Bangalore District Court
Suresh Babu.E vs Mallappa K.Kulloli on 20 June, 2016
BEFORE THE COURT OF SMALL CAUSES AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, AT BANGALORE (SCCH-16)
PRESENT: SRI SATISH J.BALI,
B.Com., LL.M.,
X Addl.Judge, Court of Small Causes
(SCCH-16) Bangalore.
DATED THIS THE 20th DAY OF JUNE 2016.
MVC.No.3896/13 to 3898/13
PETITIONER: Suresh Babu.E
Aged about 30 years
S/o.Eshwar Naik,
R/o.No.72, 6th Cross,
2nd Main, 3rd Block
D Group Layout, Herohalli,
V.N.Post, Bangalore-91.
(Pleader by Sri.A.Hanuman -
thappa )
V/s
RESPONDENTS: 1 Mallappa K.Kulloli
S/o.Kanthirav Kulloli
R/o.No.49, Ram Mandir Road,
Bijapur.
(owner of lorry bearing
No.KA.28/B.1042)
(Pleader by Sri.Veeresh.M.)
2 Royal Sundaram Alliance
Ins.Co.Ltd.,
Plot No.3 &5,LS.No.52, Ward
No.16, 1st Floor,
Front wing, SFL complex,
Near Royal Circle,
2 MVC.3896/13to 3988/13
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Dr.Rajkumar Road,
Bellary-583101.
(Pleader by Sri.V.Shrihari
Naidu)
COMMON JUDGMENT
All these petitions were filed by the above named
petitioner under Section 166 of Motor Vehicles Act, 1989,
claiming compensation for the death of Dr.Ramesh Babu,
Smt.Dr.Savitha Rani.E., and Smt.Sulochana Naik in
MVC.3896/13 to 3898/13, in a road traffic accident dated
12-5-2013. These petitions aroused out of the same accident
and hence, they are clubbed together and common evidence
was recorded in MVC.3896/13.
2. The brief facts of the petition averments are as
under:
On 12-5-2013 at about 5.45p.m., the deceased
Dr.Ramesh Babu, Smt.Dr.Savitha Rani.E., and
Smt.Sulochana Naik were traveling in a car bearing
No.KA.02/MG.9419 from Bangalore to Jambaiahna Hatti
Village in Challakere Taluk, Chitradurga District to attend to
the funeral of junior uncle of the deceased Shankara Naik on
SH-19 road. When they reached near Sanikere Village of
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Challakere Taluk, by that time, the driver of lorry bearing
No.KA.29/B-1042 drove his vehicle in rash and negligent
manner, without observing the traffic rules and regulations
and dashed against the motor cycle bearing No.KA.16/
R.9757, which was coming from the Petrol bunk, later, the
driver of said lorry dashed against the car bearing
No.KA.02/MG.9419, in which, all the deceased were traveling.
Due to the impact, all the inmates of the car i.e, Dr.Ramesh
Babu, Smt.Dr.Savitha Rani.E., and Smt.Sulochana Naik were
died at the spot and the car was badly damaged.
3. The Challakere Police have registered case against
the driver of vehicle in crime No.162/2013, for the offence
punishable under Sec.279,337 and 304(A) of IPC. Hence, the
petitioners prayed to allow the petition
4. It is averred that the petitioner is only the L.R of all
the deceased. Dr.Ramesh Babu was hale and healthy and he
was a doctor by profession. The deceased Dr.Savitha Rani has
completed her BDS and pursuing MDS and the deceased
mother Smt.Sulochana Naik was house wife. It is stated that
the deceased Dr.Ramesh Babu had completed MBBS and
thereafter, he completed DNB that is equivalent to post
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graduation. After completion of the course, the deceased was
working as orthopedic Doctor in Fortis hospital, Bangalore
and earning Rs.60,000/-p.m.
5. The deceased in MVC.3897/13 Smt.Dr.Savitha Rani
was aged about 33 years and she completed her B.D.S and
later obtained M.D.S. seat in R.V.Dental college, JPnagar,
Bangalore and completed 1st year M.D.S. and joined 2nd year
by paying fee of Rs.3,00,000/-p.a. Smt.Dr.Savitha Rani was
getting stipend of Rs.25,000/- p.m. Apart from that, the
deceased Smt.Dr.Savitha Rani after the college hours, she
used to attend dental clinic and was working upto 9.30 p.m.
on every day and earning Rs.30,000/-p.m.
6. The deceased Smt.Sulochana Naik was a house wife .
She was aged about 50years as on the date of accident. Due
to the sudden demise of brother, sister and his mother,
petitioner's life became miserable. After the accident, the
petitioner spent nearly 2,00,000/- for transportation of dead
body and funeral expenses. It is stated that the Challakere
police have registered a criminal case against the driver of
lorry in Cr.No.162/13 for the offence punishable under
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Sec.279,337 and 304(A) of IPC. Hence, the petitioner prayed
to allow the petitions.
7. In response to the summons, both respondents
appeared before this Tribunal and filed their respective
written statements.
The Respondent No.1 has contended that the driver of
lorry bearing No.KA.28/B.1042 was holding valid and
effective DL. The respondent No.1denied that the accident
took place due to negligence of driver of lorry. The respondent
No.1 submitted that the lorry was duly insured with the 2nd
respondent and hence, 2nd respondent who is liable to pay
compensation to the petitioner. On all these grounds,
respondent No.1prayed to dismissal of the petitions.
8. The 2nd respondent filed objections denying the
involvement of offending lorry bearing No.KA.28/B.1042 in
the accident and also denied the manner of accident. The
respondent No.2 contended that the petitioner is not the L.R
of the deceased and he is a major brother of the deceased and
hence, the petition is not maintainable as the petitioner is not
a dependent of the deceased. The petitioner cannot claim
compensation in the capacity of legal representative/heirs
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and as such the petition is liable to be dismissed. It is
contended that the petition is bad for non joinder of
necessary and proper parties and the driver of car bearing
No.KA.02/MG.9419 did not had valid and effective DL to drive
the same and hence the petition is liable to be dismissed. The
respondent No.2 denied the age, occupation and income of
the deceased and also registration of criminal case against
the driver of lorry. The respondent No.2 contended that at the
time of accident, the driver of the lorry was driving it carefully
and cautiously on proper side of the road and the accident
occurred solely due to the rash and negligent driving of the
car bearing No.KA.02/MG.9419 and motor cycle bearing
No.KA.16/R.9757 by its driver and rider respectively.
9. The respondent No.2 admitted the issuance of policy
in respect of offending lorry and its validity as on the date of
accident. Their liability is subject to terms and conditions of
the policy and compliance of Sec.64VB of Insurance Act. It is
also contended that the 1st respondent has to prove before
this Tribunal that the vehicular documents like RC, FC,
permit and tax etc in respect of lorry were valid as on the date
of accident. It is also specific defence of the respondent No.2
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that the owner of vehicle had entrusted the MVC.3896/13 to
a person who did not possess valid and effective DL to drive
the lorry as on the date of accident. Hence, there is breach of
terms and conditions of the policy. The respondent No.2 has
contended that the compensation claimed by the petitioner
is exorbitant and baseless. It is specific contention of the
respondent No.2 that the motor cycle bearing
No.KA.16/R.9757 and the car bearing No.KA.02/MG.9419
have contributed for cause of the accident, as such, liability
has to be fastened on the said vehicles owner and insurer. On
all these grounds, Respondent No.2 prayed to dismiss the
petition.
10. On the basis of the above pleadings and
propositions of law, the following issues have been framed:
ISSUES IN MVC.3896/2013
1. Whether the Petitioner proves that Dr.
Dr.Ramesh Bau died in a RTAdue to
involvement of lorry bearing No.KA.28/B.1042
on 12-5-2013 at about 5.45 p.m. by its rash
and negligent driving as alleged in the
petition.?
2. Whether the Petitioner is entitled for
compensation? If so how much and from
whom?
3. What order?
8 MVC.3896/13to 3988/13
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ISSUES IN MVC.3897/2013
1. Whether the Petitioner proves that Dr.
Smt.Dr.Savitha Rani died in a RTA due to
involvement of lorry bearing No.KA.28/B.1042 on
12-5-2013 at about 5.45 p.m. by its rash and
negligent driving as alleged in the petition.?
2. Whether the Petitioner is entitled for
compensation? If so how much and from
whom?
3. What order?
ISSUES IN MVC.3898/2013
1. Whether the Petitioner proves that Dr. Smt.
Smt.Sulochana Naik died in a RTA due to
involvement of lorry bearing No.KA.28/B.1042 on
12-5-2013 at about 5.45 p.m. by its rash and
negligent driving as alleged in the petition.?
2. Whether the Petitioner is entitled for
compensation? If so how much and from whom?
3. What order?
11. To prove the above issues, the legal representative
of deceased Suresh Babu.E.,examined before this Tribunal
as PW-1 in all the petitions and got marked documents at
Ex.P.1 to P.35. The official of respondent No 2 company
examined as RW-1 and got marked Ex.R.1 to R.3. The
respondent No.1 has not led any evidence on his behalf.
9 MVC.3896/13to 3988/13
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12. I have heard the arguments and perused materials
on record. The learned counsel for the petitioner has filed
written notes of arguments and relied upon the ruling
reported in 1987(2) GLH 79, 1987 ACJ 561 (SC) Guj.State
Road Transport Corpn., Ahmedabad vs Ramanbhai
Prabhatbhai and another) (2) 2010 ACJ 145 ( Gajanand
and others vs Virendra Singh and others) and unreported
judgment in MFA.2387/2010 (MV) Imambi and others vsl
M.S.Gadekar and others.
13. Per contra, the learned counsel for the respondent
No.2 has pressed into service ruling reported in ILR 2000
KAR 2009 (Karnataka State Road Transport Corpn. vs
George Ninum) (2) 2005 ACJ 1332 (Harkhu Bai and others
vs Jiyaram and others) and another decision reported in
MFA.2442/2003 (Smt.T.S.Rukmani and another vs
M.B.Aiyappa and ors.)
14. By considering the evidence on record and because
of my below discussed reasons, I answer the above issues in
the followings:
IN MVCs.3896/13 to 3898/13
Issue No.1: In the Affirmative
10 MVC.3896/13to 3988/13
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Issue No.2: Partly in the Affirmative
Issue No.3: As per final order for the following:
REASONS
ISSUE NO.1:
15. The respondent No.2 has not disputed the
involvement of lorry bearing No.KA.28/B.1042 in the
accident. What is seriously disputed by the respondent No.2
is that the negligence is attributed to the driver of said lorry.
As per the contention of the respondent No.2 is that, the rider
of motor cycle bearing No.KA.16/R.9757 and the deceased
Dr.Ramesh Babu, who was driving the car bearing
No.KA.02/MG.9419 were also responsible for cause of the
accident.
16. The petitioner as PW-1 has reiterated the petition
averments in his affidavit filed in lieu of examination-in-chief
as PW-1 in all the petitions. He has deposed regarding the
manner of accident, death of his brother-Dr.Ramesh Babu,
sister Dr.Savitha Rani and mother Sulohana in the accident.
Registration of criminal case by the Challakere police against
the driver of lorry and also amount spent towards
transportation of dead body and funeral and obsequious
ceremony. He has also deposed regarding the income and
11 MVC.3896/13to 3988/13
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avocation of the deceased brother Dr.Ramesh Babu, sister
Dr.Savitha Rani and mother Sulohana.
17. Apart from the above said oral evidence, PW-1 has
produced the copy of FIR at Ex.P.1, statement at Ex.P.2,
IMV report at Ex.P.3, sketch at Ex.P.4, spot mahazar at
Ex.P.5, inquest report at Ex.P.6, statement of witnesses at
Ex.P.7, Post-mortem report at Ex.P.8, Copy of PF at Ex.P.9,
charge sheet at Ex.P.10, 4MBBS Marks card at Ex.P.11,
attempt certificate at Ex.P.12, convocation certificate at
Ex.P.13, internship certificate at Ex.P.14, DNB training
certificate at Ex.P.15, provisional certificate at Ex.P.16
appointment letter at Ex.P.17, 2 salary certificate at Ex.P.18,
2character certificates at Ex.P.19, 3exprience certificates at
Ex.P.20, DL extract at Ex.P.21, RC is at Ex.P.22, inquest
report at Ex.P.23, copy of statement at Ex.P.24, Post-mortem
Report at Ex.P.25, 5BDS Marks card at Ex.P.26, attempt
certificate at Ex.P.27, convocation certificate at Ex.P.28,
internship certificate at Ex.P.29, 4 fee paid receipts at
Ex.P.30, inquest report at Ex.P.31, Post-mortem report at
Ex.P.32, survival certificate at Ex.P.33, ration card at ex.P.34
and tax invoice at Ex.P.35.
12 MVC.3896/13to 3988/13
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18. Per contra, 2nd respondent has examined its official
as RW-1 and contended that driver of the lorry was not at all
responsible for cause of the accident, as the driver of the car
without holding DL, drove the same in a rash and negligent
manner, in high speed and in the process of over taking on
going vehicles, he lost control over the vehicle and dashed
against the lorry, which was moving slowly and cautiously on
the proper side of the road and the same has been revealed in
the sketch. RW-1 has produced the authorization letter at
Ex.R.1, insurance policy at Ex.R.2 and sketch at Ex.R.3.
19. On perusal of complaint and entire cross-
examination of PW-1, it is quite clear that the petitioner is not
an eye witness to the accident or he was present at the spot of
when the accident took place. The relationship of petitioner
with all the deceased is not disputed and so also death of
Dr.Ramesh Babu, Dr.Savitha Rani and Sulohana in the
accident. PW-1 admitted that he has given statement as per
Ex.P.7 stating that he was working as Asst.Sales Manager in
a private firm. He has stated that his relatives are shown to
the spot of accident and the vehicles were parked by the side
at the spot of accident. He has stated that he has given his
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statement in the police station and before going to the police
station, the police have prepared sketch and panchanma.
PW-1 further stated that the mahazar was conducted on the
next of the accident and he was present at the spot with the
police. PW-1 admitted that at the time of spot mahazar and
sketch, he was present and he failed to say, whether he
signed the spot mahazar or not. PW-1 admitted that the lorry
was proceeding from Challakere to Hiriyur. As per Ex.P.4, the
lorry was on the left side of the road. PW-1 denied the
suggestion that the front wheel of the lorry was punctured
when he saw it. Further PW-1 admitted that the police have
taken photographs of the lorry and the accident took place at
high way SH-19. Further, PW-1 stated that there was no
divider at the spot of accident. PW-1 admitted that there is
petrol bunk at the spot of accident. It is also stated that one
Tata Ace and 2wheeler were proceeding towards main road
from the said petrol bunk. He also admitted that the said
vehicles were proceeding towards main road in order to go to
Challakere. It is admitted by PW-1 that as per Ex.P.4, the
accident took place in the middle of the road and the
deceased were proceeding from Hiriyur to Challakere. PW-1
14 MVC.3896/13to 3988/13
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further admitted that by the side of the white mark, the heavy
vehicles will proceed and other vehicles proceed by the side of
the said white mark. PW-1 admitted that the front portion of
the car was damaged, in the accident.
20. The learned counsel for the respondent No.2
submitted that asper the admission of PW-1, that the
accident occurred in the middle of the road and the lorry was
on the left side and moving towards Challakere. He also
argued that the lorry was 10wheeler and was loaded with
steel and it cannot go beyond 30-40kms speed. He also
argued that at the spot of accident, there was one petrol
bunk, one Tata Ace and motor cycle were coming towards
main road and in order to avoid the accident, lorry came
towards left side of the road. The respondent No.2 further
argued that due to the high speed of the car bearing No.
KA.02/MG.9419 after hitting to the lorry, the car turned
towards Hiriyur. No eye witnesses were examined and the
driver of the car was sole responsible for cause of the
accident.
21. Per contra, the learned counsel for the petitioner
with reference to Ex.P.1-complaint, submitted that the driver
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of the lorry after hitting to the 2wheeler hit to the car of the
deceased. The driver of the lorry was not examined before this
Tribunal. Hence, the complaint itself reveals that the accident
was due to rash and negligent driving of above said lorry
bearing No.KA.28/B.1042.
22. I have tested the above said arguments of both
counsel and the materials on hand. As per the sketch at
Ex.P.4, the accident took place in the middle of the road and
it is not in dispute that the accident took place on SH-19. It is
also not in dispute that the car bearing No. KA.02/MG.9419
was proceeding from Hiriyur to Challakere and the offending
lorry was proceeding from Challakere towards Hiriyur. As per
sketch, the motor cycle bearing No.KA.16/R.9757 was also
involved in the accident. The said fact is confirmed in the IMV
report at Ex.P.3. Though, the learned counsel for the
respondent No.2 argued that as the accident took place in the
middle of the road, the deceased Dr.Ramesh Babu was
driving the car bearing No. KA.02/MG.9419 at the time of
accident and he is responsible for cause of the accident. He
also argued that there is head on collision between the lorry
and the above said car, which clearly reveals that the
16 MVC.3896/13to 3988/13
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accident was due to negligence on the part of the deceased
Ramesh Babu. But, as per the averments of complaint, it
discloses that before hitting to the car of the deceased, the
lorry bearing No.KA.28/B.1042 dashed against the motor
cycle bearing No.KA.16/R.9757. It is to be noted that at the
relevant point of time, the above said motor cycle was coming
from Subramanya petrol bunk after filling up the petrol and it
was proceeding towards SH19 national highway. As per the
complaint averments, the above said lorry hit to the motor
cycle bearing No.KA.16/R.9757, which was proceeding
towards SH-19. The complaint averments are very clear that
the lorry after hitting to the above said motor cycle, the driver
of lorry hit to the car bearing No. KA.02/MG.9419, in which,
the deceased were proceeding. As rightly contended by the
learned counsel for the petitioner, in this case, the driver of
the offending vehicle was not examined before this Tribunal.
Merely, on the basis of Ex.P.4-sketch, it cannot be come to
the conclusion that due to the negligence on the part of the
deceased Ramesh Babu, this accident took place. Though, the
learned counsel for the respondent No.2 argued that the lorry
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was 10wheeler and it was loaded with steel, hence, there is no
possibility of rash and negligent driving of said lorry.
23. I have carefully perused the spot panchanama
marked at Ex.P.5. In the said panchanama, it was stated that
the lorry was loaded with steel at the time of accident. Hence,
even though, the above said lorry was 10wheeler and it was
loaded with steel, it cannot be ruled out that the driver of said
lorry was not negligent in driving the vehicle. Especially, the
charge sheet and other police records speaks against him. If
at all, the accident was not due to negligence on the part of
the driver of said lorry, he ought to have appeared before this
Tribunal and explained the circumstances, under which this
accident took place. In this case, the said driver not appeared
before this Tribunal nor stepped into the witness box to speak
regarding under which circumstances this accident took
place. The petitioner by relying on oral as well as
documentary evidence has discharged his initial burden. Now
the burden is on the respondents to disprove the case of the
petitioner. Though, the official of the respondent No.2
examined as RW-1, but, he is not an eye witness to the
accident. He deposed only on the basis of police records.
18 MVC.3896/13to 3988/13
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Hence, his evidence with respect to the negligence aspect is
not believable one.
24. The complaint at Ex.P.1, makes it clear that the
lorry after hitting to the 2wheeler bearing No. KA.16/R.9757.
hit to the car of the deceased. It is to be noted that the
accident took place in the middle of the road. It is not two way
road. The driver of the lorry is expected to drive his lorry on
the left side of the road. It is not in dispute that before hitting
to the car of the deceased, he hit to the 2wheeler bearing No.
KA.16/R.9757, which was proceeding from Subramanya
petrol bunk situated on the left side towards SH-19.
Therefore, an inference has to be drawn in order to avoid the
collision with the 2wheeler, the driver of the lorry took his
vehicle to the middle of the road and in the meanwhile,
caused the accident with the car of the deceased bearing No.
KA.02/MG.9419. Hence, in the absence of any evidence by
the driver of offending lorry and especially all the police
records speaks against the driver of lorry. Therefore, on the
basis of oral as well as documentary evidence, this tribunal
can safely come to the conclusion that the accident took place
due to negligence on the part of the driver of offending lorry
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and Dr.Ramesh Babu, Dr.Savitha Rani and Sulohana were
died in the accident. Accordingly, I answer Issue No.1 in the
affirmative, in all the petitions.
ISSUE NO 2 IN ALL THE PETITONS:
25. This issue is in respect of quantum of compensation
to be awarded to the deceased and the liability to pay the
same.
The learned counsel for the respondent No.2 argued
that the petitioner is not entitled for compensation under the
head loss of dependency for the death of Dr.Ramesh Babu
and Dr.Savitha Rani as he was not dependent on the
deceased. He drawn the attention to the complaint, wherein,
the petitioner was shown as he is working as Asst.Sales
Manager at a Private Company and residing separately. He
has drawn the attention of this tribunal to the cross-
examination of PW-1, wherein, he admitted that he was
working as Asst. Sales Manager and hence, he is not
dependant upon the deceased. Therefore, no compensation
can be awarded under the head loss of dependency.
26. Per contra, the learned counsel for the petitioner
has argued that the petitioner being L.R of the deceased is
20 MVC.3896/13to 3988/13
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entitled for the compensation under the head loss of
dependency. The petitioner is unmarried and solely
dependant upon the deceased. Hence, because of sudden
demise of Dr.Ramesh Babu, Dr.Savitha Rani and Sulohana
are sole bread earning members of the family and he was put
lot of hardship and he was depending upon them. In this
regard, he pressed into service of ruling reported in 1987(2)
GLH 79, 1987 ACJ 561 (SC) Guj.State Road Transport
Corpn., Ahmedabad vs Ramanbhai Prabhatbhai and
another) I have carefully perused the facts of the case. The
Hon'ble High Court of Gujarat, after analyzing the provision of
fatal accidents Act and recommendations of British Royal
Commission held that the LRs are entitled for compensation.
Further the Hon'ble High Court of Gujarat took into
consideration of Sec.110 of Fatal Accidents Act, held at Para-
13 as under:-
"... That we should remember that in an Indian family
brothers, sisters and brothers' children and some times foster
children live together and they are dependent upon the bread
winner of the family and if the bread winner is killed on
account of a motor vehicle accident, there is no justification
21 MVC.3896/13to 3988/13
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to deny them compensation relying upon the provisions of the
Fatal accidents Act, 1855, relying upon the ruling reported
between Megjibhai Khimiji Vim vs Chaturbhai Taljabhai..."
27. I have carefully perused the entire facts of the case.
The Hon'ble High Court of Gujarat has come to the
conclusion that the family brothers, sisters and brothers'
children and even including foster children, when they live
together and they are dependent upon the bread winner of
the family and in case of bread winner is killed in the
accident, they are entitled for compensation. There is specific
finding of the Hon'ble High Court of Gujarat that in case of
legal representatives are dependant upon the family, are
entitled for compensation, in case of death of bread winner.
Therefore, it is to be proved that the legal representative are
depending upon the bread winner of the family. But, in this
case, as rightly contended by the learned counsel for the
respondent No.2, the petitioner himself has admitted as per
Ex.P.7, that he was working as Asst.Sales Manager in a
private firm. It is to be noted that the petitioner produced
Ex.P.22-RC extract of car bearing No.KA02/MG.9419,
wherein, the deceased Ramesh Babu was shown as resident
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of Andharahalli main road, Lingadheeranahalli, Bangalore.
Whereas, as per Ex.P.34-ration card, the petitioner and the
deceased Sulochana and Dr.Savitha Rani were shown to be
the resident of JP nagar 6th Phase, Bangalore. The petitioner
has not produced any documents to show that the deceased
Ramesh Babu was residing with him at the time of accident.
It is to be noted that though the deceased Dr.Savitha Rani
was holder of degree in Dental surgery, no documents were
produced with respect to her salary. Under such
circumstances, it cannot be come to the conclusion that the
petitioner was dependent upon either on Dr.Savitha Rani or
the deceased Dr.Ramesh Babu. In this regard, it is useful to
refer a decision relied by the learned counsel for the
respondent No.2 in unreported judgment of our Hon'ble
High Court of Karnataka in MFA.2442/1998
(Smt.T.S.Rukmani and another vs M.B.Aiyappa and Ors)
wherein, the Hon'ble High Court of Karnataka has held that
where, the petitioner was major and a labourer by
occupation, the deceased had no obligation in law to maintain
his son. By applying the said principles, in this case also, the
petitioner as per Ex.P.7, was Sales Asst.Manager in a private
23 MVC.3896/13to 3988/13
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firm and in the absence of any materials, it cannot be come
to the conclusion that the petitioner was dependent either on
the deceased Dr.Ramesh Babu or Dr.Savitha Rani, till the
date of accident. No documents have been produced to show
that the deceased Dr.Ramesh Babu was residing with the
petitioner prior to the date of accident. Hence, this tribunal
has come to the conclusion that the petitioner is not entitled
for any compensation under the head loss of dependency.
28. The learned counsel for the petitioner has pressed
into service a decision in 2010 ACJ 145 ( Gajanand and
others vs Virendra Singh and others) I have carefully
perused the entire facts of the case, the Hon'ble High Court
of Madhya Pradesh has relied upon the ruling of our Hon'ble
High Court of Karnataka reported in 2006 ACJ 2347 (New
India Assurance Co.Ltd., vs Ramya Raghavan and
another), wherein, our Hon'ble High Court of Karnataka has
held that if the married daughter living separately is entitled
for compensation on account of death of her mother and also
observed that proof of actual dependency is not necessary.
There is no dispute with regard to the said position of law.
But, the ruling relied by the learned counsel for the petitioner
24 MVC.3896/13to 3988/13
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reported in 2010 ACJ 145 as this ruling is of Madhya
Pradesh, it is only persuasive value. Hence, the same cannot
be come to the aid of the petitioner.
29. The learned counsel for the petitioner has also relied
upon the unreported judgment in MFA.2387/2010 (MV)
( Imambi and others vs M.S.Gadekar and others.) wherein
the Hon'ble High Court of Karnataka relying upon the ruling
reported in ILR 2004 KAR 3282 ( A.Manavaiagna vs
A.Krishnamurthy and others) held that even where the
petitioners are not entitled for compensation under the head
loss of dependency, but, they are entitled for compensation
under the head loss of estate. The Hon'ble High Court of
Karnataka has held that the loss of estate should be
calculated by taking 1/3rd of the income earned by the
deceased. In this case also, as I have already discussed
above, the petitioner is not entitled for compensation under
the head loss of dependency, in respect of death of
Dr.Ramesh Babu and Dr.Savitha Rani as he was not
dependent upon them.
30. The petitioner has produced the Marks card of
M.B.B.S. of the deceased Dr.Ramesh Babu at Ex.P.11.
25 MVC.3896/13to 3988/13
SCH-16
Ex.P.12 is the attempt certificate, Ex.P.13 is the degree
certificate, Ex.P.14 is the compulsory rotating internship
completion certificate, Ex.P.15 is the DNB training certificate
issued by the Hosmat hospital stating that the deceased
Dr.Ramesh Babu has registered with the board w.e.f. 1-8-
2008 to 31-7-211 and completed 3years training in the
speciality of Orthopedics in their hospital, Ex.P.16 is the
provisional certificate of passing of Diplomate of National
Board, which reveals that the deceased has completed DNB
examination which is equivalent to post graduate/post
doctoral qualification award by Indian Universities. The
petitioner has also produced Ex.P.17- appointment letter of
the deceased Dr.Ramesh Babu, which reveals that the
deceased was appointed as Registrar-Orthopedics at Forties
hospital from 1-6-2012 on salary of Rs.40,000/-p.m. Ex.P.18
is the salary slip for the month of August 2012 and July
2012, which reveals that the deceased drawn salary of
Rs.40,000/-p.m. Ex.P.19 is the letter issued by the Fortis
hospital , which reveals that the deceased Dr.Ramesh Babu
working as registrar of Orthopedics from 14-6-2012 to till
date i.e, 21-11-12. Another certificate issued by the Hosmat
26 MVC.3896/13to 3988/13
SCH-16
hospital dated 24-6-12 further reveals that the deceased
Dr.Ramesh Babu worked as Registrar in the Hosmat hospital
from 1-8-11 to 13-6-2012. The experience certificate at
Ex.P.20 issued by the District Prison, Mangalore, which
reveals that the deceased Dr.Ramesh Babu was working as
Junior Resident in the department of General Surgery at
A.J.Institute of Medical Sciences, Mangalore from 14-3-2008
till 15-7-2008. Another experience certificate issued by the
General hospital, Virajpet stating that the deceased
Dr.Ramesh Babu was worked as General duty Medical Officer
in the General hospital, Virajpet from 17-3-2006 to 31-7-
2006. All these records reveal that the deceased Dr.Ramesh
Babu was a Bachelor decree holder of M.B.B.S., and he was
working in various hospitals. He has also obtained
specialization in the field of Orthopedics by completing DNB
examination which is equivalent to post graduate/post
doctoral qualification award by Indian Universities, which
could be seen from Ex.P.16, Ex.P.17 is the appointment
letter issued by Fortis hospital, which reveals that the
deceased was appointed as Registrar-Orthopedics at Fortis
hospital from 1-6-2012 on salary of Rs.40,000/-p.m.
27 MVC.3896/13to 3988/13
SCH-16
31. The petitioner has also produced Ex.P.26- marks
card of BDS. The Attempt certificate issued by the KLE
Society's as per Ex.P.27 shows that she completed Bachelor
decree of Dental surgery. Ex.P.28 is the convocation
certificate issued by the Rajiv Gandhi University. Ex.P.29 is
the internship completion certificate issued by the Rajiv
Gandhi University, Belgaum. Ex.P.30 reveals that the
deceased Dr.Savitha Rani took admission for MDS at Pandu
Memorial, R.V.Dental College and hospital JP nagar,
Bangalore. In fact, she has passed 1st semester and was due
to complete 2nd semester of MDS. The petitioner has not
produced any documents to show her income. But, it cannot
be ruled out that the deceased Dr.Savitha Rani completed
BDS course and also completed internship, which could be
seen from the above said documents. She was due to
complete MDS. Therefore, it cannot be ruled out that the
deceased Dr.Savitha Rani was earning handful income as
she has completed BDS course and about to complete MDS
course. Therefore, considering her age and also qualification
of the deceased Dr.Savitha Rani, her notional income is
determined as Rs.25,000/-p.m.
28 MVC.3896/13to 3988/13
SCH-16
32. The deceased Smt.Sulochana Naik was house wife.
Even if she is a house wife, it cannot be ruled out that she
was not earning any income. The deceased Smt.Sulochana
Naik was aged about 53years as on the date of accident as
could be seen from Post-mortem at Ex.P.32. Even though, she
was house wife, she has responsibility to look after the entire
family. Hence, considering the age and also date of accident,
notional income of the deceased is determined as Rs.8,000/-
p.m.
33. Loss of dependency arises only in MVC.3898/13
due to death of Smt.Sulochana Naik. The deceased was aged
about 53 years. As per the ruling of 2013 ACJ 1403
(Rajesh and others vs Rajbir Singh, the Hon'ble Apex
court discussed the ruling and Sarala Verma's case and
held that the future prospectus can be taken into account,
even where a person is not having any permanent job.
Therefore, even today, Rajesh and Sarala Verma's case
holds good. Therefore, the Hon'ble Apex court in the ruling
reported in 2013 ACJ 1403 (Rajesh and others vs Rajbir
Singh and others) held that the future prospects should be
adopted even when the person is self employed or were
29 MVC.3896/13to 3988/13
SCH-16
engaged on fixed wages. In para-11 and 12 of said judgment,
the Hon'ble Apex court discussed the principles laid down in
the Sarala Verma's case reported in 2009 ACJ 1298(SC) and
another ruling reported in 2012 ACJ 1428(SC) in Santhosh
Devi's case held that even when the person is self-employed
or at fixed wages, the future prospectus is to be considered.
The Apex court has held that 50% of the actual income of the
deceased have to be taken for the future prospectus below
40years and 30% for the age group of 40-50years and 15% for
the age group of 50-60years is to be added as future
prospectus.
34.Further, in another rulings of Apex court reported in
Civil Appeal No.4497/2015 between Munnalal Jain and
another vs Vipin Kumar Sharma and others) held that the
age of the deceased should taken into account for applying
the proper multiplier.
35. In this case, the deceased was aged about 53years
as on the date of accident. Hence, as per the above said
rulings, 15% of actual income is to be taken into account as
future prospectus. As per the petition, the petitioner is only
the legal representative of the deceased. Hence, 50% has to
30 MVC.3896/13to 3988/13
SCH-16
be deducted towards her personal expenses. Hence, the
following calculations:
(i) Notional income arrived at ...Rs.8000/-p.m.
(ii)15% of (i) above said income
to be added as future prospectus ...Rs.1200+8000/-=
...Rs.9,200/-p.m.
Less 50% deducted as personal
expenses of the deceased. ...Rs. 9,200-4,600-=
... Rs.4,600/-x12x11=
Compensation after multiplier of 11
is applied ... Rs.6,07,200/-
The petitioners are entitled for the compensation of
Rs.6,07,200/-under the head loss of dependency.
36. The Apex Court, in the case reported in 2013 ACJ
5800 (Sanobanu Nazirbhai Mirza Vs. Ahmedbad Municipal
Transport Service) and also in the recent judgment reported
in AIR 2014 SUPREME COURT 706 (Puttamma Vs. Narayana
Reddy) awarded Rs.1,00,000/- as compensation to the family
members (children and family members other than wife) for
loss of love and affection, deprivation of protection, social
security etc., and Rs.50,000/- as compensation to the widow
of the deceased for loss of love and affection, pains and
sufferings, loss of consortium, deprivation of protection, social
security etc., and Rs.10,000/- towards cost incurred on
account of funeral and ritual expenses. In this case, since
31 MVC.3896/13to 3988/13
SCH-16
the deceased has left behind her only son , I deem it proper to
award Rs.1,00,000/- as compensation to the family members
(children and family members other than wife) for loss of love
and affection, deprivation of protection, social security etc.,
and Rs.1,00,000/- as compensation to the son of the
deceased for loss of love and affection, pains and sufferings,
loss of consortium, deprivation of protection, social security
etc., and Rs.25,000/- towards cost incurred on account of
funeral and ritual expenses.
IN MVC.3896/13
37. This tribunal has come to the conclusion that the
petitioner is not dependent upon the deceased Dr.Ramesh
Babu and Dr.Savitha Rani as on the date of accident. Hence,
he is not entitled for any compensation under the head loss of
dependency. However, the petitioner is entitled for
compensation under the head loss of estate as per the ruling
reported in ILR 2004 KAR 3282 ( A.Manavaiagna vs
A.Krishnamurthy and others) The Hon'ble High Court of
Karnataka in unreported judgment in MFA.2387/2010 (MV)
Imambi and others vs- M.S.Gadekar and others) By relying
upon the above said judgment, the Hon'ble High Court of
32 MVC.3896/13to 3988/13
SCH-16
Karnataka has held that the loss of estate should be
calculated by taking 1/3rd of the income earned by the
deceased by applying the proper multiplier having regard to
the age of the deceased.
38. In this case. Dr.Ramesh Babu as per Ex.P.21-DL
extract, the deceased was born on 20-8-1981. This accident
took place on 12-5-2013. As on the date of accident, the
deceased was aged about 32 years. As per Ex.P.17 and P.18,
Dr.Ramesh Babu was drawing salary of Rs.40,000/-p.m. By
relying upon the unreported judgment of the Hon'ble High
Court of Karnataka, in MFA.2387/2010 (MV) (Imambi and
others vs- M.S.Gadekar and others) if 1/3rd of the earned
income of Rs.40,000/- comes to Rs.13,333/-x12=1,59,996/-
p.a. The deceased was aged about 32 years as on the date of
his death, the applicable multiplier to his age is 16.
Rs.1,59,996/-is multiplied by 16, it comes to Rs.25,59,936/-
which is rounded off to Rs.25,60,000/-. (1,59,936x16)
39. The Apex Court, in the case reported in 2013 ACJ
5800 (Sanobanu Nazirbhai Mirza Vs. Ahmedbad Municipal
Transport Service) and also in the recent judgment reported
in AIR 2014 SUPREME COURT 706 (Puttamma Vs. Narayana
33 MVC.3896/13to 3988/13
SCH-16
Reddy) awarded Rs.1,00,000/- as compensation to the family
members (children and family members other than wife) for
loss of love and affection, deprivation of protection, social
security etc., and Rs.50,000/- as compensation to the widow
of the deceased for loss of love and affection, pains and
sufferings, loss of consortium, deprivation of protection, social
security etc., and Rs.10,000/- towards cost incurred on
account of funeral and ritual expenses. In this case, since
the deceased has left behind his brother, I deem it proper to
award Rs.1,00,000/- as compensation to the family members
(children and family members other than wife) for loss of love
and affection, deprivation of protection, social security etc.,
and Rs.25,000/- towards cost incurred on account of funeral
and ritual expenses.
40. The details of compensation I propose to award are
as under:
Sl.No. Head of Compensation Amount/Rs
1. Loss of Estate 25,60,000/-
2. Compensation to family 1,00,000/-
members (children and family
members other than wife) for
loss of love and affection,
deprivation of protection, social
security etc.,
3. Funeral Expenses 25,000/-
Total 26,85,000/-
34 MVC.3896/13to 3988/13
SCH-16
In all the Petitioners are entitled for compensation of
Rs.26,85,000/-.
IN MVC: 3897/13
41. The Post-mortem report of the deceased Dr.Savitha
Rani reveals that she was aged about 34 years as on the date
of her death. No documents were produced to show her date
of birth. Hence, age mentioned in Ex.P.25-Post-mortem report
is taken into consideration. No documents are produced by
the petitioner to show her income. Hence, notional income of
the deceased Dr.Savitha Rani is determined as Rs.25,000/-
p.m considering her education and age. By relying upon the
above said ruling in unreported judgment of the Hon'ble
High Court of Karnataka, in MFA.2387/2010 (MV) Imambi
and others vs- M.S.Gadekar and others) if 1/3rd of the
earned income of Rs.25,000/-comes to Rs.8337/-x
12=99,996/- which is rounded off to Rs.1,00,000/-p.a.
The deceased was aged about 34 years as on the date of her
death, the applicable multiplier to her age is 16. If
Rs.1,00,000/- is multiplied by 16, it comes to
Rs.16,00,000/. (1,00,000x16=Rs.16,00,000/-)
35 MVC.3896/13to 3988/13
SCH-16
42. The Apex Court, in the case reported in 2013 ACJ
5800 (Sanobanu Nazirbhai Mirza Vs. Ahmedbad Municipal
Transport Service) and also in the recent judgment reported
in AIR 2014 SUPREME COURT 706 (Puttamma Vs. Narayana
Reddy) awarded Rs.1,00,000/- as compensation to the family
members (children and family members other than wife) for
loss of love and affection, deprivation of protection, social
security etc., and Rs.50,000/- as compensation to the widow
of the deceased for loss of love and affection, pains and
sufferings, loss of consortium, deprivation of protection, social
security etc., and Rs.10,000/- towards cost incurred on
account of funeral and ritual expenses. In this case, since
the deceased has left behind his brother, I deem it proper to
award Rs.1,00,000/- as compensation to the family members
(children and family members other than wife) for loss of love
and affection, deprivation of protection, social security etc.,
and Rs.25,000/- towards cost incurred on account of funeral
and ritual expenses.
43. The details of compensation I propose to award are
as under:
36 MVC.3896/13to 3988/13
SCH-16
Sl.No. Head of Compensation Amount/Rs
1. Loss of Estate 16,00,000/-
2. Compensation to family 1,00,000/-
members (children and family
members other than wife) for
loss of love and affection,
deprivation of protection,
social security etc.,
3. Funeral Expenses 25,000/-
Total 17,25,000/-
In all the Petitioners are entitled for compensation of
Rs.17,25,000/-.
With regard to damages
44. The petitioner has produced the tax invoice as per
Ex.P.35 to show that he has incurred expenses for repair of
the car, due to damage caused in the accident. It has been
admitted by Pw-1 that the deceased Dr.Ramesh Babu was the
RC owner of the said car. Except Ex.P.35-tax invoice, no
repair bills have produced before this Tribunal. More over, the
vehicle damages are claimed, all documents have to be
produced showing the repair expenses incurred by them. It is
necessary to prove the said documents, by examining the
author of the said documents. In this case, author of Ex.P.35
is not examined by the petitioner before this Tribunal. In this
regard, it is useful to refer a decision reported in ILR 2000
37 MVC.3896/13to 3988/13
SCH-16
KAR 2009(Karnataka State Road Transport Corporation
vs George Ninum) wherein the Hon'ble High Court of
Karnataka has held that "...In the absence of any material
to show that the claimant was the owner of the car, the
claim petition itself was not maintainable-Mere producing
of documents is not sufficient to prove special damages.
Such documents have be proved. Mere production of
document is not a proof of its contents....".
In view of the above said decision of the Hon'ble High
Court of Karnataka, the petitioner has not proved author of
Ex.P.35. Hence, no compensation is awarded.
Interest:
45. Relying upon a judgment of the Apex Court reported
in 2013 AIR SCW 5375 (Minu Rout and others Vs. Satya
Pradyumna Mohapatra and others), with regard to interest at
the rate of 9% p.a. on the compensation amount, in para 13
of the judgment, the Apex Court held that Insurance
Company is also liable to pay interest at the rate of 9% p.a.
from the date of application till the date of payment and also
by following the principles laid down in (2011) 4 SCC 481 :
(AIR 2012 SC 100) (Municipal Council of Delhi Vs.
38 MVC.3896/13to 3988/13
SCH-16
Association of Victims of Uphaar Tragedy). In view of the
above judgments with regard to the rate of interest, and also
it is settled law that while awarding interest on the
compensation amount, the Court has to take into account the
rate of interest of the nationalized bank and the rate of
interest at 9% cannot said to be on the higher side.
Accordingly, the Petitioners are entitled to interest at the rate
of 9% p.a.
Liability:
46. While answering issue No.1, it was come to the
conclusion, that the accident was on account of rash and
negligent driving of offending lorry bearing No.KA.28/B-1042
by the driver of respondent No.1. The respondent No.1
insured the lorry with the respondent No.2 and the policy was
in force as on the date of accident. Therefore, the respondent
No.2 being the insurer and respondent No.1 being owner of
the offending vehicle are jointly and severally liable to pay
compensation to petitioner with interest at 9% p.a. However,
primary liability is fixed on respondent No.2. Accordingly,
issue No.2 is answered partly in the affirmative.
39 MVC.3896/13to 3988/13
SCH-16
ISSUE NO.3 IN ALL THE CASES:-
47. In view of my above findings, the petitions are
deserves to be partly allowed. Hence, I proceed to pass the
following order:
ORDER
The petitions filed by the Petitioner are allowed in part.
The Petitioner is entitled for compensation of Rs.26,85,000/- (Rs.Twenty six Lakhs eighty five thousand Only) in MVC.3896/13 with interest at the rate of 9% p.a. from the date of petition till realisation.
The Petitioner is entitled for compensation of Rs.17,25,000/- (Rs.Seventeen Lakhs twenty five thousand Only) in MVC.3897/13 with interest at the rate of 9% p.a. from the date of petition till realisation.
The Petitioner is entitled for compensation of Rs.8,32,200/- (Rs.eight Lakhs thrity two thousand two hundred Only) in MVC.3898/13 with interest at the rate of 9% p.a. from the date of petition till realisation.
The Respondents No.1 and 2 are jointly and severally liable to pay the award amount. However, the primary liability to pay the compensation amount is fixed on the Respondent No.2. Respondent No.2 is directed to pay the 40 MVC.3896/13to 3988/13 SCH-16 compensation amount within two months from the date of this order.
Out of the said compensation amount awarded, 50% of the compensation amount with proportionate interest shall be deposited in the name of the Petitioner in MVCs.3896/13 to 3898/13 as FD in any nationalized bank for a period of five years (without any encumbrance or premature withdrawal) with liberty to draw the accrued interest periodically and the remaining 50%amount with proportionate interest shall be released to the Petitioner through A/c payee cheques on proper identification and verification. Advocate's fee is fixed at Rs.1,000/- in each case Draw an award accordingly, in all the cases.
Office to keep the original judgment in the file of MVC No.3896/13, copy of the same in the file of MVC No.3897/13 and 3897/13.
(Dictated to the stenographer, transcribed by her, corrected and then pronounced in the open court this the 20th day of June 2016) (SATISH.J.BALI) MEMBER:MACT, BANGALORE.
ANNEXURE Witnesses examined on behalf of petitioner in all the cases: PW.1 : Suresh Babu.E. Documents marked on behalf of petitioner:
Ex.P.1 : Copy of FIR
41 MVC.3896/13to 3988/13
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Ex.P.2 : Copy of Statement
Ex.P.3 : Copy of IMV Report
Ex.P.4 : Copy of Sketch
Ex.P.5 : Copy of spot mahazar
Ex.P.6 : Copy of inquest report
Ex.P.7 : Copy of statements
Ex.P.8 : Copy of PM report
Ex.P.9 : Copy of PF
Ex.P.10 : Copy of chargesheet Ex.P.11 : 4 MBBS marks cards Ex.P.12 : Attempt certificate Ex.P.13 : Convocation certificate Ex.P.14 : Internship certificate Ex.P.15 : DNB Training certificate Ex.P.16 : Provisional certificate Ex.P.17 : Appointment letter Ex.P.18 : 2 Salary certificates Ex.P.19 : 2 Character certificates Ex.P.20 : 3 Experience certificates Ex.P.21 : D.L. extract Ex.P.22 : RC of car Ex.P.23 : Copy of inquest report Ex.P.24 : Copy of statement Ex.P.25 : Copy of PM report Ex.P.26 : 5 BDS marks cards Ex.P.27 : Attempt certificate Ex.P.28 : Convocation certificate Ex.P.29 : Internship certificate 42 MVC.3896/13to 3988/13 SCH-16 Ex.P.30 : 4 Fee paid receipts Ex.P.31 : Copy of inquest report Ex.P.32 : Copy of PM report Ex.P.33 : Notarised copy of survival certificate Ex.P.34 : Notarised copy of ration card Ex.P.35 : Tax invoice Witnesses examined on behalf of respondents in all the cases: RW-1 Sandeep Documents marked on behalf of the respondents:
Ex.R.1 : Authorization letter Ex.R.2 : Insurance policy Ex.R.3 : Sketch (SATISH.J.BALI), MEMBER, MACT BANGALORE.