Bangalore District Court
Susheela vs Hdfc Ergo General on 7 February, 2017
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS TRIBUNAL,
BANGALORE CITY.
SCCH-14
PRESENT: BASAVARAJ CHENGTI., B.Com.,LL.B.,(spl)
Member, MACT,
XVI ADDL. JUDGE,
Court of Small Causes,
BANGALORE.
MVC No.3679/2015
Dated this the 7th DAY OF February 2017
PETITIONER/S : SUSHEELA
Aged about 38 years
W/o Manjunatha
R/at Nanjappa Building
Chikka Begur Gate
Koodlu Gate,
Hosur road,
Bengaluru-560 068.
(By pleader Sri GM)
V/s
RESPONDENT/S 1. HDFC ERGO GENERAL
INS.,CO.LTD.,
No.25/1, II floor,
Shankar Narayan Building,
M.G road,
Bengaluru-560 001.
2. JABEE
Major
#126, Attibele Village,
Anekal Taluk,
Bengaluru-562107.
(R1-By pleader Sri RSS,
R2-Exparte)
SCCH-14 2 MVC No.3679/2015
JUDGMENT
This claim petition is filed by the petitioner U/Sec.166 of the Motor Vehicles Act for grant of compensation for the death of M.Girish S/o Manjunatha in a road traffic accident.
2. Brief averments of the petition are as under:
The petitioner is the mother of the deceased Girish who was aged 20 years, was working as delivery boy in ADECCO India Pvt., Ltd., and was earning Rs.11,156/- per month. On 11.08.2015 at about 03.45 p.m., the deceased was riding his motorcycle bearing No.KA-51-EJ-2270 on the left side of the road Opp. SFS School, Hebbagodi, Anekal Taluk, Bengaluru carefully and cautiously and at that time, Tempo-407 bearing no.KA-25-6659 driven by its driver at high speed, in rash and negligent manner came and dashed against the motorcycle. Due to impact, the said Girish fell down and sustained severe injuries to his head and other parts of his body and he succumbed to the injuries on the spot. After post mortem, the dead body was handed over to the petitioner. The deceased was only bread earning member of the family. He had no vices, was very affectionate to the petitioner. Due to sudden death of the deceased, the petitioner is facing lot of mental shock, agony and financial loss. Hebbagodi police have registered Cr.No.486/2015 against the driver of Tempo-407 bearing no.KA- 25-6659 for the offences punishable U/s 279, 307, 304(A) of IPC. After investigation, the police have filed a charge sheet against him. The respondents are the insurer and owner of the said vehicle SCCH-14 3 MVC No.3679/2015 and are liable to pay compensation. Hence, the petitioner has sought for awarding compensation of Rs.24,00,000/- with cost and interest.
3. In pursuance of the notice, the respondent no.1 has appeared before the Court through his counsel and filed written statement denying the averments of the petition as false and contended that the petition is not maintainable either in law or on facts. He has admitted the issuance of the policy in favour of the respondent no.2 in respect of Tempo-407 bearing no.KA-25-6659, but he has contended that the insured vehicle was not involved in the accident, that the insured and concerned police have not complied with their mandatory duties, that the driver of the insured vehicle was not holding a valid and effective driving licence and the said vehicle was not having valid FC and permit as on the date of accident, that the insured has violated the terms and conditions of the policy, that the deceased sustained injuries due to fall from motorcycle which he was riding, that the tempo was being driven in a reasonable speed and careful manner and there was no rashness or negligence on the part of the driver of tempo, that the compensation claimed is highly excessive, exaggerates, arbitrary and speculative when compared to comparable cases, which have been disposed off. Hence, he has sought for dismissal of the petition with costs. The notice was not served upon the respondent no.2 in the ordinary course. Hence, notice was issued to him by substitute service i.e., by paper publication. In spite of publication of notice in newspaper, the respondent no.2 remained absent and hence, he is placed exparte.
SCCH-14 4 MVC No.3679/20154. On the basis of above pleadings, the following issues were framed:
1. Whether the petitioners prove that M.Girish S/o Manjunatha died due to injuries sustained by him in an accident occurred on 11.08.2015 at about 03.45 p.m., Opposite SFS School, Hebbagodi, Anekal Taluk, Bangalore, arising due to rash and negligent driving of driver of Tempo bearing No. KA-25-6659?
2 Whether the petitioners are entitled for any compensation? If so, how much and from whom?
3. What Order or award?
5. During the evidence, the petitioner has examined herself as PW.1 and examined two witnesses as PW.2 and 3. She has got marked documents as Ex.P1 to 14. The respondent No.1 has examined his officer as RW.1 and got marked documents as Ex.R1 to 3.
6. Heard the arguments. The counsel for the petitioner has relied upon following rulings:
1. 2014 AcJ 2711 (KAR) :Rangappa Vs., Jayaramaiah & Anr.,
2. ILR 2014 KAR 191: Shri.Rangappa @ Rangapa Shetty Vs., Shri Jayaramaiah & Anr., I have gone through said rulings and perused the records.SCCH-14 5 MVC No.3679/2015
7. My findings on the above issues are as under:-
Issue No.1 : In affirmative.
Issue No.2 : In affirmative, for Rs.17,00,000/-
from the respondent No.1.
Issue No.3 : As per final order :
for the following:
REASONS
8. ISSUE NO.1: There is no dispute that Girish S/o Manjunatha died due to injuries sustained by him in the accident occurred on 11.08.2015 at about 03.45 p.m., near SFS School, Hebbagodi, Anekal Taluk, Bengaluru. It is an admitted fact that the respondents are the insurer and owner of Tempo 407 bearing no:KA-25-6659 and the policy was in force on the date of accident. Ex.R1 is copy of policy and it confirms that the respondent no.2 has issued insurance policy in favour of the respondent no.2 in respect of Tempo 407 bearing no:KA-25-6659 and the policy was in force at the time of accident. The petitioner has pleaded that the accident was due to sole negligence of driver of Tempo 407 bearing no:KA-25-6659. The respondent no.1 has denied the contention of the petitioner as false and contended the accident was due to sole negligence of the deceased as it was a self fall. The respondent no.2 is exparte.
9. P.W.1 Smt. Susheela is the petitioner and she has reiterated the averments of the petition. She has produced copies of police records namely, FIR with complaint, Panchanama, Sketch, PM report, Inquest report and charge sheet which are marked as Ex.P1 to Ex.P5 and Ex.P10. The said documents SCCH-14 6 MVC No.3679/2015 corroborate the evidence of P.W.1 and reveal that Girish S/o Manjunatha died due to the injuries sustained by him in road traffic accident, that Hebbagodi police have registered Crime no:486/15 on 11.08.2015 at about 06.15 p.m. on the basis of information given by one Harisha, investigated the matter and filed charge sheet against the driver of Tempo 407 bearing no:KA-25- 6659 for the offences punishable u/s 279, 337 and 304(A) of IPC. There was no delay in lodging complaint. R.W.1 has deposed as per the defence of respondent no.1, but he did not turn up for cross examination. Hence, his evidence is not a legal evidence and it cannot be considered. There is nothing on record to rebut the oral and documentary evidence adduced by the petitioner. Charge sheet filed by police is prima facie evidence as to negligence of driver of Tempo 407 bearing no:KA-25-6659 for the occurrence of accident. There is no evidence to disbelieve the contents of charge sheet and to hold that the investigation done by the police is defective or collusive. Panchanama and sketch at Ex.P2 and Ex.P3 disclose that the deceased was proceeding on the western portion of the road which was correct side for him, that Tempo 407 bearing no:KA-25-6659 was driven in the same direction and was dashed against the motorcycle of the deceased. There was sufficient space for the driver of Tempo to proceed further without causing accident. There is no evidence that brake system of the Tempo was not in order and the accident was due to mechanical defects. There is no oral or documentary evidence to believe that the deceased was also negligent and contributed for the occurrence of accident.
SCCH-14 7 MVC No.3679/201510. P.W.2 Nagesh is an eye witness to the accident and he has supported the version of P.W.1 regarding manner of accident. Except bare denials, nothing is elicited from him to disbelieve his evidence. Thus, evidence of P.W.1 and 2 and contents of Ex.P1 to Ex.P5 and Ex.P10 collectively establish the averments of the petition. Evidence of R.W.1 and contents of Ex.R1 to Ex.R3 are not sufficient to prove the defence of respondent no.1. There is no oral or documentary evidence regarding sole or contributory evidence of the deceased. Hence, I hold that the petitioner has succeeded to prove this issue and I answer the issue in affirmative.
11. ISSUE No.2: The petitioner has claimed compensation of Rs.24,00,000/- from the respondents for the death of Girish stating that she is the mother and LR of the deceased. The respondent no.1 has denied the claim of the petitioner as false and contended that the petitioner is not entitled for the compensation as claimed in the petition.
12. P.W.1 Smt. Susheela has deposed that she is the mother of the deceased Girish. Except bare denials, nothing is elicited from her to disbelieve her evidence regarding relationship between the petitioner and the deceased. The petitioner has produced copy of Voter ID of the deceased and of herself with copy of Ration Card. The said documents are at Ex.P7 to Ex.P9 and they corroborate the evidence of P.W.1 and disclose that the petitioner is the mother of the deceased Girish. The deceased was a bachelor and was residing with the petitioner. There is no evidence that the SCCH-14 8 MVC No.3679/2015 petitioner was living independently. Hence, I am of the opinion that the petitioner is the Class I heir and LR of the deceased. She was depending upon the income of the deceased. Hence, she is entitled for compensation for the death of Girish in a road accident.
13. P.W.1 Smt. Susheela has deposed that the deceased was aged 21 years, was working as delivery boy at ADECCO India Pvt. Ltd., and was getting salary of Rs.11,585/- p.m., Documents at Ex.P4 to Ex.P7, Ex.P12 to Ex.P14 corroborate her evidence. P.W.3 Suresh has supported the version of P.W.1 regarding occupation and income of the deceased. There is nothing on record to disbelieve the oral evidence of P.W.1 and 3. Age of the deceased is shown as 21 years in P.M. Report and Inquest report at Ex.P5 and Ex.P6. His date of birth is mentioned as 10.03.1994 in Voter ID at Ex.P7. It means the deceased was aged 20 years. There is no evidence to disbelieve the date of birth shown in Voter ID. Hence, I hold that the deceased was aged 20 years as on the date of accident. Appropriate multiplier is 18.
14. Salary slips from April to July are at Ex.P6. P.W.3 has produced copy of appointment letter, salary register extract and pay slips for the month from June to August 2015. On perusal of oral evidence of P.W.1 and 3 and contents of Ex.P6, 12 to 14, it reveals that the deceased was working as delivery boy in ADECCO India Pvt. Ltd., on a monthly salary of Rs.10,242/-, that the deceased has drawn a salary of Rs.10,291/- for the month of June 2015, Rs.11,156/- for the month of July and August 2015. The SCCH-14 9 MVC No.3679/2015 said salary doesn't attract any income tax. Since, there is variation in the monthly salary, I am inclined to assess the income of the deceased @ Rs.10,000/- per month. He was working on a fixed wages. His salary is subject to increment. He was aged 20 years at the time of accident. Hence, 50% amount shall be added towards future prospectus as per ruling of Hon'ble Supreme Court in Munnalal Jain case. After addition of 50% amount, gross income of the deceased comes to Rs.15,000/- per month. He was a bachelor and the petitioner was the only dependent. Hence, 50% amount shall be deducted towards personal expenses of the deceased. After deduction of said amount, net income of the deceased comes to Rs.7,500/- per month. His annual income comes to Rs.90,000/- p.a., The petitioner has lost her dependency. She has lost love and affection and estate of the deceased. She has spent amount for transportation of dead body and funeral expenses. Hence, I am of the opinion that the petitioner is entitled for just and reasonable compensation as under:
1 Loss of dependency Rs.16,20,000/- Rs.90,000 x 18 2 Loss of love and affection Rs. 25,000/- 3 Loss of estate Rs. 25,000/-
4 Transportation and Rs. 30,000/-
funeral expenses TOTAL Rs.17,00,000/-
Hon'ble Supreme Court in Civil Appeal No.3238/2015 (arising out of SLP (C) 1865/2014 (Chanderi Devi and Anr., Vs. Jaspalsingh & Ors.,) and Hon'ble High Court in MFA No.2326/2016 (Annapurna & Ors., G.Ashawathraya & Anr.,) have SCCH-14 10 MVC No.3679/2015 held that rate of interest shall be @9% p.a., Hence, I hold that the petitioner is entitled for interest @9% p.a., from the date of petition till the date of payment.
LIABILITY
15. The respondents are the insurer and owner of Tempo 407 bearing no.KA-25-6659. The accident was due to sole negligence of the driver of said vehicle. Therefore, the respondents are jointly and severally liable to pay compensation to the petitioners. The respondent no.1 has contended that the respondent no.2 has violated the policy conditions by allowing a person without having driving license to drive the same and using the vehicle without Permit and FC and as such, he is not liable to indemnify the respondent no.2. He has examined R.W.1 and got marked Ex.R1 to 3 to prove his defence, but R.W.1 didn't turn up to undergo cross examination. Hence, evidence of R.W.1 is no evidence and it cannot be considered. Ex.R1 to 3 are not sufficient to prove his defence. On the other hand, rulings relied by the petitioner have laid down a principle that even if there is no FC, the insurer is liable. Thus, the respondent no.1 has failed to prove his defence. Hence, the respondent no.1 is liable to indemnify the respondent no.2 and to compensate the petitioners as stated above. Hence, I answer the issue as above.
16. ISSUE NO.3: In view of above discussion and findings, I proceed to pass the following:
SCCH-14 11 MVC No.3679/2015ORDER The petition filed by the petitioner U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioner is entitled for a compensation of Rs.17,00,000/- with interest @ 9% per annum from the date of petition till the date of payment.
The respondents are jointly and severally liable to pay to the petitioner a compensation of Rs.17,00,000/- with interest. In view of the policy, the respondent No.1 is directed to deposit the amount before court within one month from the date of order.
After deposit, Rs.7,00,000/- shall be deposited in the name of the petitioner in any nationalized, scheduled or cooperative bank for a period of 3 years. Balance amount and interest shall be released in her favour through account payee cheque with proper identification.
Advocate's fee is fixed at Rs.5,000/-.
Draw award accordingly.
(Dictated to the Stenographer, directly on computer and then corrected by me and pronounced in the open court, on this the 7th day of February 2017).
(BASAVARAJ CHENGTI) XVI ADDL.JUDGE Court of Small Causes& MACT,, Bangalore.SCCH-14 12 MVC No.3679/2015
ANNEXURE WITNESSES EXAMINED AND DOCUMENTS MARKED FOR PETITIONERS AND RESPONDENTS:
PW.1 Susheela
PW.2 Nagesh R
PW.3 Suresh G.S
Respondent' s
RW-1 Jaishekar V.R
Ex.P1 - Copy of FIR with complaint
Ex.P2 - Copy of panchanama
Ex.P3 - Copy of Sketch
Ex.P4 - Copy of PM report
Ex.P5 - Copy of Inquest report
Ex.P6 - Salary slips(5 in nos.,)
Ex.P7 - Copy of Voter ID of deceased
Ex.P8 - Copy of Voter ID of the petitioner
Ex.P9 - Copy of Ration card
Ex.P10 - Copy of charge sheet
Ex.P11 - Authorisation letter
Ex.P12 - Copy of appointment letter
Ex.P13 - Salary register extract
Ex.P14 - Pay slips (3 in nos)
Respondent's
Ex.R1 - Copy of Policy
Ex.R2 -Un-served Postal cover address to R2
Ex.R3 -Copy of RTI application with copy of postal order
XVI ADDL.JUDGE
Court of Small Causes& MACT,,
Bangalore.
SCCH-14 13 MVC No.3679/2015
Dt.07.02.2017
P-GM
R1-RSS
R2-Exparte
For Judgment
Order pronounced in open court
vide separate judgment.
ORDER
The petition filed by the petitioner U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioner is entitled for a compensation of Rs.17,00,000/- with interest @ 9% per annum from the date of petition till the date of payment.
The respondents are jointly and severally liable to pay to the petitioner a compensation of Rs.17,00,000/- with interest. In view of the policy, the respondent No.1 is directed to deposit the amount before court within one month from the date of order.
After deposit, Rs.7,00,000/- shall be deposited in the name of the petitioner in any nationalized, scheduled or cooperative bank for a period of 3 years. Balance amount and interest shall be released in her favour through account payee cheque with proper identification.
Advocate's fee is fixed at Rs.5,000/-. Draw award accordingly.
XVI ADDL.JUDGE, Court of Small Causes, BANGALORE.SCCH-14 14 MVC No.3679/2015
AWARD SCCH NO.14 BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA : BANGALORE CITY MVC No.3679/2015 PETITIONER/S : SUSHEELA Aged about 38 years W/o Manjunatha R/at Nanjappa Building Chikka Begur Gate Koodlu Gate, Hosur road, Bengaluru-560 068.
(By pleader Sri GM) V/s RESPONDENT/S 1. HDFC ERGO GENERAL INS.,CO.LTD., No.25/1, II floor, Shankar Narayan Building, M.G road, Bengaluru-560 001.
2. JABEE Major #126, Attibele Village, Anekal Taluk, Bengaluru-562107.
(R1-By pleader Sri RSS, R2-Exparte) WHEREAS, this petition filed on by the petitioner/s above named U/sec.166 of the M.V.C. Act, praying for the compensation of Rs.
(Rupees ) for
SCCH-14 15 MVC No.3679/2015
the injuries sustained by the petitioner/Death of in a
motor Accident by vehicle No.
WHEREAS, this claim petition coming up before
Sri/Smt.Basavaraj Chengti, XVI Addl.Judge, Court of Small Causes, Bangalore, in the presence of Sri/Smt. Advocate for petitioner/s and of Sri/Smt. Advocate for respondent.
ORDER The petition filed by the petitioner U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioner is entitled for a compensation of Rs.17,00,000/- with interest @ 9% per annum from the date of petition till the date of payment.
The respondents are jointly and severally liable to pay to the petitioner a compensation of Rs.17,00,000/- with interest. In view of the policy, the respondent No.1 is directed to deposit the amount before court within one month from the date of order.
After deposit, Rs.7,00,000/- shall be deposited in the name of the petitioner in any nationalized, scheduled or cooperative bank for a period of 3 years. Balance amount and interest shall be released in her SCCH-14 16 MVC No.3679/2015 favour through account payee cheque with proper identification.
Advocate's fee is fixed at Rs.5,000/-.
Given under my hand and seal of the Court this day of 2017.
MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, METROPOLITAN AREA: Bangalore.
SCCH-14 17 MVC No.3679/2015By the __________________________________ Petitioner/s Respondent No.1 No.2 __________________________________ Court fee paid on petition 10-00 Court fee paid on Powers 01-00 Court fee paid on I.A. Process Pleaders Fee _____________________________ Total Rs. ------------------------------------
Decree Drafted Scrutinised by
MEMBER, M.A.C.T.
METROPOLITAN: BANGALORE.
Decree Clerk SHERISTEDAR
SCCH-14 18 MVC No.3679/2015