Bangalore District Court
Sri.A.Govinda Chaari vs Liberty Videocon General on 21 March, 2022
KABC020068372020
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS
TRIBUNAL, BENGALURU CITY
SCCH4
PRESENT: RAJU.M.., M.A., LL.B.,
Member, MACT
XVIII ADDL. JUDGE,
Court of Small Causes,
BENGALURU.
Dated this the 21st day of March2022
MVC No.1327/2020
PETITIONERS: 1. Sri.A.Govinda Chaari,
W/o Late Armuga Chary,
Aged about 54 years
2. Smt.Leela.R,
W/o A.Govinda Chaari,
aged 48 years,
3. Sri.Darshan.G
S/o A.Govinda Chaari,
Aged 21 years,
Petitioners No.1 and 2 are the
residents of 1/449A, Madakasira
road, Amarapuram, Anantapur,
SCCH4 2 MVC No.1327/2020
Andhra Pradesh515 281.
petitioner No.3 is the resident of
No.95, Lenin Nagra, Nittuvalli,
Near Devaraj Urs, Society,
Davanagere Southern Extension,
Karnataka577 004.
(By Sri.CR., Adv.,)
V/s
RESPONDENTS: 1. Liberty Videocon General
Insurance Company Ltd.,
Office No.1 Alyssa, 1st Floor,
Rear Portion, Old No.28,
New No.23, Richmond Road,
Bengaluru25.
(Policy No.201150020119
700237701000 valid from
29.07.2019 to 28.07.2020)
(By Sri.HKR., Adv.,)
2. Mr.Naveen.A S/o Ananthrama
Gupta.G, M/s MVG Chits Pvt Ltd.,
No.164, 4th Main Road, 7th Cross,
Chamarajpet, Bengaluru560 018.
(Exparte)
JUDGMENT
The petitioners have filed this petition U/s 166 of the Motor vehicles Act claiming compensation for the SCCH4 3 MVC No.1327/2020 death of G.Sanjay Kumar, in a motor vehicle accident that occurred on 14.02.2020.
2. The case of the petitioner, in brief, is as follows:
On 14.02.2020 at about 10.45 a.m., the deceased G.Sanjay Kumar was riding the two wheeler bearing Reg.No.KA64R5683 on BengaluruTumkur NH48, reached Arishinakunte fly over near Fishland daba, at that time a car bearing Reg.No.KA01MF8318 driven by its driver came from Bengaluru side towards Tumkur in a high speed rash and negligently as endagnerous to human life in a zig zag manner and hit to the deceased bike. Due to impact the deceased fell down and succumbed the injuries on the spot.
Immediately after the accident, the body of the deceased was shifted to Nelamangala Government Hospital and conducted the post mortem. The petitioners have spent Rs.1,00,000/ towards transportation charges SCCH4 4 MVC No.1327/2020 and the funeral and death ceremonies and other expenses.
The deceased was an employee at Sriram Tools Company Hosur, Tamilnadu and he was earning a sum of Rs.25,000/ per month and he was contributing the same to his family maintenance but due to untimely death of deceased the petitioners have suffered mentally and physically. The petitioners No.1 to 3 have lost love and affection and care taker. The respondent No.1 and 2 are owner and driver of the offending vehicle. Hence prays to award compensation of Rs.50,00,000/ with interest.
3. After service of notices the respondent No.2 is placed exparte. The respondent No.1 has appeared through its advocate and filed written statement by admitting the issuance of the insurance policy as on the date of the accident, the liability if any is subjected to terms and conditions of the policy. Further contended SCCH4 5 MVC No.1327/2020 that, the alleged accident was taken place due to careless and negligence on the part of the deceased, who was riding his motor cycle in a rash and negligent manner, without driving license, without wearing helmet and also without observing moving vehicles and himself caused the alleged accident as self negligence. Further contended that, the driver of the of was not possessed valid and effective driving license, he was knowing fully violated the policy conditions without holding valid and effective driving license to drive the vehicle. Further denied the, age, avocation and income of the deceased. The compensation claimed by the petitioners are highly exaggerated, exorbitant and imaginary. Accordingly, respondent No.1 prays to dismiss the petition against him.
4. On the basis of the rival contentions, the following issues were framed by this court:
SCCH4 6 MVC No.1327/2020
1. Whether the petitioners prove that deceased G.Sanjay Kumar died in the Motor Vehicle accident that, occurred on 14.02.2020 at about 10.45 p.m., on BengaluruTumkur NH48, due to the rash and negligence driving of the Car bearing Reg.No.KA01MF8318 by its driver?
2. Whether the petitioners prove that they are legal heirs of deceased G.Sanjay Kumar?
3. Whether respondent No.1 prove that, the driver of the car bearing Reg.No.KA01MF8318 drove the same without holding DL?
4. Whether the petitioners are entitled for the compensation? If so, what amount and from whom?
5. What order or award?
5. In order to prove the claim petition, petitioner No.2 is examined as PW.1 and got marked the documents at Ex.P.1 to Ex.P.16. When the case was put for respondents evidence inspite of given sufficient SCCH4 7 MVC No.1327/2020 opportunities the respondent did not appear. Hence the evidence of respondent is taken as nil.
6. I have heard the arguments of learned counsel for both the parties and perused the material available on record.
7. My findings on the above issues are as under.
Issue No.1: In the affirmative,
Issue No.2 : In the affirmative.
Issue No.3: In the negative,
Issue No.4: Partly in the affirmative,
Issue No.5: As per the final orders
for the following.
REASONS
ISSUE NO.1:
8. That by reiterating all the averments made in the petition, the petitioner No.2 has filed her affidavit in lieu of chief examination, which is considered as P.W.1. In support of his claim, she has produced certified copies of FIR, complaint, spot mahazar with sketch, IMV report, Inquest report, PM report and charge sheet. These SCCH4 8 MVC No.1327/2020 documents marked under Ex.P.1 to 7. As per these documents one Gajendra Char has lodged complaint with Nelamangala Traffic Police Station on 14.02.2020 alleging that, the driver of the car bearing Reg.No.KA01 MF8318 caused the accident to complainant's brother's son Shivakumar, who was proceeding on Passion Pro motor cycle bearing Reg.No.KA64R5683.
9. Upon receiving the complaint the jurisdictional police have registered FIR against the driver of the Car bearing Reg.No.KA01MF8318. Thereafter, the police have visited the place of the accident and drawn spot mahazar and sketch which are marked at Ex.P.3. As per the mahazar and sketch the accident is taken place on extreme left side of the road which leads from Bengaluru to Tumkur and the bike rider fell from fly over to service road. This fact goes to show that, there is negligence on the part of the driver of the Innova car. The damages SCCH4 9 MVC No.1327/2020 found on the both vehicles, involved in the, are also noted in Ex.P.4 IMV report. Ex.P.5 and 6 are the Inquest report and PM report of deceased G.Sanjay Kumar, wherein the injuries found on the dead body are also noted in detail. As per the PM report G.Sanjay Kumar died due to shock and hemorrhage as a result of primary cerebral and lungs injuries.
10. The jurisdictional police after completion of the investigation have filed charge sheet, as per Ex.P.7, against one Naveen.A, for punishable U/s 279 and 304(A) of IPC. In the charge sheet also it has been alleged that on 14.02.2020 at about 10.45 a.m., the accused Naveen, being the driver of Innova car bearing Reg.No.KA01MF8318, drove the same on Bengaluru Tumkur road, in a rash and negligent manner with high speed and dashed the motor cycle bearing Reg.No.KA64 R5683 wherein, the deceased was proceeding. Due to SCCH4 10 MVC No.1327/2020 which the rider of the motor cycle jumped the fly over road and fell down to service road, which is connected to Bengaluru to Tumkur road.
11. The respondent No.2 is not contesting the proceedings. The respondent No.1 has filed written statement contending that, the insured vehicle has been falsely implicated in the alleged accident by colluding with the jurisdictional police. If at all the alleged accident is taken place it is only due to careless and negligence on the part of the deceased who was riding the motor cycle bearing Reg.No.KA64R5683 in a rash and negligent manner without driving license and also without wearing helmet.
12. Looking to the defence, the respondent No.1 do not dispute the accident, but according to the said respondent, the accident was happened due to negligence of the deceased himself. The burden of proof of this fact SCCH4 11 MVC No.1327/2020 is on the respondent himself but none of the respondents entered the witness box to give evidence and also northing has been elicited during the course of PW.1,to prove that, the accident was occurred due to negligence of the deceased himself. As already discussed earlier, the accident is taken place on the extreme left side of the road. The respondent do not explained why the insured car dashed went to the the extreme left side of the road. If at all the insured car not at all dashed the motor cycle there was no chance of jumping the motor cycle and fell down on the service road. On these aspects goes to show that, there is negligence on the part of the driver of the injured vehicle.
13. In the absence of contra evidence the oral as well as documentary evidence of petitioners is to be accepted under law. Hence I come to the conclusion that G.Sanjay Kumar died due to the accidental injuries SCCH4 12 MVC No.1327/2020 sustained by him due to rash and negligent driving of the car bearing Reg.No.KA01MF8318 belongings to respondent No.2. Accordingly, I answer issue No.1 in the affirmative.
ISSUE NO.2:
14. As held herein above, the petitioners have proved that G.Sanjay Kumar died on 14.02.2020 due to the injuries sustained in RTA. The said accident is caused by driver of the vehicle belonging to the respondent No.2.
15. As contended in the petition the petitioners No.1 to 3 are the father, mother and brother of deceased G.Sanjay Kumar. The petitioners to prove their relationship with deceased, have produced notarized copies of 4 Adhar cards, including that of deceased, which are marked at Ex.P.8 and 13. Notarized copy of the family ration card is marked and SSLC Marks card SCCH4 13 MVC No.1327/2020 of deceased are also produced at Ex.P. 9 and 15. During the course of evidence the original Adhar cards are compared with the notarized copies, found correct and returned the same to the petitioners. These document supports the relationship stated in the petition.
16. In the claim petition, strict proof of relationship is not necessary like in civil suit. The respondent also not adduced contra evidence. Considering the documentary and oral evidence there are sufficient material to show that the petitioners No.1 to 3 being the father, mother and brother are the dependents of deceased. Accordingly, I answer issue No.2 in the affirmative.
ISSUE NO.3:
17. In the written statement the 1st respondent has taken up a contention that the driver of the vehicle bearing Reg. No.KA01MF8318 was not possessing the valid driving lenience but this fact is not proved by the SCCH4 14 MVC No.1327/2020 respondent No.1. Accordingly, I answer issue No.2 in the negative.
ISSUE No.4:
18. Now the quantum of compensation is to be decided. The accident took place on 14.02.2020. As per Ex.P.8 Aadhar card the date of birth of the deceased G.Sanjay Kumar, is 29.04.2000, that means as on the date of the accident deceased was aged 20 years.
19. As stated in the petition deceased was an employee Sriram tools Company, Hosur, Tamil Nadu and he was earning Rs.25,000/ per month.
In this regard, the petitioners have produced notarized copy of SSLC and Diploma Marks Card of deceased marked at Ex.P.9. Appointment letter issued by Sri.Ram Tools is marked at Ex.P.10. Three pay slips are marked at Ex.P.11, Bank Statement of deceased at Ex.P.12. As per these documents the monthly income of SCCH4 15 MVC No.1327/2020 the deceased Rs.13,701/, if professional tax of Rs.200/ is deducted the monthly income of the deceased would be Rs.13,500/, then annual income of the deceased is Rs. 1,62,000/ As per Sarala varma case the proper multiplier applicable to the age of deceased is 18. The future loss of income is Rs.29,16,000/. Since the deceased was bachelor 50% is to be deducted towards his personal expenses, then the total loss of dependency would be Rs.14,58,000/ (Rs.13,500/ X 12 X 18= Rs.29,16,000/ minus 50% = Rs.14,58,000/).
20. In Civil Special leave petition (Civil No.25590/2014 dated 31.10.2016 (National Insurance Company Ltd., Vs. Pranay Sethi & others), the Hon'ble Supreme Court has held that "While determining the income, in case the deceased was selfemployed or on a fixed salary, an addition of 40% of the established SCCH4 16 MVC No.1327/2020 income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.."
21. In another reported decision in Civil Appeal Nos.1920 of 2021 in between Kirti and Another , V/s Oriental Insurance Company Ltd., as follows;
"When it comes to the second category of cases, relating to notional income for nonearning victims, it is my opinion that the above principle applies with equal vigor, particularly with respect to homemakers. Once notional income is determined, the effects of SCCH4 17 MVC No.1327/2020 inflation would equally apply. Further, no one would ever say that the improvements in skills that come with experience do not take place in the domain of work within the household. It is worth nothing that, although not extensively discussed, this Court has been granting future prospects even in cases pertaining to notional income, as has been highlighted by my learned brother, Surya Kant, J., in his opinion (Hem Raj V. Oriental Insurance Company Limited, (2018) 15 SCC 654: Sunita Tokas V. New India Insurance Company Ltd., (2019) 20 SCC 688)".
22. As per the above decisions 40% out of loss of dependency has to be granted towards future prospects which would Rs.5,83,200/.
23. The petitioners No.1 and 2 are the father and mother of deceased. Hence I inclined to award a sum of SCCH4 18 MVC No.1327/2020 Rs.40,000/ towards loss of consortium to the petitioners, Rs.25,000/ towards loss of love and affection. Further, I inclined to award compensation of Rs.15,000/ towards funeral expenses and Rs.5,000/ towards transportation of dead body.
24. The petitioners are entitled for compensation under the following heads:
1. Loss of dependency Rs. 14,58,000/
2. Loss of future prospects Rs. 5,83,200/
3. Loss of consortium Rs. 40,000/
4. Loss of love and affection Rs. 25,000/
5. Funeral expenses Rs. 15,000/
6. Transport of dead body Rs. 5,000/ Total Rs. 21,26,200/
25. In this case, the respondent No.1 and 2 are the insurer and owner of the offending vehicle. The respondent No.1 in its objection statement admitted coverage of the insurance to the car bearing Reg.No.KA SCCH4 19 MVC No.1327/2020 01MF8318. Hence, the respondent No.1 and 2 are jointly and severally liable to pay the compensation to the petitioner and the respondent No.1 insurance company shall indemnify the compensation on behalf of the respondent No.2.
26. This court, in earlier cases, was awarded the compensation along with the interest at the rate of 12% p.a, by relying th earlier judgment of the Hon'ble supreme court. But in the recent judgment, in civil appeal No.6902/2021, in the case of Kurvan Ansari @ Kurvan V/s Shyam Kishore Murmu, the Hon'ble supreme court was pleased to award interest at the rate of 6% p.a., I answer Issue No.3 partly in the affirmative.
ISSUE NO.4:
27. For the foregoing reasons, I proceed to pass the following:
SCCH4 20 MVC No.1327/2020
ORDER
The petition filed by the petitioners U/s 166 of the Motor Vehicles Act is hereby partly allowed with cost.
The petitioner No.1 to 3 are entitled for total compensation amount of Rs.21,26,200/ with interest at the rate of 6% p.a., from the date of petition till the realization from respondents.
The respondent No.1 is directed to deposit the compensation amount within 30 days from the date of this order.
The petitioners No.1 to 3 are entitled for the compensation at the ratio of 40:40:20.
Out of total compensation awarded to the Petitioner No.1 and 2, 50% of shall released in their favour through Epayment on their proper identification and remaining SCCH4 21 MVC No.1327/2020 50% shall be kept in Fixed Deposit in any Scheduled Bank, for a period of three years, in their names.
Considering the quantum of amount awarded to petitioner No.3, it is ordered to release entire amount in his favour.
Advocate fee is fixed at 1,500/.
Draw the award accordingly.
(Dictated to the Stenographer, transcribed by her, the transcript corrected and then pronounced by me in the open court on this the 21st day of March2022) (RAJU.M) XVIII ADDL.JUDGE Court of Small Causes & MACT., Bengaluru.
ANNEXURE List of witnesses examined for petitioners:
PW.1 Smt.Leela.R List of documents marked on behalf of the petitioners:
Ex.P1 True copy of FIR
Ex.P2 True copy of Complaint
Ex.P3 True copy of Spot Mahazar with Sketch
Ex.P4 True copy of IMV report
SCCH4 22 MVC No.1327/2020
Ex.P5 True copy of Inquest report
Ex.P6 True copy of PM report
Ex.P7 True copy of Charge sheet
Ex.P8 Notarized copy of aadhar card of my deceased
son
Ex.P9 Notarized copies of SSLC and Diploma marks
cards of my son
Ex.P10 Appointment letter issued by Sri Ram Tools
Ex.P11 3 Pay slips
Ex.P12 Statement of Bank account of my son
Ex.P13 Notarized copies of the Aadhar cards of
petitioner No.1, 3 and 4
Ex.P14 Notarized copy of Diploma marks card
standing in the name of petitioner No.3 Ex.P15 Notarized copy of family ration card Ex.P16 Notarized copy of RC and insurance which is standing in the name of petitioner No.3 List of witnesses examined for Respondents:
NIL List of documents marked on behalf of the Respondents:
NIL XVIII ADDL.JUDGE Court of Small Causes & MACT., Bengaluru.