Bangalore District Court
And There Is No Provision For The ... vs No on 8 February, 2017
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND ADDL.
MACT., BANGALORE, (SCCH-7)
Dated this, the 8th day of February, 2017.
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.3366/2015
1. Mr. Munishekar K.K., ..... PETITIONERS
S/o. Kannappa. K.A.,
Aged about 35 years.
2. Baskar. K.M.,
S/o. Munishekar. K.K.,
Aged about 12 years.
3. Yogesh. K.M.,
S/o. Munishekar. K.K.,
Aged about 7 years.
All are residing at;
No.112, N.R. Layout,
Kachnayakanahalli,
Jigani Hobli,
Hennagar Post.
(Petitioners No. 2 and 3 still minors,
represented by their father Mr.
Munishekar as natural guardian)
Address ;
No.014/1, 3rd Main Road,
Jabbar Block,
Vyalikaval, Bangalore.
SCH-7 2 MVC NO.3366/2015
(By Sri. M.G. Raghavendra, Adv.,)
V/s
1. Bajaj Allianz General ..... RESPONDENTS
Insurance Co. Ltd.,
4th Floor, Golden Heights Complex,
59th C' Cross,
Rajajinagar,
Bangalore-560 010.
(Policy No.HBA/0012716,
Honda City Car
Bearing No: TN-22-CQ-3786,
Valid from 25.06.2014 to 24.06.2015)
2. Karthy A.R.,
S/o. Rajgopal. A.
House No.3-A,
M.P. Apartment Gradha Road,
Pallavaran,
Chennai,
Tamilnadu-600043.
(R-1 By Sri. S. Krishna Kishore, Adv.,)
(R-2 By Sri. S. Shankarappa, Adv.,)
JUDGMENT
The Petitioners No.1 to 3 have filed the present petition as against the Respondents No.1 and 2 under Section 166 of the Motor Vehicles Act, 1989, praying to award compensation of Rupees 25,00,000/- with interest at the rate of 12% p.a., from the date of petition till realization in respect of death of Sri. Nagarani @ Rani W/o. Munishekar. K.K. SCH-7 3 MVC NO.3366/2015
2. The brief averments of the Petitioners' case are as follows;
a) They are husband and children of deceased Late Smt. Nagarani.
b) On 16.05.2015 at about 8.30 p.m., while deceased and some other people were waiting for Bus at Hennagara Bus Stop, at that time, a Honda City Car bearing Registration No.TN-22-CQ- 3786, which belongs to the Respondent No.2, driven by its driver, drove his vehicle in a rash and negligent manner, in a high speed and dashed to all the persons, who were waiting for Bus and due to impact of the accident, Smt. Nagarani sustained severe head injury and injuries to all over the body.
c) Immediately after the accident, she was shifted to Sparsh Hospital for treatment, from there, shifted to ESI Hospital for further treatment. For the treatment and medicines, she has incurred a medical expenditure of Rupees 2,00,000/-. Despite effective treatment given by the Doctors in the Hospitals, she could not be able to recover and hence, on 18.05.2015, she succumbed to injuries at ESI Hospital.
d) At the time of accident, she was a Tailor by avocation and as a Tailor, she was working at Shahi Exports Garments at Gonappana Agrahar and she was drawing a salary for a sum of Rupees 12,000/- per month.
SCH-7 4 MVC NO.3366/2015e) She was the only bread winner of her family and due to the untimely death of the deceased, the entire family of the deceased is put to great financial loss and mental agony.
f) The accident in question was solely due to the rash and negligent driving of the driver of the said offending Honda City Car bearing Registration No.TN-22-CQ-3786.
g) The first Respondent being the Insurer of the said offending vehicle and the second Respondent being the Owner of the vehicle and hence, they are jointly and severally liable to pay the compensation to them. Hence, this petition.
3. Initially, though the notice was duly served on the Respondent No.1, it was remained absent and hence, it was placed as exparte. Later, the Respondent No.1 has appeared before this Tribunal through its Learned Counsel and as per the Order dated 21.12.2015 passed on I.A.No.I, the exparte order is set-aside and the Respondent No.1 is taken on file. But, initially, inspite of giving sufficient opportunities, the Respondent No.1 had not filed the written statement. Later, as per the Order dated 15.07.2016 passed on I.A.No.III, the written statement filed by the Respondent No.1 is taken on file.
4. In response to the notice, the Respondent No.2 has appeared before this Tribunal through his Learned Counsel and has filed the written statement.
SCH-7 5 MVC NO.3366/20155. The Respondent No.1 inter-alia denying the entire case of the Petitioners, has further contended as follows;
a) All the material allegations made in the present petition are false and the petition is not maintainable either on facts or in law against it.
b) The present claim petition is filed by the Petitioners seeking compensation for the death of Smt. Nagarani @ Rani, who died due to the injuries suffered by her in the alleged accident dated 16.05.2015 at about 8-30 p.m., when she was waiting at Hennagara Bus Stop, she was said to have been hit by Honda City Car bearing Registration No.TN-22-CQ-3786. The said Car belongs to the Respondent No.2 and insured with it's Company.
c) It admits to have issued Policy No.OG-15-1501-1801- 00011151 for the period between 25.06.2014 to 24.06.2015 in respect of Honda City Car bearing Registration No.TN-22-CQ-3786 in favour of Mr. Karthik, that is, the Respondent No.2 and the liability of it is subject to the terms, conditions, exceptions and limitations thereof and the confirmation of the compliance of Section 64 VB of the Insurance Act, 1938.
d) As per petition averments, the alleged accident occurred on 16.05.2015 at about 82-30 p.m., when Smt. Nagarani @ Rani was waiting for the Bus at Hennagar Bus Stop and at that time, she was hit by Honda City Car bearing Registration No.TN- 22-CQ-3786 and due to that impact, she fell down, suffered grievous injuries and succumbed to the same on 18.05.2015 at SCH-7 6 MVC NO.3366/2015 ESI Hospital. The fact that, Smt. Nagarani was hit by an unknown vehicle, when she was crossing the road and with a view to claim compensation, insured Honda City Car bearing Registration No.TN-22-CQ-3786 is falsely implicated to the cause of action. Therefore, the false claim made as against the Insured and Insurer of Honda City Car bearing Registration No.TN-22-CQ-3786 is liable to be dismissed in limine.
e) Smt. Nagarani @ Rani was crossing the road and she was not waiting near Hennagara Bus Stop as alleged by the Petitioners and there is no provision for the pedestrians to cross in safe mode in that place. Since the Honda City Car bearing Registration No.TN-22-CQ-3786 was not involved causing injuries to Smt. Nagarani @ Rani as stated in the claim petition, the claim as against it may kindly be dismissed in limine.
f) The claim petition is filed under Section 166 of M.V. Act, wherein, the claimant/s is /are required to prove actionable negligence on the part of the rider/driver of offending vehicle alone. The Honda City Car bearing Registration No.TN-22-CQ- 3786 was not involved in the alleged accident dated 16.05.2015, much less, causing injuries to Smt. Nagarani as alleged by the Petitioners. Therefore, the present claim petition is not maintainable in the eye of law and the same is liable to be dismissed.
g) The driver of Honda City Car bearing Registration No.TN-22-CQ-3786 was not holding driving licence to drive the SCH-7 7 MVC NO.3366/2015 same. Hence, it is not liable to indemnify the Respondent No.2 to pay compensation in the present case.
h) It seeks protection under the Sections 147 and 149 of M.V. Act.
i) As per Section 134(c) of M.V. Act, it is the duty of the Insured to intimate the accident to the Insurer by giving the required documents and as per Section 158(6) of M.V. Act, 1988, it is a mandatory duty of the jurisdictional Police to forward all the relevant documents to the Insurer within 30 days from the date of the information. However, in the present case, both the insured/Respondent No.2 and Hebbagodi Police Station in Crime No.275/2015 failed to forward the documents and not complied with the statutory demand.
j) The Petitioner claimed compensation at Rupees 25,00,000/- with current and future interest, which is, highly excessive and the same is contrary to Section 3 of the Interest Act, 1978 and the observations of the various Judgment of the Hon'ble Apex Court.
k) The Petitioners are not entitled to claim any interest on non-pecuniary damages as per the observations of the Judgment of Hon'ble Apex Court.
l) It craves leave of this Hon'ble Court to contest the case on all the grounds apart from those specified under Section 149(2) of M.V. Act.
SCH-7 8 MVC NO.3366/2015m) It reserves their right to file an additional counter at a later stage as and when the better particulars come to its knowledge.
n) The amount of Rupees 25,00,000/- with interest and costs claimed by the Petitioners in the claim petition is more excessive, exorbitant and exaggerated and the Petitioners are not entitled for the same from it.
o) The rights and contentions and without admitting any liability, the claimant/s may be directed to furnish the NEFT details, viz., name of Bank, Branch and IFSC Code of that Branch for speedy disbursement of compensation amount if any. Such a direction by this Hon'ble Tribunal not only will be assisting it in timely disbursal of the compensation, but, also will cure issue of stale cheques, subsequent revalidations of cheques in case of other errors. This in turn will help in saving time and procuring effective utilization of manpower engaged in assisting this Hon'ble Court in the process of disposal of cases effectively.
p) Without prejudice to the rights and contentions, the claimants may be directed to furnish the details of PAN number, which may be required as per the provisions of the Income Tax Act. Hence, prayed to dismiss the petition with costs.
6. The Respondent No.2 inter-alia denying the entire case of the Petitioners, has further contended as follows;
SCH-7 9 MVC NO.3366/2015a) The present petition filed by the Petitioners for claiming the compensation from him is not maintainable either in law or in facts, so, the same is liable to be dismissed in limine.
b) The Petitioner has filed the present claim petition as against him without verifying the documents and the reagent factors. Further the documents upon which the Petitioners claiming the compensation does not create any legal right in his favour, the claim of the Petitioners against him has no any legal right to claim the compensation.
c) His vehicle Registration No.TN-22-CQ-3786, i.e., Chassis Number: MAKGM655DEN003652, Engine No:
L15Z11012288, was already insured by a Insurance Company called Bajaj Allianz, vehicle Insurance Policy No.HBA/00212716, valid till 24.06.2015. Hence, there is no liability on him.
d) The driver having a valid driving licence, i.e., D.L No.TN22 20080007535, which is valid till 19.06.2028. Hence, he No.2 is no where liable.
e) The total claim made by the Petitioner of Rupees 25,00,000/- is totally exaggeration and unreasonable without any basis. Hence, prayed to dismiss the petition.
7. Based on the above said pleadings, I have framed the following Issues;
SCH-7 10 MVC NO.3366/2015ISSUES
1. Whether the Petitioners prove that, they are the dependents and legal representatives of deceased SMT.NAGARANI @ RANI?
2. Whether the Petitioners prove that, the accident occurred due to rash and negligent driving of the Honda City Car bearing Registration No.TN-
22-CQ-3786 by its driver and Smt. Nagarani @ Rani died due to the injuries sustained in the accident?
3. Whether the Petitioners are entitled for compensation? If so, how much and from whom?
4. What Order?
8. In order to prove their case, the Petitioners have examined the Petitioner No.1 as P.W.1 and have also examined one witness as P.W.2 by filing the affidavits as their examination- in-chief and have placed reliance upon Ex.P.1 to Ex.P.14. On the other hand, the Respondents No.1 and 2 have not adduced any evidence on their behalf.
9. Heard the arguments.
10. In support of the submission, the Learned Counsel appearing for the Petitioners Sri. M.G. Raghavendra has placed reliance upon the decisions reported in, SCH-7 11 MVC NO.3366/2015
i) 2010 AIR SCW 5335 Allahabad (Arun Kumar Agrwal And Another V/s. National Insurance Company Ltd., and Others), wherein, it is observed that, MOTOR VEHICLES ACT 1988 (59 of 1988)- SECTION 168, 163(A), Sch.2, Cl.6 -
Accident - Compensation - victim house wife - Service rendered by housewife is invaluable - cannot be compared with service rendered by house - keeper/servant
- compensation to be paid by applying criteria in Cl.6 of Section 2 and applying appropriate multiplier.
C.6 of Sc.2 limiting income of spouse to 1/3 income of claimant husband not proper.
The contribution made by the wife to the house is invaluable and cannot be computed in terms of money. The gratuitous services rendered by wife with true love and affection to the children and her husband and managing the house hold affairs cannot be equated with the services rendered by others. A wife/mother does not work by the clock. She is in the constant attendance of the family thought the day and night unless she is employed. She takes care of all the requirements of husband and children including cooking of food, washing of cloths, etc., She teaches small children and provides invaluable guidance to them for their future life. A house keeper or maid -
servant can do the household work, such as cooking food, washing clothes and utensils, keeping the house clean etc., but, she can never be a substitute for a wife/mother who SCH-7 12 MVC NO.3366/2015 renders selfless service to her husband and children. It is not possible to qualify any amount in lieu of the services rendered by the wife/mother to the family i.e., husband and children. However, for the purpose of award of compensation to the dependents, some pecuniary estimate has to be made of the services of housewife/mother. In that context, the term services is required to be given a broad meaning and must be construed by taking into account the loss of personal care and attention given by the deceased to her children as a mother and to her husband as a wife. The amount payable to the dependents cannot be diminished on the ground that, some close relation like a grandmother may volunteer to render some of the services t the family which the deceased was giving earlier.
ii) 2013 ACJ 1403 Supreme Court (Rajesh and Others V/s. Rajbir Singh and others), wherein, it is observed that, Quantum - Fatal - accident - Principles of assessment - Future prospects - Whether formula for increase of income for future prospects adopted for persons with permanent jobs in Sarla Verma's Case, 2009 ACJ 1298 (SC), may also be applied to persons who were self - employed or were engaged on fixed wages - Held : yes; 50 per cent of actual income (after deduction of tax) for persons below 40 years; 30 per cent for age group of 40 to 50 years; 15 percent for age group of 50 to 60 years; but, no addition thereafter.
SCH-7 13 MVC NO.3366/2015iii) 2013 ACJ 1411 Agartala (Milan Debbarma and Others V/s. Biswakanya Debbarma (Chetri)), wherein, it is observed that, Quantum - Fatal - accident - deceased aged 37, housewife and running a tailoring shop, earning Rupees 7,000/- p.m., -
claimants: husband and 2 children - No documentary evidence of income - Tribunal assessed income at Rupees 3,000/- p.m. and awarded Rupees 3,85,000/- - appellate couirt evaluated her gratuitous services to her husband and children at Rupees 3,000/- p.m., assessed total income at Rupees 6,000/- p.m., deducted 1/3rd towards personal expenses of the deceased, adopted multiplier of 15 and allowed Rupees 7,20,000/- plus Rupees 8,000/- for loss of consortium, Rupees 7,000/- for loss to estate and Rupees 10,000/- for funeral expenses - Award of Rupees 3,85,000/-
enhanced to Rupees 7,45,000/-.
iv) 2015 AIR SCW 3105 Supreme Court (Munna Lal Jain and Another V/s. Vipin Kumar Sharma and others), wherein, it is observed that,
8. Since, the court in Santosh Devi Case actually intended to follow the principle in the case of salaried persons as laid down in Sarla Verma case and to make it applicable also to the self-employed and persons on fixed wages, it is clarified that, the increase in the case of those groups is not 30% always; it will also have a reference to the age in other words, in the case of self
- employed or persons with fixed wages, in SCH-7 14 MVC NO.3366/2015 case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects, Needles to say that, the actual income should be income after paying the tax, if any. Additional should be 30% in case the deceased was in the age group of 40 to 50 years."
The deceased being of the age of 30 years, 50% is the required addition.
vi) AIR 2012 Supreme Court 2185 (Santhosh Devi V/s. National Insurance Company Ltd., and Others), wherein, it is observed that, (B) Motor Vehicles Act (59 of 1988), S. 168 - Accident compensation - Income of deceased - Increase towards future prospects - cannot be denied to those employed on fixed wages or self employed -
30% rule has to be equally applied.
vii) AIR 2013 SC (Supp) 474 (Reshma Kumari and Others V/s. Madan Mohan and Another), wherein, it is observed that, (C) Motor Vehicles Act (59 of 1988), S.168 - Loss of dependency - Addition towards future prospects - Method for determining addition laid down.
An addition of 50% of actual salary be made to the actual salary income of the deceased towards future prospects where the deceased had a permanent job and was below SCH-7 15 MVC NO.3366/2015 40 years. The addition should be only 30% if the age of the deceased was 40 or 50 years.
No addition should be made where the age of the deceased is more than 50 years. Where the annual income is in the taxable range, the actual salary shall mean actual salary less tax. In cases where the deceased was self -
employed or was on a fixed salary without provision for annual increments, the actual income at the time of death without any addition income for future prospects will be appropriate. A departure from the above principle can only be justified in extraordinary circumstances and very exceptional cases.
vii) 2015 0 Supreme (SC) 280 (Shasikala and Others V/s. Gangalakshmamma and Another), wherein, it is observed that,
(d) Vehicles Act, 1988 - Section 168 -
Addition of future prospects in case of self employed persons - Matter left open as it has been referred to the CJI for placing before suitable larger Bench (Para 10) (2013) 9 SCC 65; (2013) 9 SCC 54 :
(1994) 2 SCC 176 ; (1996) 3 SCC 179 (2003) 3 SCC 148 ; (2009) 6 SCC 121 - Referred.
(e) Administration of Justice - Rule of 'judicial discipline and propriety' - Theory of precedents - A quorum of two Judges cannot refer the matter to five Judge Bench or larger Bench - It could refer a matter only to a three Judge Bench - However, it is open to the CJI to constitute a suitable larger Bench in accordance with law.
SCH-7 16 MVC NO.3366/201511. My answers to the above said Issues are as follows;
Issue No.1 : In the Affirmative,
Issue No.2 : In the Affirmative,
Issue No.3 : Partly in the Affirmative,
The Petitioners are
entitled for compensation of
Rupees 21,34,970/- with
interest at the rate of 9%
p.a. from the date of the
petition till the date of
payment, from the
Respondent No.1.
Issue No.4 : As per the final Order,
for the following;
REASONS
12. ISSUE NO.1 :- The P.W.1, who is the Petitioner No.1 has stated in his examination-in-chief that, the deceased Smt. Nagarani @ Rani is his wife and she succumbed to the injuries on 18.05.2015 at ESI Hospital, Rajajinagar, during the course of treatment to the accidental injuries, which caused on 16.05.2015 at about 8-30 a.m., when she was waiting for Bus at Hennagara Bus Stop along with other persons, at that time, Honda City Car bearing Registration No.TN-22-CQ-3786 dashed to her and due to which, she had sustained severe head injury and injury to all over the body. The Petitioners have produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.6 Inquest, Ex.P.7 Postmortem Report, Ex.P.8 Charge Sheet and Ex.P.9 Ration Card. The P.W.1 has stated in his SCH-7 17 MVC NO.3366/2015 cross-examination that, the Petitioners No.2 and 3, who are his sons, are residing along with him and they are studying in 9th Standard and 3rd Standard respectively. On perusal of the said oral evidence of P.W.1 as well as the contents of the said material documents, it appears that, the Petitioner No.1 is a husband and the Petitioners No.2 and 3 are minor sons of the deceased Nagarani @ Rani W/o. Munishekar. K.K., who died due to the accidental injuries on 18.05.2015 during the course of treatment to the accidental injuries, which was taken place on 16.05.2015 at 8-30 a.m., when she was waiting for Bus at Hennagara Bus Stop, against her, the offending Honda City Car bearing Registration No.TN-22-CQ-3786 dashed. Since the Petitioners No.1 is a husband and the Petitioners No.2 and 3 are the minor sons, they can very well be considered as the legal representatives of the said deceased. No doubt, the Petitioner No.1 is a husband of the deceased and being a husband, he had look after his wife and children during the life time of his wife. Further, the P.W.1, who is the Petitioner No.1 has stated in his cross-examination that, he has agricultural land at his native place measuring 1-25 Acres. But, based on the said grounds, it cannot be said that, the Petitioner No.1, who is a husband of the deceased, cannot be considered as a dependent upon the said deceased, as, it is a specific case of the Petitioners is that, at the time of accident, the deceased was working at Shahi Exports Pvt. Ltd., and drawing a salary of Rupees 8,052/- in the month of April 2015 and to consider the same, the Petitioners have also examined the employer of the said deceased and have also produced Ex.P.13 Employee Personal Details relating to Rani. V. and Ex.P.14 Pay SCH-7 18 MVC NO.3366/2015 Slips for the months of December 2014 to May 2015, which clearly disclosed that, at the time of accident, the deceased was a permanent employee and she was drawing total salary of Rupees 9,301/- p.m. As this Tribunal has already observed and come to the conclusion that, the Petitioner No.1 is a husband and the Petitioners No.2 and 3 are the minor sons of the said deceased and they are the legal representatives of the said deceased. Under such circumstances, it can be safely held that, the Petitioner No.1 being a husband and the Petitioners No.2 and 3 are being the minor sons are inter dependents upon the said deceased. Hence, all the Petitioners are considered as the legal representatives and inter dependents upon the said deceased Nagarani @ Rani W/o. Munishekar. K.K.. Accordingly, I answered Issue No.1 in the Affirmative.
13. ISSUE No.2 :- The P.W.1 has stated that, Smt. Nagarani @ Rani is his wife and she came to know that, on 16.05.2015 at about 8-30 a.m., his wife was waiting for Bus at Hennagara Bus Stop along with other persons, at that time, the Honda City Car bearing Registration No.TN-22-CQ-3786 driven by its driver drove his vehicle in a rash and negligent manner in a high speed so as to endangering to human life and dashed to his wife and other persons, who were waiting for the Bus at Hennagara Bus Stop and due to the impact, his wife sustained severe head injury and injuries all over the body. He has further stated that, immediately after the accident, his wife has shifted to Sparsh Hospital and from there, shifted to ESI Hospital at Rajajinagar for further treatment and inspite of best treatment SCH-7 19 MVC NO.3366/2015 given by the Doctors in the Hospitals, his wife succumbed to the injuries on 18.05.2015. He has further stated that, the accident was solely due to the rash and negligent driving of the driver of the offending vehicle Honda City Car bearing Registration No.TN-22- CQ-3786 and hence, Hebbagodi Police have registered a case as against the driver of the said offending vehicle.
14. No doubt, the P.W.1 is not an eye witness of the accident in question, which caused to the deceased. In this regard, the P.W.1 has stated in his cross-examination that, at the time of accident, he was not present along with his wife. Further, the Petitioners have not examined the eye witness to consider their case in the present petition. Further, the P.W.1 has stated in his cross-examination that, he does not know, who has lodged a complaint in respect of the accident in question.
15. But, based on the grounds of the non-examination of the eye witness by the Petitioners to consider the accident in question, which caused to the deceased and the evidence elicited from the mouth of P.W.1 by the Respondents, the above said oral evidence of P.W.1, which has been stated by him in his examination-in-chief cannot be thrown away and it cannot be said that, there was no negligence on the part of the driver of the offending Honda City Car bearing RegistrationNo.TN-22-CQ-3786, but, the entire negligence is on the part of the deceased in the commission of the said road traffic accident, as, to consider the oral evidence of P.W.1, the Petitioners have produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Spot Hand Sketch, Ex.P.4 Spot Panchanama, Ex.P.5 MVI Report, Ex.P.6 Inquest, Ex.P.7 SCH-7 20 MVC NO.3366/2015 Postmortem Report and Ex.P.8 Charge Sheet, which clearly disclosed that, at the time of accident, the deceased was waiting for Bus at Hennagara Bus Stop along with other persons and at that time, the offending Honda City Car bearing Registration No.TN-22-CQ-3786 came with very high speed, rash and negligent manner and dashed to the deceased and other persons and due to the said impact, the deceased had sustained severe head injury and immediately, she was shifted to Sparsh Hospital and thereafter, she was shifted to ESI Hospital for treatment to the said accidental injuries and during the course of treatment, she succumbed to the accidental injuries on 18.05.2015, which is clear from the following discussion. Further, the P.W.1 in his cross-examination has clearly stated that, the public, who were present at the accidental spot, have informed him about the accident and the Police have taken his statement at Sparsh Hospital. Further, the P.W.1 has clearly denied the suggestions put to him by the Respondents during the course of cross- examination that, when his wife was crossing the road, the alleged accident was taken place and due to the negligence on the part of his wife itself, the said accident was taken place. From this, it appears that, though the P.W.1 has been cross-examined by the Respondents, nothing has been elicited from his mouth to consider their specific defence. More so, though the Respondents No.1 and 2 have filed the Written Statement to contest the case of the Petitioners, to prove their specific defence, they have not adduced any evidence on their behalf. From this, it appears that, nothing is available on record on behalf of the Respondents to SCH-7 21 MVC NO.3366/2015 discard and to disbelieve the above said oral evidence of P.W.1 as well as the contents of Ex.P.1 to Ex.P.8, Ex.P.10 and Ex.P.11.
16. The contents of Ex.P.1 FIR and Ex.P.2 Complaint clearly disclosed that, the husband of another deceased had lodged Ex.P.2 Complaint before the Hebbagodi Police as against the driver of the offending Honda City Car bearing Registration No.TN-22-CQ-3786 by alleging that, on 16.05.2015 at 8-30 a.m., when he was waiting for Bus at Bus Stop along with his wife Radha, daughter-in-law Sowmya and granddaughter Sanvi, the offending Honda City Car bearing Registration No.TN-22-CQ-3786 came from Hosur with very high speed, rash and negligent manner by its driver and dashed to them and due to the said impact, his wife Radha died and his daughter-in-law, granddaughter and other persons had sustained severe grievous injuries including the present deceased and as such, he prayed to take necessary legal action as against the driver of the offending Car and based on Ex.P.2 Complaint, the said Police have registered a criminal case as against the driver of the offending Car for the offences punishable under Sections 279, 337 and 304(A) of IPC under Crime No.275/2015. It is also clear from the contents of Ex.P.1 FIR and Ex.P.2 Complaint that, there is no delay as such in lodging Ex.P.2 Complaint by the eye witness of the accident in question, which caused to the deceased and others.
17. The contents of Ex.P.3 Spot Hand Sketch, Ex.P.4 Spot Panchanama and Ex.P.5 MVI Report further clearly disclosed that, at the time of accident, the deceased was waiting for Bus along SCH-7 22 MVC NO.3366/2015 with other persons in the Bus Stop and at that time, the offending Honda City Car bearing Registration No.TN-22-CQ-3786 came with very high speed, rash and negligent manner by its driver and dashed to her and other persons and due to the said impact, the deceased had sustained severe head injury and there was no negligence on the part of the deceased and other persons, who were waiting for Bus at Bus stop, but, the entire negligence is on the part of the driver of the offending Car, i.e., the Respondent No.2 and if the Respondent No.2 could have taken a little care while driving the offending Car at the accidental spot by observing the deceased and other persons, he could have avoided the said road traffic accident and he could have saved the valuable life of the said deceased persons. The damages caused to the offending Honda City Car bearing Registration No.TN-22-CQ-3786 are clearly shown in Ex.P.5 MVI Report, which clearly disclosed about the terrific impact of the said road traffic accident. It is also clearly mentioned in Ex.P.5 MVI Report that, the said accident was not occurred due to any mechanical defects of the said offending Car.
18. The contents of Ex.P.6 Inquest and Ex.P.7 Post Mortem Report clearly disclosed that, the deceased had sustained severe grievous injuries all over her body including head injury and the death is due to head injury sustained. From this medical evidence, it is clearly proved that, due to the said accidental injuries itself, the deceased died during the course of treatment on 18.05.2015.
19. The contents of Ex.P.8 Charge Sheet disclosed that, since during the course of investigation, it is found that, due to very high speed, rash and negligent manner of driving of the SCH-7 23 MVC NO.3366/2015 offending Honda City Car bearing Registration No.TN-22-CQ-3786 by its driver itself, i.e., the Respondent No.2, who was a driver- Cum-R.C. Owner of the said offending Car, the said road traffic accident was taken place on 16.05.2015 at 8-30 a.m., which dashed to the deceased and other persons, who were waiting for Bus near Hennagara Gate Bus Stop and due to the said impact, the deceased and others had sustained severe grievous injuries all over their body and the deceased died during the course of treatment at ESI Hospital, Rajajinagar and another injured Radha also died and others had also sustained severe grievous injuries and also simple injuries and as such, after thorough investigation, the Investigating Officer has filed a charge sheet as against the driver of the offending Honda City Car bearing Registration No.TN- 22-CQ-3786 for the offences punishable under Sections 279, 337, 338 and 304(A) of IPC. There is no allegation leveled by the Investigating Officer as against the deceased in Ex.P.8 Charge Sheet about her negligence in the commission of the said road traffic accident.
20. From the above said material evidence, both oral and documentary, it is clearly proved that, the entire negligence is on the part of the Respondent No.2, who was a Driver-Cum-R.C. Owner of the offending Honda City Car bearing Registration No.TN-22-CQ-3786 in the commission of the said road traffic accident and there was no negligence on the part of the deceased in the commission of the said road traffic accident and the offending Honda City Car bearing Registration No.TN-22-CQ-3786 as well as the Respondent No.2, who was a Driver-Cum-R.C. SCH-7 24 MVC NO.3366/2015 Owner of the offending Car, are very much involved in the said road traffic accident, wherein, the deceased had sustained severe head injury and died during the course of treatment at Hospital due to the said accidental injuries. Accordingly, I answered Issue No.2 in the Affirmative.
21. ISSUE NO.3 :- The P.W.1 has stated that, at the time of accident, his wife was aged about 26 years. He has further stated in his cross-examination that, at the time of his marriage, the age of the deceased wife was 26 years. From the said evidence of P.W.1, it appears that, there is discrepancy in saying the exact age of the deceased at the time of accident. Further, the Petitioners have not produced any authenticated documents to consider her actual age at the time of accident. But, through P.W.2, the Petitioners have produced Ex.P.13 Employee Personal Details relating to the deceased, which disclosed that, the date of birth of the deceased is on 02.04.1985. The date of accident is on 16.05.2015. From the said dates, it appears that, at the time of accident, the deceased was 31 years old. Hence, the actual age of the deceased is considered as 31 years at the time of accident.
22. The P.W.1 has stated that, at the time of accident, his wife was hale and healthy and was working at Shahi Exports Pvt. Ltd., and the last drawn salary was of Rupees 8,052/- for the month of April 2015. The Petitioners have also examined the employer of the deceased as P.W.2, who has stated in his examination-in-chief that, the deceased Nagarani @ Rani. V. W/o. Munishekar. K.K. was appointed as a Floater and she was in the organization since 06.02.2009 till 17.05.2015 and during the SCH-7 25 MVC NO.3366/2015 period, her performance was satisfactory and her last drawn salary was Rupees 9,201/- for the month of May 2015. The P.W.2 has produced Ex.P.13 Employees Personal Details relating to Rani. V., and Ex.P.14 Pay Slips for the month of December 2014. Further, the P.W.2 has stated in his cross-examination that, in the year 2009, the deceased Rani was appointed in their Company as a Tailor, i.e., Floater and it is a permanent job and there is hike in D.A., and H.R.A., for the months of April and May 2015 and they have maintained the salary register. From the said material evidence, it is made crystal clear that, at the time of accident, the deceased was working as a Floater in Shahi Exports Pvt., Ltd., and she was a permanent employee and she was drawing a salary of Rupees 9,301/- per month. Therefore, the income of the deceased is considered as Rupees 9,301/- per month at the time of accident.
23. The P.W.1 has stated that, due to untimely death of his wife, he and his family is put to great financial loss and mental agony. He has further stated in his cross-examination that, the employer of his wife has not paid any compensation to him.
24. The P.W.2 has stated that, if the deceased Nagarani @ Rani were to be alive, has more promotional chances in the organization and she would be promoted as an Assistance Supervisor. He has further stated that, the deceased has no death benefits from insurance of their Company and she had only ESI benefit and there is hike in D.A., and H.R.A., for the months of April and May 2015.
SCH-7 26 MVC NO.3366/201525. While answering Issue No.1, this Tribunal has already observed and come to the conclusion that, the Petitioner No.1 being a husband and the Petitioners No.2 and 3 being the minor sons, are the legal representatives and inter dependents upon the said deceased. While answering Issue No.2, this Tribunal has already observed and come to the conclusion that, the entire negligence is on the part of the Respondent No.2, who was a Driver-Cum-R.C. Owner of the offending Honda City Car bearing Registration No.TN-22-CQ-3786 in the commission of the said road traffic accident and there was no negligence on the part of the deceased in the commission of the said road traffic accident and the offending Honda City Car bearing Registration No.TN-22- CQ-3786 as well as the Respondent No.2, who was a Driver-Cum- R.C. Owner of the offending Car, are very much involved in the said road traffic accident, wherein, the deceased had sustained severe head injury and died during the course of treatment at Hospital due to the said accidental injuries. Hence, the Petitioners being the legal representatives and inter dependents upon the said deceased Smt. Nagarani @ Rani W/o. Munishekar. K.K., are entitled for compensation under the following heads.
26. 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 9,301/- comes to Rupees 4,650-50. Therefore, the income of the deceased comes to Rupees 13,951-50 p.m. (Rs.9,301/- + 4,650-50).
SCH-7 27 MVC NO.3366/201527. The Petitioners No.1 to 3 are considered as inter- dependents of the deceased. Therefore, deceased left behind 3 dependents. As per the principles laid down in Sarala Varma's Case, considering the number of the dependents, i.e., 3, 1/3rd of the income has to be deducted towards personal expenses of the deceased, i.e., Rupees 4,650-50 (1/3rd of Rs.13,951-50). Therefore, loss of dependency comes to Rupees 9,301/- (Rs.13,951-50/- (-) Rs.4,650-50). 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 17,85,792/- (Rupees 9,301/- x 12 x 16). Therefore, the Petitioners are entitled for Rupees 17,85,792/- towards loss of dependency due to death of Smt. Nagarani @ Rani W/o. Munishekar. K.K.
28. The P.W.1 has stated that, for the treatment and medicines, he spent a sum of Rupees 2,00,000/-. In this regard, the Petitioners have produced Ex.P.10 Medical Bills 5 in numbers, which is amounting of Rupees 64,178/- and Ex.P.11 Medical Prescriptions 3 in numbers. The date of accident is on 16.05.2015 at 8.30 a.m. The date of death of the deceased is on 18.05.2015. From the date of accident till death, the deceased was hospitalized to take treatment to the accidental injuries. Therefore, the amount covered under Ex.P.10 Medical Bills, which is relating to the treatment to the deceased, cannot be doubted. Hence, the Petitioners are entitled for a sum of Rupees 64,178/- towards medical expenses.
SCH-7 28 MVC NO.3366/201529. As per the principles laid down in the decision reported in 2013 ACJ 1403 (Rajesh and Others V/s. Rajbir Singh and Others), loss of consortium to the Petitioner No.1, who is a husband of the deceased, should be Rupees 1,00,000/-, for loss of care and guidance for minor children should be Rupees 1,00,000/-, loss of love and affection has to be compensated by awarding Rupees 25,000/- and funeral expenses should be Rupees 25,000/-. As this Tribunal has already observed that, the Petitioner No.1 is a husband and the Petitioners No.2 and 3 are minor sons of the deceased. Hence, the Petitioner No.1 is entitled for a sum of Rupees 1,00,000/- towards Loss of consortium and the Petitioners No.2 and 3 are entitled for a sum of Rupees 1,00,000/- towards loss of care and guidance for minor children and all the Petitioners are entitled for a sum of Rupees 25,000/- towards loss of love and affection and Rupees 25,000/- towards funeral expenses.
30. It is just, proper and necessary to award a sum of Rupees 5,000/- towards transportation expenses of the dead body of deceased and Rupees 30,000/- towards loss of estate. Hence, the Petitioners are entitled for Rupees 5,000/- towards transportation expenses of the dead body of the deceased and Rupees 30,000/- towards loss of estate.
31. In this way, the Petitioners are entitled for the following amount of compensation:-
SCH-7 29 MVC NO.3366/2015Sl. No. Compensation heads Compensation amount
1. loss of dependency Rs. 17,85,792-00
2. Loss of consortium Rs. 1,00,000-00
3. Loss of care and guidance for Rs. 1,00,000-00 minor children
4. Actual medical expenses Rs. 64,178-00
5. Funeral Expenses Rs. 25,000-00
6. Loss of Love and affection Rs. 25,000-00
7. Loss of Estate Rs. 30,000-00
8. Transportation of dead body Rs. 5,000-00 TOTAL Rs. 21,34,970-00
32. In all, the Petitioners are entitled for total compensation of Rupees 21,34,970/- along with interest at the rate of 9% per annum on the above said sum from the date of petition till payment.
33. While answering Issue No.2, this Tribunal has already come to the conclusion that, the entire negligence is on the part of the Respondent No.2, who was a Driver-Cum-R.C. Owner of the offending Honda City Car bearing Registration No.TN-22-CQ-3786 in the commission of the said road traffic accident and there was no negligence on the part of the deceased in the commission of the said road traffic accident and the offending Honda City Car bearing Registration No.TN-22-CQ-3786 as well as the Respondent No.2, who was a Driver-Cum-R.C. Owner of the offending Car, are very much involved in the said road traffic accident, wherein, the SCH-7 30 MVC NO.3366/2015 deceased had sustained severe head injury and died during the course of treatment at Hospital due to the said accidental injuries. The Petitioners in the cause title of the petition have mentioned that, the Respondent No.1 is an Insurer of the offending Honda City Car bearing Registration No.TN-22-CQ-3786 and its Policy No.HBA/22212716 and valid from 25.06.2014 to 24.06.2015. The Respondent No.1 in its Written Statement has clearly admitted that, it has issued Policy No.OG-15-1501-1801-00011151 for the period between 25.06.2014 to 24.06.2015 in respect of Honda City Car bearing Registration No.TN-22-CQ-3786 in favour of Mr. Karthik, i.e., the Respondent No.2 and the liability of it is subject to the terms, conditions, exceptions and limitations thereof and the confirmation of the compliance of Section 64 VB of the Insurance Act, 1938. The Respondent No.2 in his Written Statement has clearly stated that, his vehicle bearing Registration No.TN-22-CQ-3786, i.e., Chassis Number :
MAKGM655DEN003652 and Engine No: L15Z11012288, was already insured by a Insurance Company called Bajaj Allianz, Vehicle Insurance Policy No.HBA/00212716, valid till 24.06.2015 and hence, there is no liability on him. From this material evidence, which is very much available on record, it is made crystal clear that, at the time of accident, the Respondent No.1 was an Insurer and the Respondent No.2 was a R.C. Owner of the Honda City Car bearing Registration No.TN-22-CQ-3786 and its Insurance Policy was valid, which covers the date of accident. There is no allegation leveled by the Investigating Officer in Ex.P.8 Charge Sheet as against the driver of the offending Honda City Car bearing Registration No.TN-22-CQ-3786 that, he was not having a SCH-7 31 MVC NO.3366/2015 valid and effective driving licence to drive such class of offending Car at the time of accident. The violation of the terms and conditions of the admitted Insurance Policy by the Respondent No.2 is not proved by the Respondent No.1. Under such circumstances, the Respondent No.1 being an Insurer and the Respondent No.2 being a R.C. Owner of the Honda City Car bearing Registration No.TN-22-CQ-3786, are jointly and severally liable to pay the above said compensation and interest to the Petitioners. Since, the Respondent No.1 is an Insurer, it shall indemnify the Respondent No.2. In view of the above said reasons and findings on Issues, the principles enunciated in the decisions cited by the Learned Counsel appearing for the Petitioners are aptly applicable to the present facts and circumstances of the case on hand. Hence, Issue No.3 is answered accordingly.
34. ISSUE NO.4 :- For the aforesaid reasons, I proceed to pass the following, ORDER The petition filed by the Petitioners under Section 166 of the Motor Vehicles Act, 1989, is hereby partly allowed with costs.
The Petitioners are entitled for compensation of Rupees 21,34,970/-
with interest at the rate of 9% p.a. from SCH-7 32 MVC NO.3366/2015 the date of the petition till the date of payment, from the Respondent No.1.
The Respondent No.1 shall deposit the said compensation and interest in this Tribunal, within two months from the date of this Order.
The Petitioners No.1 to 3 shall share the compensation and interest amount in the ratio of 30:35:35.
In the event of deposit of compensation and interest, 80% share relating to the Petitioner No.1 shall be released in his favour through account payee cheque, on proper identification.
Remaining 20% share relating to the Petitioner No.1 shall be kept in FD in his name, in any nationalized Bank of his choice, for a period of 3 years.
The entire shares relating to the Petitioners No.2 and 3 shall be kept in FD in their respective names, in any nationalized Bank of the choice of their SCH-7 33 MVC NO.3366/2015 guardian, till they attain the age of majority.
Advocate's fee is fixed at Rupees 1,000/-.
Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then, pronounced by me in the open Court on this, the 8th day of February, 2017.) (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 : Munishekar
P.W.2 : Mr. Oliver D' Souza
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 Hand Sketch
Ex.P.4 : True copy of Spot Panchanama
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
Ex.P.9 : Notarized xerox copy of Ration Card
SCH-7 34 MVC NO.3366/2015
Ex.P.10 : Medical Bills (5 in nos.)
Ex.P.11 : Medical Prescriptions (3 in nos.)
Ex.P.12 : Authorization Letter dated 29.06.2016
Ex.P.13 : True copy of Employee Personal Details
relating to Rani. V.
Ex.P.14 : True copies of Pay Slips for the Month of
December 2014 in May 2015 (6 in nos.)
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
-NIL-
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.