SCCH-7 2 MVC .906/13 C/w 907 & 908/13.
Hosur Main Road, Madivala,
Bangalore.
(Owner of Lorry bearing
No.KA-53-A-3519)
3. Neelamani Parmar,
No.11, Reva Residency, 7th Main,
14th Cross, BTM 2nd Stage,
Bangalore-76.
(Owner of Car bearing
No.KA-03-MA-8182)
(R-1 Exparte)
(R-2 By Smt. R. Sharadamaba, Adv.,)
(R-3 Exparte)
Sri.Ramesh C.N., PETITIONER IN
S/o Narayana Swamy, MVC.NO.907/2013
Aged about 29 years,
R/at Chalapana Halli,
Hosakote Taluk,
Bangalore.
(By Sri. A.S.Girish, Adv.,)
V/S
1.Shree V.K.R.Engineering,
...RESPONDENTS IN
No.31, Chennasandra Village,
M.V.C.NO.907/2013
Ramaiah Colony, Avalahalli C.M. Road,
Bangalore-56.
(Owner of Lorry bearing
Reg.No.KA-53-A-3519)
2. ICICI Lombard General Insurance
Co.Ltd.,
No.89, SVR Complex,
Hosur Main Road, Madivala,
SCCH-7 3 MVC .906/13 C/w 907 & 908/13.
Bangalore.
(Owner of Lorry bearing No.KA-53-A-
3519)
3. Neelamani Parmar,
No.11, Reva Residency, 7th Main,
14th Cross, BTM 2nd Stage,
Bangalore-76.
(Owner of Car bearing
No.KA-03-MA-8182)
(R-1 Exparte)
(R-2 By Smt. R. Sharadamaba, Adv.,)
(R-3 Exparte)
1. Smt.Shilpa, ....PETITIONERS IN
W/o Late Ravikumar, M.V.C.NO.908/2013
Aged about 23 years.
2. Master Vikranth,
S/o Late Ravikumar,
Aged about 3 years.
3.Ramachandrappa,
S/o Muniyappa,
Aged about 50 years.
4. Smt.Rathnamma,
W/o Ramachandrappa,
Aged about 40 years.
5.Master Vishwas,
S/o Late Ravikumar,
Aged about 1 year.
Since Petitioner No.2 and 5 are Minors
Represented by their mother and natural
Guardian Smt.Shilpa.
All are residing at Doddanallura halli,
Hosakote Taluk,
SCCH-7 4 MVC .906/13 C/w 907 & 908/13.
Bangalore Rural District.
(By Sri. A.S.Girish, Adv.,)
V/S
1.Shree V.K.R. Engineering, ....RESPONDENTS IN
No.31, Chennasandra Village, M.V.C.NO.908/2013.
Ramaiah Colony, Avalahalli C.M. Road,
Bangalore-56.
(Owner of Lorry bearing
Reg.No.KA-53-A-3519)
2. ICICI Lombard General Insurance
Co.Ltd.,
No.89, SVR Complex,
Hosur Main Road, Madivala,
Bangalore.
(Owner of Lorry bearing No.KA-53-A-
3519)
3. Neelamani Parmar
No.11, Reva Residency, 7th Main,
14th Cross, BTM 2nd Stage,
Bangalore-76.
(Owner of Car bearing
No.KA-03-MA-8182)
(R-1 Exparte)
(R-2 By Smt. R. Sharadamaba, Adv.,)
(R-3 Exparte)
COMMON JUDGMENT
As per the Order dated 15.09.2014 passed on Memo in
M.V.C.No.906/2013, M.V.C.No.907/2013 and
M.V.C.No.908/2013 are clubbed with the said
SCCH-7 5 MVC .906/13 C/w 907 & 908/13.
M.V.C.No.906/2013 and the common evidence is recorded in the
said case. Hence, M.V.C.No.906/2013, M.V.C.No.907/2013 and
M.V.C.No.908/2013, are pending for consideration and disposal
before this Tribunal by passing a common judgment.
2. It is pertinent to note here that, initially, all the
Petitioners have filed their respective petitions only as against the
Respondent No.1 and 3 and later, as per the Order dated
16.04.2014 passed on I.A.No.IV under Order 1 Rule 10 of C.P.C.
filed by them, the Respondent No.3 is impleaded as party to all the
proceedings.
3. The Petitioners No.1 and 2 in M.V.C.No.906/2013 have
filed the said petition as against the Respondents No.1 to 3 under
Section 163-A of the Motor Vehicles Act, 1989 praying to award
compensation of Rupees 15,00,000/- with interest at the rate of
12% p.a. from the date of filing of this petition till its realization
with costs, in respect of death of SATISH S/o Late
G.K.Nanjundappa.
4. The brief averments of the Petitioners' case in M.V.C.
No.906/2013 are as follows;
a) On 17.12.2012 at about 9.50 p.m., when he was
proceeding in a Car bearing No.KA-03-MA-8182 on Hosakote
Jangamankote Road from Jangamankote proceeding towards
Hosakote and the driver of Car driving slowly cautiously observing
traffic rules and regulations and when they reached near
Soonadenahalli Village, at that time, a Lorry bearing No.KA-53-A-
3519 by its driver, who driving his Lorry in a rash and negligent
SCCH-7 6 MVC .906/13 C/w 907 & 908/13.
manner with high speed, suddenly applied brake and came to his
extreme right side of the road, due to driver of the Car not able to
avoid the accident and dashed to the back portion of the Lorry.
Due to sudden impact, Satishkumar and other occupants
sustained fatal injuries in the accident and Satishkumar and
Ravikumar were died on the spot. The body was shifted to
Hosakote Government Hospital, wherein, post-mortem was
conducted and later, body was handed over to them.
b) So far they spent more than Rupees 50,000/- towards
the transportation of dead body and for funeral obsequies of the
deceased.
c) 1st Petitioner is the father and 2nd Petitioner is the
mother of the deceased. As on the date of accident, Sri.
SatishKumar was aged about 23 years and working as a driver
and earning Rupees 3,300/- per month and contributing his
entire earnings towards the welfare of the family. The deceased
was the only earning member of the family and they are depending
on the income of the deceased.
d) The accident is occurred only due to the rash and
negligent driving of the driver of Lorry bearing No.KA-53-A-3519.
The Hosakote Police have registered a case against the driver of
Lorry bearing No.KA-53-3519 in question.
e) 1st Respondent is the owner and 2nd Respondent is the
insurer of Lorry bearing No.KA-53-A-3519 and as on the date of
accident, policy is in force. Hence, they claim a global
compensation of Rupees 15,00,000/- from both the Respondents.
Hence, this Petition.
SCCH-7 7 MVC .906/13 C/w 907 & 908/13.
5. Though the notice was duly served on the Respondent
No.1, he was remained absent and hence, he is placed as exparte
on 09.04.2013.
6. Initially, though the notice was duly served on the
Respondent No.2, it was remained absent and hence, it was
placed as exparte on 09.04.2013. Later, the Respondent No.2 has
appeared before this Tribunal through its Learned Counsel and as
per the Order dated 07.05.2013 on I.A.No.I, 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
26.08.2013 passed on I.A.No.II and Order dated 28.10.2013
passed on I.A.No.III, the written statement and the additional
written statement filed by the Respondent No.2 are taken on file.
7. Though the notice was duly served on the Respondent
No.3 by way of affixture, she was remained absent and hence, she
is placed as exparte on 02.09.2014.
8. The Respondent No.2 inter-alia denying the entire case
of the Petitioners in M.V.C.No.906/2013 in its written statement,
has further contended as follows;
a) The petition filed by the Petitioner is vexatious and
frivolous, so also, it is contrary to law and facts of the case.
b) Without admitting the alleged accident and its liability,
it submits that, as on the date of the alleged accident, the said
Lorry bearing registration No.KA-53-A-3519 was not insured with
it.
SCCH-7 8 MVC .906/13 C/w 907 & 908/13.
c) The Lorry bearing registration No.KA-53-A-5319 was
not at all involved in an accident at all and there is no negligence
on the part of the driver of the Lorry. As on the date, the Hoskote
Police have not filed Charge Sheet and the entire negligence is on
the part of the driver of the Car. Hence, it may be deleted from the
claim petition.
d) If the Police were to file a charge sheet against the
driver of the Lorry, it is the burden of the Petitioners to prove that,
the said vehicle was validly insured and the same was in force as
on the date of accident.
e) The driver of the vehicle Lorry bearing No.KA-53-A-
3519 was not in possession of valid driving licence to drive the
said class of vehicle, the insured being a owner of the said vehicle
without taking proper care and caution, knowingly he allowed to
drive the same, hence, there is violation of policy condition, it may
be exonerated for its liability.
f) The said vehicle Lorry being a commercial vehicle, the
same was plied without there being a valid permit and fitness
certificate.
g) As per the complaint and FIR, it is clear that, the
driver of the Lorry was proceeding in front, the driver of the Car
drove the same in high speed with rash and negligent manner
without maintaining the distance between the vehicles went and
dashed against the Lorry, the same is supported by another
document Motor Vehicles Report.
SCCH-7 9 MVC .906/13 C/w 907 & 908/13.
h) As per the M.V. Report, the Car front shape was
completely damaged, wind shield glass, head lights, front
bumper, radiator, AC conductor dash board, stereo system, front
both seat, wind shield etc., but, as far as the Lorry is concerned,
only rear both tall lamp damaged and rear chassis bumper
damaged. This clearly shows that, the entire negligence to cause
the accident is on the part of the driver of the Car.
i) As per spot panchanama prepared by the Police, it is
clear that, the accident took place at night 9.50 p.m., the said spot
is meant for parking of Tanker Lorries shed, the said road runs
from North to South with a width of 20 feet tar road, the driver of
the said car drove the same in high speed and dashed against the
Lorry, where he ought to have parked due to said impact, the
banner of the Car went inside the Lorry, looking into these facts, it
is clear that, the driver of the Car was in very high speed and also
on rash and negligent.
j) There is one day delay in lodging complaint, no cogent
reasons are forth coming.
k) The Respondent No.1 has not informed about the said
accident and he has not furnished the particulars of policy to it as
statutorily contemplated under Section 134(c) of the M.V. Act. The
Petition is liable to be dismissed due to non-compliance of Section
158(6) of the M.V. Act, petitioner only to fetch compensation, he
created the said document in collusion with Police.
l) Its liability if any, shall be as per the conditions of
insurance policy issued against the said vehicle and the insured is
SCCH-7 10 MVC .906/13 C/w 907 & 908/13.
obligated to satisfy and act in accordance with Section 3 and 65 of
M.V. Act, 1988 and Rule 3 of the Central Motor Vehicles Act.
m) The liability of it if any, is subject to limitation and
provision of the Motor Vehicles Act and terms and conditions of
the policy of insurance issued to the owner of the vehicle and
compliance under section 64 V B of the Insurance Act.
n) The Petitioners should prove that, they are only the
legal heirs of the deceased. The Petitioners are to prove the same
by strict documentary evidence.
o) It craves leave of this Hon'ble Tribunal to file an
application Under Section 170(a) and (b) of the Act, in the event,
1st Respondent fails to contest the petition on merits were to
collude with the claimants, it may please be permitted to avail all
the defences available to the 1st Respondent and also be permitted
to avail the defence available under sections 147 and 149(2) of the
Motor Vehicles Act.
p) The Petitioner is called upon to state on oath that, they
have not filed any other claim petition for the alleged accident
before any Tribunal in any other place, seeking compensation.
q) In the event of any award is passed against it, the rate
of interest may kindly be awarded not more than 6% p.a., as per
the law laid down by the Hon'ble High Court of Karnataka.
r) The compensation claimed by the Petitioners a sum of
Rupees 15,00,000/- with interest is highly excessive, un
reasonable and disproportionate. Hence, prayed to dismiss the
petition with costs.
SCCH-7 11 MVC .906/13 C/w 907 & 908/13.
9. The contents of the Additional written statement filed
by the Respondent No.2 are as follows;
a) On investigation, Hoskote police, Bangalore Rural, on
detailed investigation, filed a charge sheet against the drivers of
both the vehicles, like, Car and Lorry assuming that, Police have
filed the charge sheet against the driver of the Lorry, but, looking
into the documents, it is very clear that, the entire negligence in
causing the accident is on the part of the driver of the Car. Hence,
this petition be dismissed against the Insurance Company.
b) The Claim petition is not maintainable on the ground
of non-joinder of necessary parties to the claim petition. Even
though the charge sheet is filed against the drive of the Car,
Petitioners are not chosen to array the insured and insurer of the
Car bearing No.KA-03-MA-8182. Hence, prayed to dismiss the
petition against it.
10. The Petitioner in M.V.C.No.908/2013 has filed the said
petition as against the Respondents No.1 to 3 under Section 166
of the Motor Vehicles Act, 1989 praying to award compensation of
Rupees 25,00,000/- with interest at 12% p.a. from the date of
filing of this petition till its realiszation, with costs.
11. The brief averments of the Petitioners' case in M.V.C.
No.907/2013 are as follows;
a) On 17.12.2012 at about 9.50 p.m., when he was
proceeding in a Car bearing No.KA-03-MA-8182 on Hosakote
Jangamakote Road from Jangamakote proceeding towards
Hosakote and the driver of Car driving slowly cautiously observing
SCCH-7 12 MVC .906/13 C/w 907 & 908/13.
traffic rules and regulations and when they reached near
Sonndenahalli Village, at that time, a Lorry bearing No.KA-53-A-
3519 by its driver, who driving his Lorry in a rash and negligent
manner with high speed, suddenly applied brake and came to his
extreme right side of the road, due to driver of the Car not able to
avoid the accident and dashed to the back portion of the Lorry.
Due to sudden impact, he and other occupants sustained fatal
injuries and in the accident, Satishkumar and Ravikumar were
died on the spot.
b) Immediately, he was shifted to MVJ College and
Research Hospital, wherein first aid was taken and then shifted to
NIMHANS, wherein, necessary investigation and CT Scans were
done and those reveals that, he sustained severe head injury and
again shifted to MVJ Hospital and Research Hospital, wherein,
taken treatment as an inpatient for a day, then again shifted to
Abhaya Hospital, where he was admitted as an inpatient from
18.12.2012 to 29.12.2012, during the course of treatment, it was
diagnosed that, he has sustained diffuse axonal injury with
fracture, left zygomatic arch fracture and he underwent ORIF of
left zygomatic complex and discharged from the Hospital with
advise to attend for regular follow-up, which he did.
c) He had spent around Rupees 2,00,000/- towards
hospitalization and other incidental charges and still required
removal of implants and continuous medication to avoid
complication.
d) Prior to the accident, he was aged about 29 years and
working as driver and earning more than Rupees 12,000/- and he
SCCH-7 13 MVC .906/13 C/w 907 & 908/13.
is still under complete bed rest and he is unable to continue his
profession, hence, sustained loss of income.
e) Even after better treatment also, he is still suffering
from pain, agony, mental strain, not able to walk independently,
loss of memory, not able to open his eyes for light, not able to
chew food and these accidental injuries caused him permanent
disability.
f) The accident is occurred only due to the rash and
negligent driving of the driver of Lorry bearing No.KA-53-A-3519.
The Hosakote Police registered a case against the driver of Lorry
bearing No.KA-53-3519 in question.
g) 1st Respondent is the owner and 2nd Respondent is
insurer of Lorry bearing No.KA-53-A-3519 and as on the date of
accident policy is in force. Hence, he claims a global compensation
of Rupees 15,00,000/- from both the Respondents. Hence, this
Petition.
12. Though the notice was duly served on the Respondent
No.1, he was remained absent and hence, he is placed as exparte
on 09.04.2013.
13. Initially, though the notice was duly served on the
Respondent No.2, it was remained absent and hence, it was
placed as exparte on 09.04.2013. Later, the Respondent No.2 has
appeared before this Tribunal through its Learned Counsel and as
per the Order dated 07.05.2013 on I.A.No.I, 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
SCCH-7 14 MVC .906/13 C/w 907 & 908/13.
not filed the written statement. Later, as per the Order dated
26.08.2013 passed on I.A.No.II and Order dated 28.10.2013
passed on I.A.No.III, the written statement and the additional
written statement filed by the Respondent No.2 are taken on file.
14. Though the notice was duly served on the Respondent
No.3 by way of affixture, she was remained absent and hence, she
is placed as exparte on 02.09.2014.
15. The Respondent No.2 inter-alia denying the entire case
of the Petitioners in M.V.C.No.906/2013 in its written statement,
has further contended as follows;
a) The petition filed by the Petitioner is vexatious and
frivolous, so also, it is contrary to law and facts of the case.
b) Without admitting the alleged accident and its liability,
it submits that, as on the date of the alleged accident, the said
Lorry bearing registration No.KA-53-A-3519 was not insured with
it.
c) The Lorry bearing registration No.KA-53-A-5319 was
not at all involved in an accident at all and there is no negligence
on the part of the driver of the Lorry. As on the date, the Hoskote
Police have not filed Charge Sheet and the entire negligence is on
the part of the driver of the Car. Hence, it may be deleted from the
claim petition.
d) If the Police were to file a charge sheet against the
driver of the Lorry, it is the burden of the Petitioners to prove that,
SCCH-7 15 MVC .906/13 C/w 907 & 908/13.
the said vehicle was validly insured and the same was in force as
on the date of accident.
e) The driver of the vehicle Lorry bearing No.KA-53-A-
3519 was not in possession of valid driving licence to drive the
said class of vehicle, the insured being a owner of the said vehicle
without taking proper care and caution, knowingly he allowed to
drive the same, hence, there is violation of policy condition, it may
be exonerated for its liability.
f) The said vehicle Lorry being a commercial vehicle, the
same was plied without there being a valid permit and fitness
certificate.
g) As per the complaint and FIR, it is clear that, the
driver of the Lorry was proceeding in front, the driver of the Car
drove the same in high speed with rash and negligent manner
without maintaining the distance between the vehicles went and
dashed against the Lorry, the same is supported by another
document Motor Vehicles Report.
h) As per the M.V. Report, the Car front shape was
completely damaged, wind shield glass, head lights, front
bumper, radiator, AC conductor dash board, stereo system, front
both seat, wind shield etc., but, as far as the Lorry is concerned,
only rear both tall lamp damaged and rear chassis bumper
damaged. This clearly shows that, the entire negligence to cause
the accident is on the part of the driver of the Car.
i) As per spot panchanama prepared by the Police, it is
clear that, the accident took place at night 9.50 p.m., the said spot
is meant for parking of Tanker Lorries shed, the said road runs
SCCH-7 16 MVC .906/13 C/w 907 & 908/13.
from North to South with a width of 20 feet tar road, the driver of
the said car drove the same in high speed and dashed against the
Lorry, where he ought to have parked due to said impact, the
banner of the Car went inside the Lorry, looking into these facts, it
is clear that, the driver of the Car was in very high speed and also
on rash and negligent.
j) There is one day delay in lodging complaint, no cogent
reasons are forth coming.
k) The Respondent No.1 has not informed about the said
accident and he has not furnished the particulars of policy to it as
statutorily contemplated under Section 134(c) of the M.V. Act. The
Petition is liable to be dismissed due to non-compliance of Section
158(6) of the M.V. Act, petitioner only to fetch compensation, he
created the said document in collusion with Police.
l) Its liability if any, shall be as per the conditions of
insurance policy issued against the said vehicle and the insured is
obligated to satisfy and act in accordance with Section 3 and 65 of
M.V. Act, 1988 and Rule 3 of the Central Motor Vehicles Act.
m) The liability of it if any, is subject to limitation and
provision of the Motor Vehicles Act and terms and conditions of
the policy of insurance issued to the owner of the vehicle and
compliance under section 64 V B of the Insurance Act.
n) It craves leave of this Hon'ble Tribunal to file an
application Under Section 170(a) and (b) of the Act, in the event,
1st Respondent fails to contest the petition on merits were to
collude with the claimants, it may please be permitted to avail all
SCCH-7 17 MVC .906/13 C/w 907 & 908/13.
the defences available to the 1st Respondent and also be permitted
to avail the defence available under sections 147 and 149(2) of the
Motor Vehicles Act.
o) The Petitioner is called upon to state on oath that, they
have not filed any other claim petition for the alleged accident
before any Tribunal in any other place, seeking compensation.
p) In the event of any award is passed against it, the rate
of interest may kindly be awarded not more than 6% p.a., as per
the law laid down by the Hon'ble High Court of Karnataka.
q) The compensation claimed by the Petitioners a sum of
Rupees 15,00,000/- with interest is highly excessive, un
reasonable and disproportionate. Hence, prayed to dismiss the
petition with costs.
16. The contents of the Additional written statement filed
by the Respondent No.2 are as follows;
a) On investigation, Hoskote police, Bangalore Rural, on
detailed investigation, filed a charge sheet against the drivers of
both the vehicles, like, Car and Lorry assuming that, Police have
filed the charge sheet against the driver of the Lorry, but, looking
into the documents, it is very clear that, the entire negligence in
causing the accident is on the part of the driver of the Car. Hence,
this petition be dismissed against the Insurance Company.
b) The Claim petition is not maintainable on the ground
of non-joinder of necessary parties to the claim petition. Even
though the charge sheet is filed against the drive of the Car,
Petitioners are not chosen to array the insured and insurer of the
SCCH-7 18 MVC .906/13 C/w 907 & 908/13.
Car bearing No.KA-03-MA-8182. Hence, prayed to dismiss the
petition against it.
17. It is pertinent to note here that, initially, the Petitioners
No.1 to 4 had filed M.V.C.No.908/2013 as against the
Respondents No.1 and 2 and during the pendency of the said
petition, as per the Order dated 18.09.2014 passed on I.A.No.VII
under Order 1 Rule 10 R/w Section 151 of C.P.C., the Petitioner
No.5 is impleaded as party to the said petition.
18. The Petitioners No.1 to 5 in M.V.C.No.908/2013 have
filed the said petition as against the Respondents No.1 to 3 under
Section 166 of the Motor Vehicles Act, 1989 praying to award
compensation of Rupees 15,00,000/- with interest at the rate of
12% p.a. from the date of filing of this petition till its realiszation,
with costs.
19. Though the notice was duly served on the Respondent
No.1, he was remained absent and hence, he is placed as exparte
on 09.04.2013.
20. Initially, though the notice was duly served on the
Respondent No.2, it was remained absent and hence, it was
placed as exparte on 09.04.2013. Later, the Respondent No.2 has
appeared before this Tribunal through its Learned Counsel and as
per the Order dated 07.05.2013 on I.A.No.I, 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
26.08.2013 passed on I.A.No.II and Order dated 28.10.2013
SCCH-7 19 MVC .906/13 C/w 907 & 908/13.
passed on I.A.No.III, the written statement and the additional
written statement filed by the Respondent No.2 are taken on file.
21. Though the notice was duly served on the Respondent
No.3 by way of affixture, she was remained absent and hence, she
is placed as exparte on 02.09.2014.
22. The Respondent No.2 inter-alia denying the entire case
of the Petitioners in M.V.C.No.906/2013 in its written statement,
has further contended as follows;
a) The petition filed by the Petitioners is vexatious and
frivolous, so also, it is contrary to law and facts of the case.
b) Without admitting the alleged accident and its liability,
it submits that, as on the date of the alleged accident, the said
Lorry bearing registration No.KA-53-A-3519 was not insured with
it.
c) The Lorry bearing registration No.KA-53-A-5319 was
not at all involved in an accident at all and there is no negligence
on the part of the driver of the Lorry. As on the date, the Hoskote
Police have not filed Charge Sheet and the entire negligence is on
the part of the driver of the Car. Hence, it may be deleted from the
claim petition.
d) The claim petition is not at all maintainable, the
driver/deceased was driving the vehicle, the accident took place
due to negligent driving of the deceased.
SCCH-7 20 MVC .906/13 C/w 907 & 908/13.
e) If the Police were to file a charge sheet against the
driver of the Lorry, it is the burden of the Petitioners to prove that,
the said vehicle was validly insured and the same was in force as
on the date of accident.
f) The driver of the vehicle Lorry bearing No.KA-53-A-
3519 was not in possession of valid driving licence to drive the
said class of vehicle, the insured being a owner of the said vehicle
without taking proper care and caution, knowingly he allowed to
drive the same, hence, there is violation of policy condition, it may
be exonerated for its liability.
g) The said vehicle Lorry being a commercial vehicle, the
same was plied without there being a valid permit and fitness
certificate.
h) As per the complaint and FIR, it is clear that, the
driver of the Lorry was proceeding in front, the driver of the Car
drove the same in high speed with rash and negligent manner
without maintaining the distance between the vehicles went and
dashed against the Lorry, the same is supported by another
document Motor Vehicles Report.
i) As per the M.V. Report, the Car front shape was
completely damaged, wind shield glass, head lights, front
bumper, radiator, AC conductor dash board, stereo system, front
both seat, wind shield etc., but, as far as the Lorry is concerned,
only rear both tall lamp damaged and rear chassis bumper
damaged. This clearly shows that, the entire negligence to cause
the accident is on the part of the driver of the Car.
SCCH-7 21 MVC .906/13 C/w 907 & 908/13.
j) As per spot panchanama prepared by the Police, it is
clear that, the accident took place at night 9.50 p.m., the said spot
is meant for parking of Tanker Lorries shed, the said road runs
from North to South with a width of 20 feet tar road, the driver of
the said car drove the same in high speed and dashed against the
Lorry, where he ought to have parked due to said impact, the
banner of the Car went inside the Lorry, looking into these facts, it
is clear that, the driver of the Car was in very high speed and also
on rash and negligent.
k) There is one day delay in lodging complaint, no cogent
reasons are forth coming.
l) The Respondent No.1 has not informed about the said
accident and he has not furnished the particulars of policy to it as
statutorily contemplated under Section 134(c) of the M.V. Act. The
Petition is liable to be dismissed due to non-compliance of Section
158(6) of the M.V. Act, petitioner only to fetch compensation, he
created the said document in collusion with Police.
m) Its liability if any, shall be as per the conditions of
insurance policy issued against the said vehicle and the insured is
obligated to satisfy and act in accordance with Section 3 and 65 of
M.V. Act, 1988 and Rule 3 of the Central Motor Vehicles Act.
n) The liability of it if any, is subject to limitation and
provision of the Motor Vehicles Act and terms and conditions of
the policy of insurance issued to the owner of the vehicle and
compliance under section 64 V B of the Insurance Act.
SCCH-7 22 MVC .906/13 C/w 907 & 908/13.
o) It craves leave of this Hon'ble Tribunal to file an
application Under Section 170(a) and (b) of the Act, in the event,
1st Respondent fails to contest the petition on merits were to
collude with the claimants, it may please be permitted to avail all
the defences available to the 1st Respondent and also be permitted
to avail the defence available under sections 147 and 149(2) of the
Motor Vehicles Act.
p) The Petitioners are called upon to state on oath that,
they have not filed any other claim petition for the alleged accident
before any Tribunal in any other place, seeking compensation.
q) In the event of any award is passed against it, the rate
of interest may kindly be awarded not more than 6% p.a., as per
the law laid down by the Hon'ble High Court of Karnataka.
r) The compensation claimed by the Petitioners a sum of
Rupees 30,00,000/- with interest is highly excessive, un
reasonable and disproportionate. Hence, prayed to dismiss the
petition with costs.
23. The contents of the Additional written statement filed
by the Respondent No.2 are as follows;
a) On investigation, Hoskote police, Bangalore Rural, on
detailed investigation, filed a charge sheet against the drivers of
both the vehicles, like, Car and Lorry assuming that, Police have
filed the charge sheet against the driver of the Lorry, but, looking
into the documents, it is very clear that, the entire negligence in
causing the accident is on the part of the driver of the Car. Hence,
this petition be dismissed against the Insurance Company.
SCCH-7 23 MVC .906/13 C/w 907 & 908/13.
b) The Claim petition is not maintainable on the ground
of non-joinder of necessary parties to the claim petition. Even
though the charge sheet is filed against the drive of the Car,
Petitioners are not chosen to array the insured and insurer of the
Car bearing No.KA-03-MA-8182. Hence, prayed to dismiss the
petition against it.
24. Based on the above said pleadings, my Learned
Predecessor-in-Office has framed the following Issues in all the
cases and I have framed Additional Issue in M.V.C.No.906.2013;
ISSUES
In M.V.C.No.906/2013
1. Whether the Petitioners prove that, they
are the dependents or legal
representatives of deceased Sri.SATISH?
2. Whether the Petitioners prove that, the
accident occurred due to rash and
negligent driving of the Lorry bearing
Reg.No.KA--53-A-3519 by its driver and
in the said accident, Sri.SATISH S/o
G.K.Nanjundappa died?
3. Whether the Petitioners are entitled for
compensation? If so, how much and from
whom?
4. What Order or Award?
ADDITIONAL ISSUE
Whether the Petitioners prove that, due to
the accident arising out of the use of the
Car bearing Reg.No.KA-03-MA-8182 and
Lorry bearing Reg.No.KA--53-A-3519, the
SCCH-7 24 MVC .906/13 C/w 907 & 908/13.
accident occurred and in the said
accident, Sri.SATISH S/o
G.K.Nanjundappa died?
In M.V.C.No.907/2013
1. Whether the Petitioner proves that, the
accident occurred due to rash and
negligent driving of the Lorry bearing
Reg.No.KA-53-A-3519 by its driver and in
the said accident, the Petitioner sustained
injuries?
2. Whether the Petitioner is entitled for
compensation? If so, how much and from
whom?
3. What Order or Award?
In M.V.C.No.908/2013
1. Whether the Petitioners prove that, they are
the dependents or legal representatives of
deceased Sri.RAVIKUMAR?
2. Whether the Petitioners prove that, the
accident occurred due to rash and negligent
driving of the Lorry bearing Reg.No.KA-53-
A-3519 by its driver and in the said
accident, Sri.RAVIKUMAR S/o
Ramachandrappa died?
3. Whether the Petitioners are entitled for
compensation? If so, how much and from
whom?
4. What Order or Award?
25. In order to prove their case, the Petitioners in
M.V.C.No.906/2013 have examined the Petitioner No.1 as P.W.1
and the Petitioner in M.V.C.No.907/2013 himself has been
SCCH-7 25 MVC .906/13 C/w 907 & 908/13.
examined as P.W.2 and the Petitioners in M.V.C.No.908/2013
have examined the Petitioner No.1 as P.W.3, by filing the affidavits
as their examination-in-chief and have placed reliance upon
Ex.P.1 to Ex.P.11, Ex.P.12 to Ex.P.18 and Ex.P.19 to Ex.P.25,
respectively. On the other hand, the Respondent No.2 has
examined its Manager-Legal as R.W.1 by filing an affidavit as his
examination-in-chief and no documents got marked on its behalf.
26. Heard the arguments.
27. In support of the submission, the Learned Counsel
appearing for the Petitioners Sri.A.S.Girish has placed reliance
upon the decisions reported in,
i) 2008 ACJ 1165 (SUPREME COURT OF INDIA)
(T.O. Anthony V/s Karvarnan and Others), wherein, it is
observed that,
Negligence - Contributory negligence - Head - on
collision between a Corporation bus and private
bus coming from opposite directions and driver of
Corporation bus sustained injuries - Injured stated
that, he was driving his bus at moderate speed on
the correct side of his road an private bus came on
to the wrong side and dashed against his bus-
Distance of accident spot from northern and
southern edges of tar road as per Mahazar showed
that, Corporation bus was on the correct side of its
road and private bus came partly to the wrong side
- Evidence that, injured neither slowed down his
bus nor swerved to his left - Tribunal held that,
both the drivers were equally negligent and the
finding was upheld in appeal - Apex Court
modified the blameworthiness of the two drivers
from 50:50 to 75:25 for private bus driver and
Corporation bus driver.
SCCH-7 26 MVC .906/13 C/w 907 & 908/13.
Quantum - Injury - Leg - Fracture of right femur -
Injured driver of bus suffered partial permanent
disability - Tribunal assessed Rupees 15,000/- for
medical expenses, Rupees 5,000/- for loss of
income, Rupees 5,000/- for pain and suffering,
Rupees 50,000/- for loss of earning capacity and
Rupees 3,500/- for attendant, transport,
nourishment; total Rupees 78,500/- But, awarded
Rupees 39,250/- due to contributory negligence -
High Court in appeal further allowed Rupees
5,000/- for pain and suffering and Rupees
74,800/- for loss of earning capacity and enhanced
the award by Rupees 39,900/- - Apex Court upheld
the total assessment of Rupees 1,58,300/- But,
deducted 25 percent for contributory negligence
and allowed Rupees 1,18,725/-.
Quantum - Interest - Tribunal allowed interest at
the rate of 12 percent per annum from the date of
claim application till realisation - Apex Court and
High Court allowed interest on additional
compensation at 9 percent per annum.
Words and phrases - Composite negligence - What
is - Where a person is injured as a result of
negligence of two or more wrongdoers - Each
wrong doer is jointly and severally liable to the
injured for payment of entire damages and the
injured has choice of proceeding against all or any
of them.
Word and phrases - Contributory negligence -
What is - Where a person suffers injury, partly due
to negligence of another person or persons, and
partly by his own negligence, then negligence on
the part of the injured is referred to as his
contributory negligence - Claim of injured for
damages is not defeated by reason of his own
negligence But, the damages stand reduced in
proportion of his contributory negligence.
SCCH-7 27 MVC .906/13 C/w 907 & 908/13.
ii) ILR 2011 KAR 4845 (North East Karnataka Road
Transport Corporation V/s Smt. Vijayalaxmi and Others),
wherein, it is observed that,
(A) MOTOR VEHICLES ACT, 1988, SECTION
123(2) - Riding on running board, etc., -
Contributory negligence - A pure question of fact -
Governing principles - HELD, The question of
contributory negligence does not depend upon any
breach of duty as between the Plaintiff and the
Defendant. All that, the Defendant is obliged to
prove is that, the Plaintiff failed to take reasonable
precautions for his own safety in respect of the
particular danger which in fact occurred, so that,
he thereby contributed to his own injury. This
however is not to say that, in all cases the Plaintiff
who is guilty of contributory negligence owes to the
Defendant no duty to act carefully. The governing
principle is that, the Defendant must show that,
the Plaintiff has failed to take reasonable care for
his own safety in respect to the particular danger
which has in fact occurred. - FURTHER HELD, The
contributory negligence has two facets. One in
which two or more vehicles and drivers are
involved in the accident. It is their driving which is
the cause of accident. In said case the question is
who drove the vehicle in a rash and negligent
manner. If all of them drove the vehicles in
negligent manner, who contributed to what extent
in causing the accident. It is on the basis of such
factual finding apportioning the blameworthiness
on the drivers contributory negligence has to be
assessed. To the extent of the percentage of
negligence attributed to each driver and the owner
of the vehicle and consequently if the vehicle
insured, the insurer would be liable to pay
compensation. if the driver himself is claim
compensation as third party, if his negligent act is
also cause of the accident, then the compensation
payable him would get reduced to the extent of the
percentage negligence attributed to him - The
second facet who the claimant is not involved in
the accident in any manner, i.e., in driving the
SCCH-7 28 MVC .906/13 C/w 907 & 908/13.
vehicle But, arises out of breach of the resulting in
injury on account of the accident. Failure to take
reasonable care or precaution for his own safety
when traveling in a Motor Vehicle, in respect of the
particular danger, which in fact occurred, so that,
he there contributed to his own injury. It is this
second aspect which is dealt with under Section
123 of the Act. NEGLIGENCE AND
CONTRIBUTORY NEGLIGENCE - DISCUSSED.
(B) MOTOR VEHICLES ACT, 1988 - SECTION
123 - Duty of the driver and a conductor under -
HELD, Section 123 of the Act casts a duty on the
driver and conductor of a Motor Vehicle to prevent
any person from traveling on the running board or
on the top of the vehicle. There is an obligation cast
on them under the statute to see that, all persons
are within the body of the vehicle. In spite of this
statutory provision, if they permit any person to
travel on the running board or on the top of the
vehicle, it is breach of duty. - FURTHER HELD,
Similarly no person shall travel on the running
board or on the top or on the bonnet of the Motor
Vehicle. If he travels, it is a careless conduct, the
commission of which amounts to negligence. A
duty of care exists as it is embodied in a statute
with foresight for the benefit of such persons
traveling in a Motor Vehicle. Mere breach of law or
duty would not create a liability to pay damages.
Such a breach should result in injury which is the
foundation of a claim for damages. Therefore, the
question of contributory negligence does not
depend upon any breach of duty as between the
Plaintiff and Defendant. Such a breach of duty
should result in injury and consequent loses. In
other words, there should be a nexus between the
breach of duty and the injury. if there is a blame
causing the accident on both sides, the loses lies
where it falls. This omission constitutes a careless
conduct. Foresight is the test for duty and
remoteness.
(C) MOTOR VEHILCES ACT, 1988 -
Contributory negligence - Plea of - Requirement of
SCCH-7 29 MVC .906/13 C/w 907 & 908/13.
pleading and evidence - of the Court to appreciate
the evidence - HELD, Before the Tribunal is called
upon to decide the question contributory
negligence, the plea that, is available to the driver
and conductor of the bus/driver, conductor and
owner of the bus, they must specifically plead the
contributory negligence and in support of the said
plea, they must adding evidence. On such evidence
being adduced, the court has to appreciate the
material on record and come to defined conclusion
that, traveling of the passenger on the top of the
bus has, to any extent, contributed for the accident
and the consequent loss. Only if such a finding is
record holding that, it indeed contributed to the
accident, then the question will arise what is the
extent to which he has contributed. Depending
upon the percentage of his contribution, in the
total compensation arrived at, the compensation
payable has to be proportionately reduced to the
extent of his contribution. Mere fact that, the
passenger was traveling on the roof top of the bus
by itself is not sufficient to hold that, he
contributed to the accident and that, he is not
entitled to full contributed to the accident and that,
he is not entitled to full compensation payable -
FURTHER HELD, Traveling on roof top of the Bus
is pure negligence. But, unless the said negligent
act contributed to the accident and consequential
loss, that, passenger cannot be denied the
compensation. But, by such negligent act, if the
passenger has contributed to the accident, the
extent Orthopaedic Surgeon his contribution has to
be ascertained. To that, extent, the compensation
payable would get reduced. No contributory
negligence or fixed percentage of contribution could
be attributed to the passenger, merely because he
was traveling on the roof top of the bus. Hence, the
precise percentage by which the award of
compensation amount is to be reduced is a pure
question of fact, to be decided by the Court, on the
evidence adduced and in the circumstances of the
each case.
SCCH-7 30 MVC .906/13 C/w 907 & 908/13.
28. My answers to the above said Issues are as follows;
In M.V.C.No.906/2013
Issue No.1 : Partly in the
Affirmative,
Issue No.2 : Deleted,
Issue No.3 : Partly in the
Affirmative,
The Petitioners are
entitled for a sum of
Rupees 4,79,700/- as
compensation from the
Respondents No.2 and
3, in equal proportion.
Issue No.4 : As per the final Order,
Additional : In the Affirmative,
Issue
In M.V.C.No.907/2013
Issue No.1 : Partly in the
Affirmative,
Issue No.2 : Partly in the
Affirmative,
The Petitioner is
entitled for a sum of
Rupees 1,20,091/-
with interest at the
rate of 6% p.a. as
compensation from the
Respondents No.2 and
3, in equal proportion.
SCCH-7 31 MVC .906/13 C/w 907 & 908/13.
Issue No.3 : As per the final Order,
In M.V.C.No.908/2013
Issue No.1 : Partly in the
Affirmative,
Issue No.2 : Partly in the
Affirmative,
Issue No.3 : Partly in the
Affirmative,
The Petitioners are
entitled for 50% of
Rupees 14,76,000/-,
i.e, Rupees 7,38,000/-
, with interest at the
rate of 6% p.a. as
compensation from the
Respondent No.2.
Issue No.4 : As per the final Order,
for the following;
REASONS
29. ISSUE NO.1 IN M.V.C.NO.906/2013 :- The P.W.1,
who is Petitioner No.1 in M.V.C.No.906/2013 has stated in his
examination-in-chief that, the Petitioner No.2 is his wife and he
came to know that, his son Satish met with road traffic
accident, which occurred on 17.12.2012 at about 9.50 P.M. and
body of his son shifted to Hoskote Government Hospital,
wherein, post-mortem was conducted and later, the body was
handed over to them. 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.9 Election Identity Card relating to
Satish.N., Ex.P.10 Election Identity Card relating to Petitioner
SCCH-7 32 MVC .906/13 C/w 907 & 908/13.
No.1 and Ex.P.11 Election Identity Card relating to Petitioner
No.2. On perusal of the contents of the said material
documents, it clearly goes to show that, the Petitioner No.1 is a
father and the Petitioner No.2 is a mother of Satish S/o
G.K.Nanjundappa, who died in the road traffic accident on
17.12.2012 at 9.50 P.M. in the accidental spot itself. From this,
it is made crystal clear that, the Petitioners are the legal
representatives of the said deceased Satish S/o
G.K.Nanjundappa.
30. But, based on the same, it cannot be said that, both
the Petitioners were dependents of the said deceased, as, the
Petitioner No.1 is a father, who cannot be considered as
dependent of the deceased. Further the P.W.1 in his cross-
examination has stated that, he has two sons and one daughter
and one of his elder sons is Kalyan Kumar and younger son is
Sathish Kumar and one of the daughters is Kavitha and the
Petitioner No.2, who is his wife, is a house wife. The Petitioner
No.2, who is a mother of the deceased can only considered as
dependent of the deceased. Therefore, it can be safely held that,
though the Petitioners are legal representatives of the deceased
Satish S/o G.K.Nanjundappa, the Petitioner No.2, who being a
mother of the said deceased is only a dependent of the said
deceased. Accordingly, I answered Issue No.1 in
M.V.C.No.906/2013 partly in the Affirmative.
31. ISSUE NO.1 in M.V.C.No.908/2013 :- The P.W.3,
who is the Petitioner No.1 in M.V.C.No.908/2013 has stated in
her examination-in-chief that, the Petitioners No.2 and 5 are
her minor children and the Petitioner No.3 and 4 are her in-
SCCH-7 33 MVC .906/13 C/w 907 & 908/13.
laws and she came to know that, her husband Ravikumar was
met with an accident, which had occurred on 17.12.2012 at
about 9.50 P.M. and her husband Ravikumar died on the spot
and his body was shifted to Hoskote Government Hospital,
wherein, the post-mortem was conducted. She has further
stated that, at the time of death of her husband, she was
pregnant and on 01.08.2013, she was delivered a baby boy, i.e.,
Petitioner No.5. The Petitioners have produced Ex.P.19 Birth
Certificate relating to Petitioner No.5, Ex.P.20 Post-mortem
Report, Ex.P.21 Inquest, Ex.P.22 Driving Licence relating to
deceased Ravikumar, Ex.P.23 Election Identity Card relating to
Petitioner No.4, Ex.P.24 Election Identity Card relating to
Petitioner No.3 and Ex.P.25 Birth Certificate relating to
Petitioner No.5. On perusal of the contents of the said material
documents, it clearly goes to show that, the Petitioner No.1 is a
wife, Petitioners No.2 and 5 are minor sons, Petitioner No.3 is a
father and Petitioner No.4 is a mother of deceased Ravikumar
S/o Ramachandrappa, who died on 17.12.2012 at 9.50 P.M. in
the road traffic accident, i.e., in the spot itself, due to severe
fatal injuries sustained by him, when he was driving the Car
bearing Registration No.KA-03-MA-8182 and at the time of
death of said deceased, the Petitioner No.5 was in the womb of
Petitioner No.1. From this, it is made crystal clear that, the
Petitioner No.1 as a wife, Petitioners No.2 and 5 as minor sons
and Petitioners No.3 and 4 as parents, are the legal
representatives of deceased Ravikumar S/o Ramachandrappa.
32. But, based on the same, it cannot be said that, all
the Petitioners are the dependents of the said deceased, as, the
Petitioner No.3, who is a father of the deceased cannot be
SCCH-7 34 MVC .906/13 C/w 907 & 908/13.
considered as dependent. Further, the P.W.3, in her cross-
examination has clearly stated that, her in-laws having two
sons and one daughter, namely, Ravikumar, Anand and
Muralikumari. Further, as per the documents produced by the
Petitioners, it clearly goes to show that, the age of the Petitioner
No.3 is 50 years. Hence, the Petitioner No.1 as a wife and the
Petitioners No.2 and 3 are minor sons and the Petitioner No.4
as a mother can only be considered as dependents of the said
deceased. Accordingly, I answered Issue No.1 In
M.V.C.No.908/2013 partly in the Affirmative.
33. ISSUE NO.2 IN M.V.C. NO.906/2013, ISSUE NO.1 IN
M.V.C.NO.907/2013 AND ISSUE NO.2 IN M.V.C. NO.908/2013
:- The P.W.1, who is the Petitioner No.1 in M.V.C.No.906/2013
has stated in his examination-in-chief that, he came to know that,
his son Sathish met with road traffic accident, which occurred on
17.12.2012 at about 9.50 P.M., when he was proceeding in a Car
bearing No.KA-03-MA-8182 on Hosakote Jangamakote Road from
Jangamakote proceeding towards Hosakote and the driver of Car
driving slowly cautiously observing traffic rules and regulations
and when they reached near Soondenahalli Village, at that time, a
Lorry bearing No.KA-53-A-3519 by its driver, who was proceeding
ahead of the said Car, was driving in a rash and negligent manner
with high speed and suddenly applied brake without giving any
indication and came to his extreme right side of the road and due
to which, the driver of the Car was unable to avoid collusion and
force to dash back portion of the lorry. He has further stated that,
in the said accident, his son and other occupants of the Car
sustained sever fatal injuries and his son Sathish died on the spot
and other occupant Ravikumar also died on the spot. He has
SCCH-7 35 MVC .906/13 C/w 907 & 908/13.
further stated that, the body of his son was sent to Hoskote
Government Hosptial, wherein, post-mortem was conducted and
later, the dead body was handed over to them. He has further
stated that, the accident is due to the rash and negligent driving of
the driver of the Lorry bearing No.KA-53-A-3519 and the Hoskote
Police have registered a case as against the driver of the Lorry in
question. He has further stated in his cross-examination that, his
deceased son Sathish was proceeding in the Car at the time of
accident and his friend has intimated about the accident through
his phone.
34. The Petitioners in M.V.C. No.906/2013 have produced
Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Spot Panchanama, Ex.P.4
Spot Hand Sketch, Ex.P.5 MVI Report, Ex.P.6 Inquest and Ex.P.7
P.M Report and Ex.P.8 Charge Sheet.
35. The P.W.2, who is a Petitioner in M.V.C.No.907/2013,
who is also an eye witness of the said accident, has stated the
same evidence of P.W.1 in his examination-in-chief. He has
further stated that, he was proceeding in the said Car bearing
Registration No.KA-03-MA-8182 and in the said accident, he had
sustained severe injuries to his face, head and other bleeding
injuries all over the body and immediately, he was shifted to MVJ
Hospital, wherein, first aid was given and then, he was shifted to
NIMHANS Hospital, wherein, necessary investigations were done
and again he was shifted to MVJ Hospital, wherein, he was treated
as an inpatient for a day. He has further stated that, CT Scan and
X-rays were done, which reveals that, he had sustained
Comminuted fracture anterior wall of left maxillary sinus,
Comminuted fracture of posterolateral wall of left maxillary sinus,
SCCH-7 36 MVC .906/13 C/w 907 & 908/13.
communited fracture of left zygomatic bone, transverse fracture of
posterolateral wall of left orbit, transverse fracture anterior wall of
right maxillary sinus and diffuse axonal injury with fracture and
due to severity of injuries, he was shifted to Abhaya Hospital on
18.12.2012 and after treatment, he was discharged on
29.12.2012.
36. The Petitioner in M.V.C.No.907/2013 has produced
Ex.P.12 Wound Certificate, Ex.P.13 Discharge Summary and
Ex.P.17 CT Scan Report.
37. The P.W.2 has further stated in his cross-examination
that, still he is remembering the occurrence of the accident and
injuries sustained by him in the road traffic accident, which
caused on 17.12.2012 and they were four persons in the Car and
it was Icon Car bearing Registration No.8182 and the said Car
owned by the friend of the deceased Ravikumar and at the time of
accident, the deceased Ravikumar was driving the said Car. He
has further stated that, the road on which, the accident was
occurred is 60 ft. width of both ways and they know about the
said road before the accident.
38. The P.W.3, who is the Petitioner No.1 in M.V.C.
No.908/2013 has also stated the same evidence of P.W.1, in her
examination-in-chief. She has further stated that, she came to
know that, her husband Ravikumar was met with road traffic
accident, which is occurred on 17.12.2012 at about 9.50 P.M.,
when he was driving the Car bearing Registration No.KA-03-MA-
8182 on Hosakote Jangamakote Road from Jangamakote
proceeding towards Hosakote and in the said accident, her
SCCH-7 37 MVC .906/13 C/w 907 & 908/13.
husband and other occupants of the Car had severe fatal injuries
and her husband Ravikumar died on the spot itself and other
occupant Sathish also died on the spot and the body of her
husband was shitted to Hoskote Government Hospital, wherein,
post-mortem was conducted and later, the dead body was handed
over to them.
39. The Petitioners in M.V.C.No.908/2013 have produced
Ex.P.20 P.M. Report and Ex.P.21 Inquest.
40. But, based on the above said oral version of P.W.1 to
P.W.3 coupled with the contents of Ex.P.3 to Ex.P.7, Ex.P.12,
Ex.P.13, Ex.P.17, Ex.P.20 and Ex.P.21, it cannot be believed and
accept the case made out by all the Petitioners in the said cases
that, at the time of accident, the Car bearing Registration No.KA-
03-MA-8182 was driven by its driver, who is the deceased
Ravikumar, slowly, cautiously and observing traffic rules and
regulations and there was no negligence on his part in driving the
said Car at the time of accident, as, the said evidence adduced by
all the Petitioners is quite contrary to the contents of Ex.P.1 FIR,
Ex.P.2 Complaint and Ex.P.3 Charge Sheet, which are produced
by the Petitioners in M.V.C.No.906/2013 themselves, which is
clear from the following discussions.
41. The contents of Ex.P.1 FIR and Ex.P.2 Complaint
clearly disclosed that, Sri. Srinivas S/o Gurrappa, who is an eye
witness has lodged Ex.P.2 Complaint as against the deceased
Ravikumar, who was a driver of the Car bearing Registration
No.KA-03-MA-8182 and the driver of the Tipper Lorry bearing
Registration No.KA-53-A-3519 alleging that, on 17.12.2012 at
SCCH-7 38 MVC .906/13 C/w 907 & 908/13.
about 9.50 P.M., near Sonnadenahalli Village, the said Lorry and
Car were proceeding with high speed and rash and negligent
manner one after the another and the driver of the said Lorry
without any indication has suddenly applied the break and took
turn the Lorry on its right side of the road and the said Car
dashed to the hind portion of the said Lorry and he went to the
spot and 4 persons, who are in the said Car had sustained
grievous injuries and with the help of public, all the injured were
taken-out from the said Car and the driver of the Car, the person,
who was seated by the side of the said driver, are died in the spot
itself due to sever fatal injuries and two persons, who are seated
in the back seat of the said Car have also sustained injuries and
the deceased persons are Ravikumar and Sathish and injured
persons are Pradeep and Ramesh and number of the Lorry is KA-
53-A-3519, which is Tipper Lorry and the number of the Car is
KA-03-MA-8182 and through 108 Ambulance, the injured were
shifted to Hoskote M.V.J. Hospital and the Doctors after
examination, declared that, the said Pradeep is also died during
transit and after treatment to Ramesh, for further treatment, he
was referred to Bangalore NIMHANS Hospital and through
Ambulance, the said injured Ramesh was shifted to NIMHANS
Hospital and the driver of the said Tipper and Car are the cause
for the said accident and based on the said Ex.P.2 Complaint,
Hoskote Police have filed criminal case as against the deceased
Ravikumar, who was a driver of the said Car and the driver of the
Tipper Lorry bearing Registration No.KA-53-A3519 for the offences
punishable under Section 279, 337 and 304(A) of IPC under Crime
No.473/2012. On perusal of the contents of Ex.P.1 FIR and Ex.P.2
Complaint, it is clearly disclosed that, the complainant is an eye
witness and there is no delay as such in lodging Ex.P.2 Complaint
SCCH-7 39 MVC .906/13 C/w 907 & 908/13.
by him before the jurisdictional Police. From the contents of
Ex.P.1 FIR and Ex.P.2 Complaint, it clearly goes to show that,
both the Car bearing Registration No.KA03-MA-8182 and Tipper
Lorry bearing Registration No.KA-53-A-3519 and their drivers are
very much involved in the said road traffic accident. The use of
both the said vehicles, are also clear from the contents of Ex.P.1
FIR and Ex.P.2 Complaint.
42. It is also clear from the contents of Ex.P.3 Spot
Panchanama, Ex.P.4 Spot Hand Sketch and Ex.P.5 MVI Report
that, due to high speed, rash and negligent manner of driving of
the said offending Car and Tipper Lorry by its drivers, the said
road traffic accident was taken place, wherein, the driver of the
said Car Ravikumar and another inmate Sathish S/o
G.K.Nanjundappa were succumbed to the injuries in the spot
itself and another injured Ramesh, who is a Petitioner in M.V.C.
No.907/2013 had sustained grievous injuries. It is clearly
mentioned in Ex.P.4 Spot Hand Sketch that, in front of the said
offending Car, the Tipper Lorry was proceeding and on its behind,
the said Car dashed. The damages caused to both the vehicles are
clearly mentioned in Ex.P.5 MVI Report, which clearly disclosed
about the terrific impact of the said accident. It is also clearly
mentioned in Ex.P.5 MVI Report that, the said road traffic
accident was not occurred due to any mechanical defects of the
said both vehicles. From this, it is made crystal clear that, both
the said offending Car and Tipper Lorry are used in the said road
traffic accident and on the negligence of both the drivers of the
said vehicles, the said road traffic accident was taken place.
SCCH-7 40 MVC .906/13 C/w 907 & 908/13.
43. The contents of Ex.P.6 Inquest and Ex.P.7 Post-
mortem Report further clearly disclosed that, due to sever fatal
injuries, the said deceased Sathish, who was the driver of the
offending Car, succumbed in the spot itself. It is also clearly
mentioned in Ex.P.7 P.M Report that, the opinion as to the cause
of death is due to shock and hemorrhage due to injuries to vital
organs as result of road traffic accident. The death of Sathish due
to accidental injuries is clearly proved from the contents of these
documents.
44. The contents of Ex.P.12 Wound Certificate clearly
disclosed that, in the said road traffic accident, the Petitioner in
M.V.C. No.907/2013 had sustained multiple scar over left
forearm, which is grievous injury and immediately after the
accident, he was admitted to M.V.J. Hospital and NIMHANS
Hospital with a history of the road traffic accident and the C.T.
Brain revealed that, left temporal polar EDH with trancontic SAH,
fracture left orbital roof, fracture left zygomatic orch, which is
head injury, which is grievous in nature. The contents of Ex.P.13
Discharge Summary further clearly disclosed that, by admitting as
an inpatient from 18.12.2012 to 29.12.2012 in Abhaya Hospital,
the said Petitioner took treatment to the said injuries, i.e., for 12
days. Ex.P.17 CT Scan Report also disclosed about the head
injuries sustained by Petitioner in the said road traffic accident.
45. The contents of Ex.P.20 Post-mortem Report and
Ex.P.21 Inquest further clearly disclosed that, the driver of the
Car, namely, Ravikumar, died in the accidental spot itself, due to
sever fettle injuries. It is clearly mentioned in Ex.P.20 Post-
mortem Report that, the cause of death is due to shock and
SCCH-7 41 MVC .906/13 C/w 907 & 908/13.
hemorrhage due to injuries to vital organs as result of road traffic
accident. The death of Ravikumar due to accidental injuries is
clearly proved from the contents of these documents.
46. The contents of Ex.P.22 Driving Licence relating to said
deceased Ravikumar also clearly disclosed that, he was a driver of
the offending Car bearing Registration No.KA-03-MA-8182, at the
time of accident.
47. The contents of Ex.P.8 Charge Sheet clearly disclosed
that, due to high speed, rash and negligent manner of driving of
the said offending Tipper Lorry bearing Registration No.KA-53-A-
3519 by its driver, namely, Sri.Suresh R. S/o Ramakrishnegowda
as well as the driver of the offending Car bearing Registration
No.KA-03-MA-8182, namely, D.R.Ravikumar @ Ravi S/o
Ramachandrappa, the said road traffic accident was taken place
on 17.12.2012 at about 9.50 P.M. near Sonnadenahalli, Hoskote -
Jangamakote Road, in front of Tanker Lorry Shed and in the said
road traffic accident, the driver of the offending Car, namely,
D.R.Ravikumar and inmate of the said Car, namely ,Sathish S/o
G.K.Nanjundappa, who was sitting in front of the said Car, died in
the accidental spot itself due to grievous injuries and one
K.Pradeep S/o Krishnappa, who was sitting on the back side of
the Car was also died due to fatal injuries on the way to MVJ
Hospital, Hoskote and the Petitioner In M.V.C.No.907/2013, who
was sitting on the back seat of the said Car had also sustained
grievous injuries in the said road traffic accident and as such,
after thorough investigation, the Investigating Officer has filed a
charge sheet as against the drivers of both Tipper Lorry and Car
for the offences punishable under Section 279, 338 and 304(A) of
SCCH-7 42 MVC .906/13 C/w 907 & 908/13.
IPC. As this Tribunal has already observed that, Ex.P.1 FIR and
Ex.P.2 Complaint clearly disclosed about the very negligence on
the part of both the drivers of the offending Tipper Lorry and Car
in the said road traffic accident and the eye witness of the said
road traffic accident has lodged Ex.P.2 Complaint before the
jurisdictional Police. The contents of Ex.P.1 FIR, Ex.P.2 Complaint
and Ex.P.8 Charge Sheet are clearly corroborated with each other.
The use of both the offending vehicles, i.e., Lorry and Car, are
clear from the contents of Ex.P.8 Charge Sheet.
48. Further, the Respondent No.2 has examined its
Manager- Legal as R.W.1, who has stated in his examination-in-
chief that, the driver of the Lorry was proceeding towards
southern side, the deceased, who was driving the Car on the same
direction, he drove the same in very high speed with rash and
negligent manner and dashed against the Lorry from back side
and he drove the Car without following traffic norms and without
following a sufficient gap between two vehicles and as such, there
was no negligence on the part of the driver of the Lorry and the
Police have charge sheeted against the said vehicle, only on
ground that, the same is a heavy vehicle and the entire negligence
is on the part of the driver of the Car, i.e., deceased only. The said
evidence stated by the R.W.1 is quite contrary to the contents of
Ex.P.2 Complaint, Ex.P.1 FIR and Ex.P.8 Charge Sheet, which is
clear from the above said discussion. Further, except the oral
version of R.W.1, no acceptable material evidence is adduced by
the Respondent No.2 to prove that, the entire negligence is on the
part of the driver of the said offending Car, namely, deceased
D.R.Ravikumar. Furthermore, the R.W.1 is not an eye witness and
in this regard, he has stated in his cross-examination that, he has
SCCH-7 43 MVC .906/13 C/w 907 & 908/13.
not seen the accident, accidental spot and also the offending
vehicles. He has clearly admitted that, the Police have filed the
charge sheet as against the drivers of both the vehicles and it is
not mentioned in the charge sheet that, the said Lorry is a heavy
vehicle. Furthermore, the complainant, who lodged Ex.P.2
Complaint is an eye witness, who has given the complaint before
the jurisdictional Police without causing any delay and after
thorough investigation, the Investigating Officer has filed Ex.P.8
Charge Sheet corroborating the contents of Ex.P.2 Complaint.
Further, the Respondent No.1 was a R.C. Owner of the said
offending Lorry bearing Registration No.KA-53-A-3519 and the
Respondent No.3, who was a owner of the offending Car bearing
Registration No.KA-03-MA-8182, have not appeared before this
Tribunal to deny the case of the Petitioners, as, though the notice
were duly served on them, they were remained absent and hence,
they are placed exparte. If really, there is no negligence on the part
of the offending Tipper Lorry and the entire negligence is on the
part of the driver of the offending Car, the Respondent No.1 could
have been definitely appeared before this Tribunal and examined
the driver of his Tipper Lorry as witness on his behalf and could
have definitely contest the petitions by filing written statement.
The non-appearance of the Respondents No.1 and 3 clearly
implies that, they have indirectly admitted the entire contents of
Ex.P.8 Charge Sheet, which has been filed by the concerned
Investigating Officer as against the drivers of the respective
vehicles, after thorough investigation. Further, this is not a case of
the Respondent No.2 that, owners and drivers of the said
offending Lorry and Car have challenged the contents of Ex.P.8
Charge Sheet before the Hon'ble Appellate Court. Therefore,
SCCH-7 44 MVC .906/13 C/w 907 & 908/13.
evidence adduced by the Respondent No.2 through R.W.1 cannot
be believed and accept and as such, it is discard.
49. Under the above said facts and circumstances as
well as the reasons given, this Tribunal has come to the
conclusion that, in the said road traffic accident, the negligence
is equally on the part of the drivers of both offending Tipper
Lorry bearing Registration No.KA-53-A-3519 and Car bearing
Registration No.KA-03-MA-8182 and in the said road traffic
accident, both the said offending vehicles are used and in the
said road traffic accident, deceased D.R.Ravikumar S/o
Ramachandrappa, who was a driver of the said offending Car
and Sathish S/o G.K.Nanjundappa, who was inmate in the said
Car succumbed to the injuries in the spot itself and the
Petitioner in M.V.C.No.907/2013 had sustained head injury,
which is grievous in nature. The contributory negligence is
equally on the part of both the drivers of the said offending
vehicles. Accordingly, I answered Additional Issue in
M.V.C.No.906/2013, Issue No.1 in M.V.C.No.907/2013 and
Issue No.2 in 908/2013 partly in the Affirmative.
50. ISSUE NO.3 IN M.V.C.NO.906/2013, ISSUE NO.2
IN M.V.C.NO.907/2013 AND ISSUE NO.3 IN
M.V.C.NO.908/2013 :-
51. ISSUE NO.3 IN M.V.C.NO.906/2013 :- The P.W.1
has stated that, as on the date of the accident, his son was aged
about 23 years. In this regard, the Petitioners have produced
Ex.P.9 Election Identity Card relating to deceased Sathish,
which disclosed that, his date of birth is 02.06.1986. The date
SCCH-7 45 MVC .906/13 C/w 907 & 908/13.
of accident is 17.12.2012. On perusal of the said dates, it
appears that, at the time of accident, deceased Sathish was
aged 27 years old. Therefore, the age of the deceased Sathish is
considered as 27 years at the time of accident.
52. The P.W.1 has stated that, the deceased son was
working as a driver and earning Rupees 3,300/- P.M. He has
further stated in his cross-examination that, his deceased son
was working in ITC Factory as a driver on temporary basis and
he was earning a sum of Rupees 110/- per day. Except the oral
version of P.W.1, the Petitioners have not produced any
authenticated documents to consider the avocation and income
of the deceased Sathish, at the time of accident. The same has
been clearly admitted by the P.W.1 in his cross-examination.
Though there is no evidence to consider the avocation and
income of the said deceased, the earning of Rupees 3,300/-
P.M. as stated by the P.W.1 relating to his son as a driver does
not appeared to be exaggeration, as, even in normal
circumstances, a coolly would get Rupees 3,300/- P.M. Hence,
the income of Rupees 3,300/- P.M. relating to the said deceased
cannot be doubted. Hence, the income of the said deceased is
considered as Rupees 3,300/- P.M. at the time of accident.
53. The P.W.1 has stated that, his son was contributing
his entire earnings towards welfare of the family and due to his
death of his son they lost their bread earner.
54. As per the Schedule - II annexed to M.V. Act 1988,
1/3rd income of the deceased has to be deducted towards his
personal expenses. As this Tribunal has already considered the
SCCH-7 46 MVC .906/13 C/w 907 & 908/13.
income of the deceased is Rupees 3,300/- P.M. Therefore, the
loss of dependency come to Rupees 2,200/- (Rs.3,300/- (-)
Rs.1,100/-).
55. As this Tribunal has already come to the conclusion
that, at the time of accident, the age of the deceased Sathish
was 27 years. The multiplier under Schedule - II applicable to
the age, i.e., 27 years of deceased is 18. Therefore, the loss of
dependency for monthly income of Rupees 2,200/- by applying
multiplier by 18 come to Rupees 4,75,200/- (Rupees 2,200/- X
12 X 18). Therefore, the Petitioners are entitled for a sum of
Rupees 4,75,200/- towards loss of dependency.
56. The P.W.1 has stated that, they had spent more than
Rupees 50,000/- towards transportation of dead body and
funeral obsequies of his son. He has further stated that, the
Petitioner No.2 still not recovered from the shock.
57. But, as per the Schedule - II, the Petitioners are only
entitled for Rupees 2,000/- towards funeral expenses and
Rupees 2,500/- towards loss of estate. Hence, the Petitioners
are entitled for Rupees 2,000/- towards funeral expenses and
Rupees 2,500/- towards loss of estate.
58. As the Petitioners have filed the petition under
Section 163(A) of M.V. Act, they are not entitled for any
compensation under other heads.
59. In this way, the Petitioners are entitled for the
following amount of compensation:-
SCCH-7 47 MVC .906/13 C/w 907 & 908/13.
Sl.No. Compensation heads Compensation amount
1. Loss of dependency Rs. 4,75,200-00
2. Funeral expenses Rs. 2,000-00
3. Loss of estate Rs. 2,500-00
TOTAL Rs. 4,79,700-00
60. In all, the Petitioners in M.V.C. No.906/2013 are
entitled for total compensation of Rupees 4,79,700/- along with
interest at the rate of 6% per annum on the above said sum
from the date of Petition till payment.
61. ISSUE NO.2 IN M.V.C.NO.907/2013 :- The P.W.2
has stated in his examination-in-chief that, as on the date of
the accident, he was aged about 29 years. The Petitioner has
produced Ex.P.18 Driving Licence relating to him, which
disclosed that, his date of birth is 18.03.1983. The date of
accident is 17.12.2012. From the said dates, it appears that, at
the time of accident, the Petitioner was 30 years old. Hence, the
age of the Petitioner is considered as 30 years old at the time of
accident.
62. The P.W.2 has stated that, he was working as a
driver and earning Rupees 12,000/- P.M. at the time of
accident. As this Tribunal has already observed about the
production of Ex.P.18 Driving Licence by the Petitioner, relating
to him. Except the said Ex.P.18 Driving Licence, the Petitioner
has not produced any authenticated documents to show that, at
the time of accident, he was working as a driver and earning
Rupees 12,000/- P.M. Even he has not disclosed his
SCCH-7 48 MVC .906/13 C/w 907 & 908/13.
educational qualification and his marital and family status. In
the absence of the material evidence, by considering the age of
the Petitioner at the time of accident, this Tribunal feels that, it
is just, proper and necessary to consider the notional income of
the Petitioner is of Rupees 6,000/- P.M. at the time of accident,
which is reasonable and acceptable one.
63. The P.W.2 has stated that, due to severe injuries, he
was shifted to Abhaya Hospital on 18.12.2012 and underwent
ORIF of left Zygomatic complex fracture and also treated
conservatively for head injury and he was discharged on
29.12.2012 with advice to attend for regular follow-up and as
per the advise of the Doctor, he is still taking follow-up
treatment.
64. Based on the Ex.P.12 Wound Certificate relating to
the Abhaya Hospital, Ex.P.13 Discharge Summary and Ex.P.17
CT Scan Report, this Tribunal has already come to the
conclusion that, in the said road traffic accident, the Petitioner
had sustained grievous injuries and by admitting as an
inpatient from 18.12.2012 to 29.12.2012 in Abhaya Hospital,
i.e., for 12 days, he took treatment to the said grievous injuries.
It is clearly mentioned in Ex.P.12 Discharge Summary that,
during the course of treatment ORIF of left zygomatic complex
fracture under LA 26.12.2012, which clearly disclosed about the
line of treatment given to the Petitioner in the said Hospital to
the accidental injuries. Except the said Ex.P.12 Wound
Certificate and Ex.P.13 Discharge Summary and Ex.P.17 CT
Scan Report, no other supportive medical documents produced
SCCH-7 49 MVC .906/13 C/w 907 & 908/13.
by the Petitioner to show that, he has been regularly taking
fallow-up treatment as per the advise of the Doctor.
65. The P.W.2 has stated that, after the accident, he was
unable to continue his work and forced to leave the job and
hence, he sustained loss of income. He has further stated that,
even after better treatment also, he is not at all recovered from
the injuries, suffering from pain and agony, not able to eat hard
/ cold /hot food, forced to take only soft and liquid food. He has
further stated that, there is loss of memory, he is unable to
expose his eyes to sun, giddiness, omitting sensation, not able
to drive vehicles and these accidental injuries caused him
permanent disability.
66. To consider the said defects and disability sustained
by him due to the accidental injuries, except his oral version,
the Petitioner has not examined the Doctor, who has treated
him. Further, except Ex.P.12 Wound Certificate, Ex.P.13
Discharge Summary and Ex.P.17 C.T. Scan Report, no other
medical documents produced by the Petitioner to consider his
alleged difficulties, which has been suffering by him due to the
accidental injuries. Even, the Petitioner has not produced
disability certificate issued by the competent Doctor. Further,
no authenticated document is produced by the Petitioner to
show that, after the accident, he left the job, as, he was unable
to continue his work due to the accidental injuries, difficulties
and permanent disability. Though it is stated by the P.W.2 in
his cross-examination that, he has visited Abhaya Hospital
twice in a month for follow-up treatment and Doctor Sharan
treated him, to substantiate the said evidence, no medical
SCCH-7 50 MVC .906/13 C/w 907 & 908/13.
documents is produced. In the absence of the material evidence,
the alleged difficulties and permanent disability suffering by the
Petitioner as stated by him, cannot be believed and accept.
Therefore, the Petitioner is not entitled for future loss of income
arising out of the permanent physical disability, loss of future
income and loss of amenities of life.
67. As per Ex.P.12 Wound Certificate, the Petitioner had
sustained multiple scar over left forearm, which is grievous in
nature. The Petitioner was in the Abhaya Hospital as an
inpatient from 18.12.2012 to 29.12.2012, i.e., for 12 days. As
the Petitioner was 30 years old as on the date of accident, due
to the said grievous injuries, he could have been definitely
suffered a lot of pain and agony, during the course of treatment.
Considering the said aspects, it is just, proper and necessary to
award a sum of Rupees 20,000/- towards pain and suffering.
68. The Petitioner had suffered grievous injury and he
was in the Hospital as an inpatient for 12 days and he could not
do any work at least for 2 months and thereby, he deprived the
income. Therefore, at the rate of Rupees 6,000/- per month, a
sum of Rupees 12,000/- (Rs.6,000/- x 2) is awarded towards
loss of income during the laid up period.
69. The P.W.2 has stated that, he had spent around
Rupees 2,00,000/- towards hospitalization and other incidental
charges. But, the Petitioner has produced only Ex.P.14 Medical
Bills 54 in numbers, which is amounting of Rupees 1,25,391/-,
Ex.P.15 Medical Prescriptions 39 in numbers and Ex.P.16
Advance Receipts 2 in numbers. It is pertinent to note here that,
SCCH-7 51 MVC .906/13 C/w 907 & 908/13.
Serial No.54 of Ex.P.14 Medical Bills amount of Rupees
44,300/- is already included in Serial No.1 of Ex.P.14 Medical
Bills. Therefore, the amount of Rupees 44,300/-, which covered
under Serial No.54 has to be deducted in this total medical
expenses of Rupees 1,25,391/-. After deduction of Rupees
44,300/- in Rupees 1,25,391/-, the balance amount comes to
Rupees 81,091/-. As this Tribunal has already observed that,
by admitting as an inpatient for 12 days in the Hospital, the
Petitioner took treatment to the said grievous injury, which
sustained by him in the said road traffic accident. By
considering the nature of injury, line of treatment and period of
treatment, the possibility of spending of said amount of Rupees
81,091/- cannot be doubted. Hence, the Petitioner is entitled for
a sum of Rupees 81,091/- towards actual medical expenses.
70. The P.W.2 has stated that, he required continuous
treatment and one more surgery for removal of implants, which
cost around Rupees 30,000/-. But, the Petitioner has not
produced any estimation issued by the competent Doctor to
show the future medical expenses relating to him. As this
Tribunal has already observed and come to the conclusion that,
the Petitioner has not proved that, after discharge, he has been
continuously taking follow-up treatment to the said accidental
injury. Even the Petitioner has not proved by adducing
acceptable medical evidence that, he has been suffering from
permanent physical disability and difficulties due to the said
accidental injury. Further, it is clearly mentioned in Ex.P.13
Discharge Summary that, at the time of discharge, the
Petitioner is conscious oriented. Hence, the Petitioner is not
entitled for compensation towards future medical expenses.
SCCH-7 52 MVC .906/13 C/w 907 & 908/13.
71. As the Petitioner was taken treatment as an
inpatient for 12 days by admitting as an inpatient, it is
necessary to award a sum of Rupees 2,000/- towards
conveyance charges, Rupees 2,000/- towards attendant charges
and Rupees 3,000/- towards food, nourishment and diet
charges etc.,
72. In this way, the Petitioner is entitled for the following
amount of compensation:-
Sl.No. Compensation heads Compensation amount
1. Pain and sufferings Rs. 20,000-00
2. Loss of income during Rs. 12,000-00
laid up period
3. Actual medical expenses Rs. 81,091-00
4. Conveyance Rs. 2,000-00
5. Attendant Charges Rs. 2,000-00
6. Food, Nourishment & Rs. 3,000-00
Diet charges
TOTAL Rs. 1,20,091-00
73. In all, the Petitioner in M.V.C.No.907/2013 is
entitled for total compensation of Rupees 1,20,091/- along with
interest at the rate of 6% per annum on the above said sum
from the date of Petition till payment.
74. ISSUE NO.3 IN M.V.C.NO.908/2013 :- The P.W.3
has stated that, as on the date of accident, her husband was
aged about 29 years. The Petitioners have produced Ex.P.22
Driving Licence relating to deceased Ravikumar D.R., which
disclosed that, his date of birth is 26.01.1982. The date of
accident is 17.12.2012. On perusal of the said dates, it appears
that, at the time of accident, deceased Ravikumar was 31 years
SCCH-7 53 MVC .906/13 C/w 907 & 908/13.
old. Hence, the age of the said deceased is considered as 31
years at the time of accident.
75. The P.W.3 has stated that, her deceased husband
was working as a driver and earning Rupees 12,000/- per
month. Except Ex.P.22 Driving Licence relating to deceased
Ravikumar, the Petitioners have not produced any
authenticated documents to consider the avocation and income
of the said deceased. While discussing above, this Tribunal has
already observed that, at the time of accident, the said deceased
Ravikumar was driving the offending Car bearing Registration
No.KA-03-MA-8182. From this, it is made crystal clear that, at
the time of accident, the said deceased was working as a driver.
As the said deceased was 31 years old at the time of accident
and as the said deceased left behind the Petitioners as his legal
representatives, who are the wife, minor sons and parents, by
considering the same, i.e., his age and family status, in the
absence of the material evidence in respect of the income of the
said deceased at the time of the accident, this Tribunal feels
that, it is just, proper and necessary to consider the notional
income of the deceased Ravikumar is Rupees 6,000/- per
month at the time of accident. Hence, the notional income of the
deceased Ravikumar is considered as Rupees 6,000/- per
month at the time of accident.
76. The P.W.3 has stated that, her deceased husband
was contributing his entire earnings towards welfare of the
family and due to death of her husband, they lost their bread
earner. She has further stated that, at the time of death of her
husband, she was pregnant and on 01.08.2013, she delivered a
SCCH-7 54 MVC .906/13 C/w 907 & 908/13.
baby boy, i.e., Master Vishwas, who is the Petitioner No.5 and
the Petitioners No.2 and 5 lost their father at their tender age
and the Petitioners No.3 and 4 lost their loving son at their
needy age and she lost company of her husband in just 4 years
of their marriage. She has further stated that, they had spent
more than Rupees 50,000/- towards transportation of dead
body and funeral obsequies of her husband.
77. As per the decision reported in 2013 ACJ 1403
(Rajesh and Others V/s Rajbir Singh and Others) and as the
deceased was aged 31 years at the time of accident, towards
future prospects 50% of the income has to be added. So, 50% of
Rupees 6,000/- comes to Rupees 3,000/-. Therefore, the
income of the deceased comes to Rupees 9,000/- p.m.
(Rs.6,000/- + 3,000/-).
78. The Petitioners No.1, 2, 4 and 5 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 2,250/- (1/4th of Rs.9,000/-). Therefore,
loss of dependency comes to Rupees 6,750/- (Rs.9,000/- (-)
Rs.2,250/-). The multiplier corresponding to the age of the
deceased, i.e., 31 years, is 16 as per Sarala Varma's Case.
Therefore, loss of dependency comes to Rupees 12,96,000/-
(Rs.6,750/- x 12 x 16). Therefore, the Petitioners are entitled for
Rupees 12,96,000/- towards loss of dependency due to death of
Ravikumar S/o Ramachandrappa.
SCCH-7 55 MVC .906/13 C/w 907 & 908/13.
79. As per the principles laid down in the decision
reported in 2013 ACJ 1403, loss of consortium to the Petitioner
No.1, who is a wife of the deceased, should be Rupees
1,00,000/- and funeral expenses should be Rupees 25,000/-.
Hence, they are entitled for the said amount of compensation.
80. As the Tribunal has already observed that, the
Petitioner No.1 is a wife, Petitioners No.2 and 5 are minor sons,
Petitioner No.3 is a father and Petitioner No.4 is a mother of the
deceased. Considering the relationship of the Petitioners with
the deceased and facts and circumstances of the case, towards
loss of love and affection, Rupees 25,000/- is awarded.
81. Rupees 5,000/- is awarded towards expenses of
transportation of dead body and Rupees 25,000/- is awarded
towards loss of estate.
82. In this way, the Petitioners are entitled for the
following amount of compensation:-
Sl.No. Compensation heads Compensation amount
1. Loss of Dependency Rs. 12,96,000-00
2. Loss of Consortium Rs. 1,00,000-00
3. Funeral Expenses Rs. 25,000-00
4. Loss of Love and affection Rs. 25,000-00
5. Expenses of transportation Rs. 5,000-00
of dead body
6. Loss of Estate Rs. 25,000-00
TOTAL Rs. 14,76,000-00
SCCH-7 56 MVC .906/13 C/w 907 & 908/13.
83. In all, the Petitioners are entitled for total
compensation of Rupees 14,76,000/- along with interest at the
rate of 6% per annum on the above said sum from the date of
Petition till payment.
84. While answering Issue No.2 in M.V.C.No.906/2013,
Issue No.1 in M.V.C.No.907/2013 and Issue No.2 in
M.V.C.No.908/2013, this Tribunal has already come to the
conclusion that, both the offending Car bearing Registration
No.KA-03-MA-8182 and Tipper Lorry bearing Registration
No.KA-53-A-3519 as well as its drivers, are very much involved
in the said road traffic accident equally and also in the said
road traffic accident, both the said offending vehicles are very
much used, wherein, deceased Satish and Ravikumar, who was
a driver of the said offending Car, succumbed to the injuries in
the spot itself and the Petitioner in M.V.C.No.907/2013 had
sustained generous injury. It is further clearly held that, the
negligence is equal on the part of both the drivers of the said
offending Car and Tipper Lorry. On perusal of the cause title of
the petitions, it appears that, the Respondent No.1 is an owner
and the Respondent No.2 is an insurer of the said offending
Tipper Lorry at the time of accident. It is pertinent to note here
that, during the pendency of these cases, as per the order dated
16.04.2014 passed on I.A.No.IV under Order 1 Rule 10 of C.P.C.
filed by all the Petitioners, the Respondent No.3, who is an
owner of the offending Car, is impleaded as party to the present
petitions. The Petitioners have not made the Insurance
Company of the said offending Car as party to the present
cases, which imply that, at the time of accident, the said
offending Car was not having a valid insurance policy. The
SCCH-7 57 MVC .906/13 C/w 907 & 908/13.
R.W.1, who is the Manager-Legal of the Respondent No.2 has
admitted that, the policy issued in respect of vehicle Tipper
Lorry bearing No.KA-53-A-3519 and the same is valid as on the
date of accident. From this, it is made crystal clear that, as on
the date of accident, the Respondent No.1 was an owner and the
Respondent No.2 was an insurer of the said offending Tipper
Lorry and its insurance policy is valid and the Respondent No.3
was an owner of the offending Car and it was not having a valid
insurance policy. The violation of the terms and conditions of
the admitted insurance policy by the Respondent No.1 is not
proved by the Respondent No.2 in respect of the offending
Tipper Lorry.
85. As this Tribunal has already come to the conclusion
that, the Petitioners No.1 and 2 in M.V.C.No.906/2013 are
entitled for compensation of Rupees 4,79,700/- with interest at
the rate of 6% p.a. from the date of the petition till the date of
payment, from the Respondents No.2 and 3, in equal
proportion. At the time of accident, the deceased Satish S/o
G.K. Nanjundappa was travelling in the said offending Car, who
succumbed to the injuries in the spot itself. In view of the above
said reasons, both the Respondents No.1 and 2 are jointly and
severally liable to pay 50% of the above said compensation and
interest and the Respondent No.3 is liable to pay the remaining
50% of the above said compensation and interest to the
Petitioners No.1 and 2 of M.V.C.No.906/2013. Since the
Respondent No.2 is an insurer, it shall indemnify the
Respondent No.1. The Petitioners No.1 and 2 of
M.V.C.No.906/2013 shall share the said compensation and
interest in the ratio of 30:70. Hence, the Petition filed by the
SCCH-7 58 MVC .906/13 C/w 907 & 908/13.
Petitioners No.1 and 2 in M.V.C.No.906/2013 is liable to be
partly allowed with costs as against the Respondents No.1 to 3.
86. As this Tribunal has already come to the conclusion
that, the Petitioner in M.V.C.No.907/2013 is entitled for
compensation of Rupees 1,20,091/- with interest at the rate of
6% p.a. from the date of the petition till the date of payment,
from the Respondents No.2 and 3, in equal proportion. At the
time of accident, the Petitioner in M.V.C.No.907/2013 was also
travelling in the said offending Car, who had sustained the
grievous injury in the said road traffic accident. In view of the
above said reasons also, both the Respondents No.1 and 2 are
jointly and severally liable to pay 50% of the above said
compensation and interest and the Respondent No.3 is liable to
pay the remaining 50% of the above said compensation and
interest to the Petitioner of M.V.C.No.907/2013. Since the
Respondent No.2 is an insurer, it shall indemnify the
Respondent No.1. Hence, the Petition filed by the Petitioner in
M.V.C.No.907/2013 is liable to be partly allowed with costs as
against the Respondents No.1 to 3.
87. As this Tribunal has already come to the conclusion
that, the Petitioners No.1 to 5 in M.V.C.No.908/2013 are
entitled for compensation of Rupees 14,76,000/- with interest
at the rate of 6% p.a. from the date of the petition till the date of
payment. At the time of accident, the deceased Ravikumar S/o
Ramachandrappa was a driver of the said offending Car, who
was also an accused in the criminal case and who is succumbed
to the injuries in the spot itself. In view of the above said
reasons, both the Respondents No.1 and 2 are jointly and
SCCH-7 59 MVC .906/13 C/w 907 & 908/13.
severally liable to pay 50% of the above said compensation and
interest to the Petitioners No.1 to 5 of M.V.C.No.908/2013. But,
the Petitioners No.1 to 5 of M.V.C.No.908/2013 are not entitled
for remaining 50% compensation and interest from the
Respondent No.3, as, the said deceased Ravikumar was driving
the offending Car, which was belonging to the Respondent No.3
and the negligence is also equally on his part. Since the
Respondent No.2 is an insurer, it shall indemnify the
Respondent No.1. The Petitioners No.1 to 5 of
M.V.C.No.908/2013 shall share the said compensation and
interest in the ratio of 50:15:10:10:15. Hence, the Petition filed
by the Petitioners No.1 to 5 in M.V.C.No.908/2013 is liable to
be partly allowed with costs as against the Respondents No.1
and 2 and rejected as against the Respondent No.3. In view of
the above said reasons, the principles enunciated in the
decisions cited by the Learned Counsel appearing for the
Petitioners are not applicable to the present facts and
circumstances of the case on hand. Hence, Issue No.2 in
M.V.C.No.906/2013, Issue No.1 in M.V.C.No.907/2013 and
Issue No.2 in M.V.C.No.908/2013 are answered accordingly.
88. ISSUE NO.4 in M.V.C.No.906/2013, ISSUE NO.3
IN M.V.C.No.907/2013 AND ISSUE NO.4 in
M.V.C.No.908/2013 :- For the aforesaid reasons, I proceed to
pass the following,
ORDER
The petition filed by the Petitioners No.1 and 2 in M.V.C.No.906/2013 under Section 163-A of the Motor Vehicles Act, 1989 is SCCH-7 60 MVC .906/13 C/w 907 & 908/13. hereby partly allowed with costs as against the Respondents No.1 to 3.
The petition filed by the Petitioner in M.V.C.No.907/2013 under Section 166 of the Motor Vehicles Act, 1989 is hereby partly allowed with costs as against the Respondents No.1 to 3.
The petition filed by the Petitioners No.1 to 5 in M.V.C.No.908/2013 under Section 166 of the Motor Vehicles Act, 1989 is hereby partly allowed with costs as against the Respondents No.1 and 2.
The petition filed by the Petitioners No.1 to 5 in M.V.C.No.908/2013 under Section 166 of the Motor Vehicles Act, 1989 is hereby rejected as against the Respondent No.3.
The Petitioners No.1 and 2 in
M.V.C.No.906/2013 are entitled for
compensation of Rupees 4,79,700/- with interest at the rate of 6% p.a. from the date of the petition till the date of payment, from the Respondents No.2 and 3, in equal proportion.
The Petitioners No.1 and 2 of M.V.C.No.906/2013 shall share the said compensation and interest in the ratio of 30:70.
The Petitioner in M.V.C.No.907/2013 is entitled for compensation of Rupees 1,20,091/- with interest at the rate of 6% p.a. from the date of the petition till the date of payment, from the Respondents No.2 and 3, in equal proportion.
The Petitioners No.1 to 5 in M.V.C.No.908/2013 are entitled for 50% compensation of Rupees 14,76,000/-, i.e., SCCH-7 61 MVC .906/13 C/w 907 & 908/13. Rupees 7,38,000/-, with interest at the rate of 6% p.a. from the date of the petition till the date of payment, from the Respondent No.2.
The Petitioners No.1 to 5 of M.V.C.No.908/2013 shall share the said compensation and interest in the ratio of 50:15:10:10:15.
The Respondents No.2 and 3 shall deposit 50% each of the said compensation and interest in this Tribunal, within one month from the date of this order, in M.V.C.No.906/2103 and M.V.C.No.907/2013.
The Respondents No.2 shall deposit 50% of the said compensation and interest in this Tribunal, within one month from the date of this order, in M.V.C.No.908/2103.
In the event of deposit of compensation and interest in M.V.C.No.906/2013, 50% share shall be released in the names of Petitioners No.1 and 2 through account payee cheques, on proper identification and remaining 50% shall be kept in FD in their respective names, in any nationalized Bank of their choice, for a period of 3 years.
In the event of deposit of compensation and interest in M.V.C.No.907/2013, entire deposited amount shall be released in favour of the Petitioner through account payee cheque, on proper identification.
In the event of deposit of compensation and interest in M.V.C.No.908/2013, 50% share shall be released in the names of Petitioners No.1, 3 and 4 through account payee cheques, on proper identification and remaining 50% share shall be kept in FD in their respective names, in any nationalized Bank of their choice, for a period of 3 years SCCH-7 62 MVC .906/13 C/w 907 & 908/13. and the entire shares relating to Petitioners No.2 and 5 shall be kept in FD in any nationalized Bank, till they attain the age of majority.
Advocate's fee is fixed at Rupees 1,000/- in each case.
Original copy of the Judgment shall be kept in M.V.C.No.906/2013 and the copy of the same shall be kept in M.V.C.No.907/2013 and M.V.C.No.908/2013.
Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by me in the open Court on this the 23rd day of April, 2015.) (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 : G.K.Nanjundappa
P.W.2 : Ramesh
P.W.3 : Shilpa
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
Ex.P.6 True copy of Inquest
Ex.P.7 True copy of PM Report
Ex.P.8 True copy of Charge Sheet
SCCH-7 63 MVC .906/13 C/w 907 & 908/13.
Ex.P.9 Notarised xerox copy of Election Identity
Card of Sathish Kumar N.
Ex.P.10 Notarised xerox copy of Election Identity
Card of G.K Nanjundappa.
Ex.P.11 Notarised xerox copy of Election Identity
Card of Padmamma.
Ex.P.12 True copy of Wound Certificate
Ex.P.13 Discharge Summary
Ex.P.14 Medical Bills (54 in nos.)
Ex.P.15 Medical Prescriptions (39 in nos.)
Ex.P.16 Advanced Receipts (2 in nos.)
Ex.P.17 CT Scan Report
Ex.P.18 Notarised xerox copy of Driving Licence
relating to Ramesh C.N.
Ex.P.19 Birth Certificate of Vishwas
Ex.P.20 True copy of Post-mortem Report
Ex.P.21 True copy of Inquest
Ex.P.22 Driving Licence relating to Ravikumar
D.R.
Ex.P.23 Notarised xerox copy of Election Identity
Card relating to Rathnamma
Ex.P.24 Notarised xerox copy of Election Identity
Card relating to Ramachandrappa Ex.P.25 Notarised xerox copy of Birth Certificate relating to Vikranth D.R.
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
R.W.1 : K.L.Venu
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
-NIL-
(INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.