Bangalore District Court
T.Laksmidevi vs T.J.Sathishkumar on 5 January, 2022
KABC020116262020
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS
TRIBUNAL, BANGALORE CITY.
SCCH14
Present: Smt.Parveen A Bankapur,
B.Com.LL.B.(Spl),
Member, MACT,
XVI ADDL. JUDGE,
Court of Small Causes,
BENGALURU.
MVC No.2359/2020
Dated this the 5th day of January 2022
Petitioner/s : 1. T.Laksmidevi,
W/o T.Ramachandra,
Aged about 31 years.
2. T.Hemalatha,
D/o T.Ramachandra,
Aged about 10 years.
3.Kumari. T.Sharvani,
D/o T.Ramachandra,
Aged about 7 years.
4.Master T.Varun,
S/o T.Ramachandra,
Aged about 4 years.
Petitioner No.2 to 4 are minors,
Rep. by petitioner No.1, mother,
SCCH14 2 MVC 2359/2020
next friend.
All are R/at
Obulesupuram Village,
Kalikiri mandal,
Chittoor district,
Andra Pradesh.
(By pleader Sri.TVR)
V/s
Respondent/s 1. T.J.Sathishkumar,
S/o Jyothi, Major,
R/at No.135, Tindivanam road,
Thellar,Vandavasi taluk,
Tiruvannamali district,
Tamilnadu604406.
(Exparte)
2. The United India Ins.Co.Ltd.,
Regional Office, No.18,
Krishi Bhavan, 5th floor,
Opp. Hudson Circle,
Nrupathunga road,
Bengaluru01.
(By pleader Sri.BRB)
:JUDGMENT:
The petitioners have filed this claim petition U/Sec.166 of M.V. Act for awarding compensation of Rs.30,00,000/ in view of death of T.Ramachandra S/o Narayana in a road traffic accident dated 13.06.2020.
SCCH14 3 MVC 2359/20202. In brief, the case of the petitioners may be stated as under:
It is alleged that, on 13.06.2020 at about 10.30 a.m., when the deceasedRamachandra was proceeding in his Motorcycle bearing Reg.No.TN20AR9858, cautiously on the correct side of the road, when he was reached near Yerraiahgaripalli bus stop, On PileruRayachoty road, Balaiahgaripalli hobli, Kalakada Mandal, Chittoor district, Andhra Pradesh, while he was crossing the road by putting indicator lights and by giving hand signals, at that time a Lorry bearing Reg.No.TN25AS2799 driven by its driver in high speed, in rash and negligent manner and dashed against the motorcycle and caused the accident. Due to this accident deceased Ramachandra was sustained grievous injuries. Immediately after the accident the deceased was shifted to Government Hospital, Pileru, wherein first aid was given and then shifted to Ramadevi hospital, Tirupathi, further he was referred to higher center at Bengaluru city, on the way to the hospital on 14.06.2020 deceased was succumbed to the injuries.
Prior to this accident, deceased Ramachandra S/o Narayana was hale and healthy person and was working as Security Guard and earning a sum of Rs.15,000/ p.m., Due to this accident, the petitioners lost the earning member of SCCH14 4 MVC 2359/2020 their family and they are facing much difficulties in day today life. It is stated by the petitioners that, the said accident was occurred due to rash and negligent driving of the driver of Lorry bearing Reg.No.TN25AS2799. The respondent No.1 is the owner and respondent No.2 is the insurer of the said offending vehicle. Therefore, the petitioners are constrained to file this claim petition.
3. After service of notice, the respondent no.1 is absent and placed exparte and the respondent No.2 appeared through its counsel and filed writtenstatement.
This Respondent No.2 contended that, Petition is not maintainable either in law or on facts of the case. Further this Respondent has denied the age, avocation and income of deceased and petitioner. Further contended that, at the time of the accident driver of the offending lorry was not holding a valid and effective driving license. Further contended that, there was no rashness or negligence on the part of the driver of the lorry. Further contended that, the deceased/rider was not wearing the prescribed ISI marked helmet and hence sustained injuries to his head and resulted his death. The rider/deceased was solely responsible for his death by violating the mandatory provisions of law under the Motor Vehicles Act. Further contended that the rider of the motorcycle not having the driving license at the time of the SCCH14 5 MVC 2359/2020 accident. Further contended that, as per the documents the alleged place of accident is Chittoor district and as per petition the petitioners were ordinary resident of Kalikkiri Mandal, Chittoor, AP and owner of vehicle was resident of Tamilnadu. Hence the petition is liable to be dismissed for want of Jurisdiction, in view of the decision rendered by the Hon'ble High Court of Karnataka in the case of the Claims Manager, Shriram Gengeral Ins.Co.,Ltd., Vs. Deepally Amrutha and others, MFA 200164/2014 dated 11.01.2018. Hence, on all these grounds, this respondent has prayed for dismissal of the claim petition.
4. On the basis of above pleadings, the following issues have been framed:
ISSUES
1. Whether the petitioners prove that, they are the legal representatives of the deceased?
2. Whether the petitioners prove that Sri.Ramachandra S/o Narayana died due to injuries sustained by him in an accident occurred on 13.06.2020 at about 10.30 a.m., Yerraiahgaripalli bus stop, On PileruRayachoty road, Balaiahgaripalli hobli, Kalakada Mandal, Chittoor district, Andhra Pradesh, arising due to rash and negligent driving of driver of Lorry bearing Reg.No.TN25AS2799?
3. Whether the Petitioners are entitled for compensation? If so, how much and from whom?
4. What Order or Award?SCCH14 6 MVC 2359/2020
5. In order to prove their case, petitioner No.1, the wife of the deceased has been examined as PW1 and got marked documents as Ex.P.1 to Ex.P.17 and examined eye witness as PW.2. On the other hand, the respondent No.2 has not adduced any oral or documentary evidence.
6. Heard the arguments and perused the records. The learned counsel for the respondent has relied on MFA No.7074/2016 (MV), in between The Oriental Ins.Co.Ltd., Vs. Naresh and another.
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 : Partly in the affirmative Issue No.4 : As per final order, for the following;
:R E A S O N S:
8. Issue No.1: In this case, the petitioner No.1 is the wife, petitioner No.2 to 4 are the minor daughters and son of the deceased Ramachandra. In order to prove that they are legal heirs of the deceased, the PW.1 has produced notarized copies of Aadhar card of deceased and petitioners and ration card at Ex.P.9 to 14 respectively. These documents reveals that, Petitioner No.1 is wife, petitioner No.2 to 4 are the minor daughters and son of the deceased Ramachandra. Even the SCCH14 7 MVC 2359/2020 Respondents have not disputed the relationship between the deceased and Petitioners. Therefore, considering the facts and circumstances of the case, this Tribunal comes to the conclusion that, the Petitioners No.1 to 4 are the legal heirs of the deceased. Hence, I answer the Issue No.1 in the affirmative.
9. Issue No.2: Since the petitioners have filed this petition U/s.166 of M.V. Act therefore, the burden is upon them to prove the said accident and not only the said accident but also the alleged negligent driving by the driver of Lorry bearing Reg.No.TN25AS2799.
10. The petitioner No.1 who is the wife of the deceased Ramachandra entered into witness box as PW1 by filing her affidavit as examinationinchief and she is not an eyewitness to the said accident. Further she got marked in all 17 documents. ExP1 is copy of FIR, Ex.P2 is the complaint in Kalakadaa police Station in Crime No.200/2020 registered on 13.06.2020 against the driver of Lorry bearing Reg.No.TN25 AS2799, ExP5 is the copy of MVI report, Ex.P6 is the copy of inquest panchanama, Ex.P7 is the PM report of deceased and Ex.P8 is the copy of charge chargesheet filed against driver of the lorry for the offences punishable U/s.279 and 304(a) IPC.SCCH14 8 MVC 2359/2020
11. The documents marked at Ex.P1, 2, 5 to 8 makes it clear that on the accident was taken place on 13.06.2020 at about 10.30 am., The driver of the Lorry bearing Reg.No.TN 25AS2799 in a rash and high speed and dashed against the deceased vehicle and was sustained injuries and died on the way to the hospital on the next day. Eye witness of the accident / PW2 was lodged the complaint on the same day.
On the same day the police have conducted the spot mahazer and conducted the inquest panchanama of the deceased body. After detailed investigation I.O. has filed chargesheet against the driver of the lorry, these documents would support the case madeout by the petitioners in respect of alleged negligent driving by the driver of the said offending vehicle lorry.
12. The counsel for the respondent No.2 subjected PW1 to the crossexamination and suggested PW1 that they have falsely got implicated the said lorry in this case and no negligent on the part of the driver of the lorry, which is denied by the PW1.
13. On the other hand, the counsel for respondent No.2 has not adduced any oral or documentary evidence. In the arguments learned counsel for respondent No.2 argued that, in the claim petition U/s 166 of MV Act, it is settled law that the burden of establishing by preponderance of SCCH14 9 MVC 2359/2020 evidence, the negligence on the part of the driver or owner of the vehicle is concerned and that there was no negligence on the part of the injured is heavily on petitioner but not on the driver or owner of the offending vehicle. In this regard they relied on 2005 ACJ 1323, 2007 ACJ 1284 and 2007 AIR SCW 3591.
14. As above stated the wife of the deceased has been examined as PW1 and stated about the negligence driving of the driver of the offending vehicle. Besides, as has been stated above, the jurisdictional police have investigated the accident in question and filed the 'A' charge sheet at Ex.P8 wherein the police have made specific allegation that the accident in question had taken place because of the actionable negligence of the driver of the offending vehicle ie., respondent No.1. Besides, the respondents have not produced anything to show that he has challenged the correctness of the 'A' charge sheet filed by the jurisdictional police; hence, it is sufficient to conclude that the materials available on record are sufficient to conclude that the accident in question had taken place because of the actionable negligence of the driver of the offending vehicle.
15. Besides, it is well settled that in motor vehicle accident compensation cases the strict proof of negligence is not required. This view of this court receives support from the SCCH14 10 MVC 2359/2020 law declared by the Hon'ble Apex Court in the decision reported in 2009 (13)SCCpage530 in the case of Bimla Devi and others Vs Himachalapradesh Road Transport Corporation and another and another decision reported in AIR 2011SC1504 in the case of Paraeshwari Vs Amir Chand and others. Thus, even this ratio laid down by the Hon'ble Apex Court is also sufficient to conclude that this court is not supported to look for strict proof of negligence on the part of the driver of Lorry bearing Reg.No.TN25AS2799.
16. It is relevant to note that the petitioners have produced Ex.P.6 and 7 are the true copy of Inquest panchanama and PM report of the deceased. Therefore, after considering all the police documents and evidence of PW1 in my opinion, the petitioners have proved that the said accident was only because of actionable negligence on the part of the driver of offending vehicle and deceased was sustained grievous injuries in the said accident and died. With these observations, I have answered issue No.2 in the Affirmative.
17. Issue No.3: The petitioners have proved the Issue No.1 and the Issue No.2. The respondents have not seriously disputed the existence of insurance policy. Therefore, under these circumstances, petitioners No.1 to 4 being the legal SCCH14 11 MVC 2359/2020 heirs of the deceased Ramachandra are entitled for compensation.
18. The contentions of the petitioners that deceased was a Security Guard and earning a sum of Rs.15,000/ per month. In this regard, the petitioners have not produced any document except his ID card at Ex.P15. Therefore, this tribunal has to assess the notional income of the deceased by taking into consideration his age, occupation and place of residence and minimum wages and date of accident etc., After considering all these aspects, I am inclined to take notional income of the deceased as Rs.12,000/ p.m.,
19. As already discussed in issue No.1, petitioner No.1 is the wife, petitioner No.2 to 4 are minor daughters and son of the deceased and they are dependents on the income of the deceased.
20. As per Ex.P6 and 7 Inquest Panchanama and PM report the age of the deceased at the time of accident was 33. In the Aadhar card as per Ex.P9 of deceased birth year mentioned as 1987. Therefore, as per aadhar card deceased was aged about 33 years at the time of the accident. Since the deceased was just 33 years old at the time of the accident. Therefore, the proper multiplier for the age group from 31 to 35 years is "16".
SCCH14 12 MVC 2359/2020Besides, so far as adding of future prospects to the income of deceased is concerned, however, I have relied upon the ruling reported in 2018 ACJ 5(SC) (Hemraj Vs Oriental Insurance Co., Ltd., & Ors) wherein it is held as under:
"QuantumFatal accident Principles of assessmentFuture prospectsDeceased aged 40Upholding objection of insurance company that principle of addition on account of future prospects is not applicable where income of the deceased is determined by guesswork, High court disallowed the addition of 50 percent made by the tribunal for future prospects while computing compensationWhether addition on account of future prospects is admissible where minimum income is determined on guesswork prospects is admissible where minimum income is determined on guesswork in the absence of proof of income Held: yes; there cannot be distinction where there is evidence of income and where minimum income is determined on guesswork; executing court directed to recompute entitlement of claimants by addition 40 percent of income for future prospects and make corresponding deduction towards personal expenses."
And also considering recent judgment passed by the Hon'ble Supreme Court in Civil Special Leave Petition(Civil No.25590/2014 dated 31102016 (National Insurance Company Ltd., VS Pranay Sethi and others). Wherein it is held that, the person who is self employed and his age is SCCH14 13 MVC 2359/2020 below 40 years at the time of accident, 40% future prospects and his age is above 50 years and below 60 years at the time of accident, 25% and 10% respectively future prospects has to be added to the income of the deceased.
21. In this case, the deceased was aged about 33 years as on the date of accident. Considering the same, if 40% future prospects is added to the income of the deceased, it would out at Rs.16,800/ (12,000+40%)per month.
22. As per Sarala Verma's case, out of the said income, 1/4th is required to be deducted towards personal and living expenses. Further as stated above that, petitioner No.1 to 4, totally three persons depending on the income of the deceased, 1/4th of the income of the deceased shall be deducted towards his personal and living expenses. On such deduction, income of the deceased comes to Rs.12,600/p.m.
23. Since deceased was 33 years old, therefore, proper multiplier applicable is '16'. Therefore, petitioners are entitled for compensation of (Rs.12,600/X12X16) Rs.24,19,200/ under the head of loss of dependency.
24. Further, so far as awarding compensation under other conventional heads are concerned, the petitioner has stated that, they have spent huge amount towards shifting of dead body and performing of funeral and obsequies SCCH14 14 MVC 2359/2020 ceremony. In this regard, the Honble Supreme Court judgment passed in Civil Special Leave Petition(Civil No.25590/2014 dated 31102016 (National Insurance Company Ltd., VS Pranay Sethi and others). Wherein it is held that, as far as conventional heads are concerned the petitioner is entitled funeral expenses of Rs.15,000/ and the petitioner No.1 being wife of the deceased is entitled for compensation of Rs.40,000/ under the head for filial consortium and petitioner No.1 to 4 are entitled for compensation under the head of loss of estate at Rs.15,000/.
25. Therefore, on all possible heads, the petitioners are entitled for total compensation as under:
1. Loss of dependency Rs.24,19,200/
2. Medical expenses
3. Transportation of dead body Rs. 15,000/ and Funeral Expenses
4. Filial consortium Rs. 40,000/
5. Loss of estate Rs. 15,000/ Total Rs.24,89,200/ So, petitioners are entitled for the total compensation of Rs.24,89,200/ only.
26. Liability: The petitioners have proved that said accident occurred because of negligence on the part of driver of offending vehicle and there was no any dispute about SCCH14 15 MVC 2359/2020 insurance coverage to the said vehicle as on the date of accident. At the time of argument, learned counsel for respondent No.2 vehemently argued that, this tribunal has not jurisdiction to try this petition, as per documents accident took place at Chittor district and petitioners are also resided at Tamilnadu state, hence this petition is dismissed fr want of jurisdiction. Further in this regard learned counsel for respondent No.2 relied judgment of Hon'ble High Court of Karnataka in MFA200164/2014 dated 1112018.
Respondent No.2/Insurance company in its written statement taken a specific defence that this tribunal is not having territorial jurisdiction, as the accident had occurred at Tamilanadu, petitioners also residing at Tamilanadu.
In this regard here it is useful to refer decision of Hon'ble High Court of Karnataka in M.F.A. No.200847/2018 dated 26062018 in between The Manager lagal, Shriram General Insurance Co Ltd., Bangaluru Vs Laxmi W/o Raju Ranadive and others, wherein it is held as under;
"the accident had occurred in Sangola of Solapur District in Maharashtra State. It is in that light contended that the claim petition ought not to have been filed and entertained in Vijaypur District. In that regard though contention to that effect had been taken before the Tribunal, there is no material to indicate that there was denial of opportunity to the appellant herein and the prejudice if any caused to the appellant. In that SCCH14 16 MVC 2359/2020 background, it is noticed that the Tribunal after taking note of the contention has also kept in view the judgement of Hon'ble Supreme Court in the case of Malati Saradar Vs National Insurance Company LimitedAIR 2016 Supreme Court247 and also the judgment of this court before arriving at the conclusion that the claim petition is maintainable."
Further, in the decision of Division Bench of Hon'ble High Court of Karnataka in MFA,No.201308/2015(MV) C/w MFA Nos.201301, 201298, 201302, 201299, 201303, 201306, 201307, 201309, 201300, 201305 and 201304/2015, in between D.C. M.S.R.T.C. Solapur, Maharashtra, Vs Shankar @ Shankarao S/o Narayan Ghule and others, wherein it is held as under;
" Further, it was also observed that the High Court had failed to observe the content of Section 21 of the Code of Civil Procedure. It was also held that the jurisdiction of the Tribunal was wider than the Civil Court. The Tribunal could follow the provisions of the Code of Civil Procedure and having regard too Section 21 of the Code of Civil Procedure, objection of lack of territorial jurisdiction could not be entertained in the absence of any prejudice. Distinction was required to be drawn between a jurisdiction with regard to subject matter on the one hand and that of territorial and pecuniary jurisdiction on the other. A judgment may be a nullity in the former category but not in the latter.
It is on this reasoning it was held that unless there was any failure of justice, an award could not be set aside merely on the objection of lack of territorial jurisdiction. Given this authorities decision which is rendered following MANTOO SCCH14 17 MVC 2359/2020 SARKAR (supra), there is no substance in these appeals. The Appeals stand dismissed.
In view of the principles laid down in the above cited decisions of the Hon'ble High Court, in my considered opinion, this tribunal is having territorial jurisdiction to entertain these claim petition as the respondent No.2 insurance Company is having its branch at Bengaluru.
Therefore, the petitioners are entitled for compensation from respondent No.2. Therefore, the defence taken by the respondent No.2 cannot be sustained. Admittedly the respondent No.1 being owner and respondent No.2 being the insurer of the offending vehicle and according to respondent No.2 the policy was in force as on the date of accident. Hence, the respondent No.1 and 2 are jointly and severally liable to pay compensation to the petitioner. Hence, respondent No.2 has to indemnify the respondent No.1 and compensate the petitioners.
Further, by considering the present days FD rate of interest in the nationalized bank it is just and necessary to direct the respondent to pay the compensation amount with interest at the rate of 7% per annum from the date of petition till realization of entire compensation. Hence, I have answered issue No.3 under consideration partly in the affirmative.
29. Issue No.4: For the foregoing reasons, I proceed to pass the following;
ORDER The claim petition filed by the petitioners U/Sec.166 of M.V.Act is hereby allowed partly with costs.
The petitioner No.1 to 4 are entitled for total compensation of Rs.24,89,200/ along with interest at the rate of 7% per annum from the date of petition till its realization.
The respondents No.1 & 2 are jointly and severally liable to pay said compensation amount out of total compensation amount to the petitioners. The respondent No.2 being insurer, shall deposit the compensation amount within two months from the date of this order.
After deposit of compensation amount, 40% share is apportioned in favour of petitioner No.1 and 20% each share is apportioned in favour of petitioner No.2 to 4.
Out of compensation amount apportioned to petitioner No.1, 50% shall be kept in F.D. in her name in any nationalized or schedule bank initially for a period of 3 years with a liberty to draw periodical interest and with a direction to the bank authority not to create any charge and not to allow any premature withdrawals and remaining balance amount of petitioner No.1 with accrued interest shall be released to the petitioner No.1 through RTGS/NEFT by way of Epayment.SCCH14 19 MVC 2359/2020
Out of compensation amount apportioned to petitioner No.2 to 4, entire amount shall be deposited as F.D. in their names in any nationalized or schedule bank until their attain age of majority.
Advocate fee is fixed at Rs.2,000/.
Draw award accordingly.
(Typed by me on laptop, corrected, signed & then pronounced by me in open court on this 5th day of January, 2022) (Parveen A Bankapur) XVI ADDL.JUDGE, Court of Small Causes, Bangalore.
ANNEXURE Witnesses examined for the petitioners PW1 : Smt.Lakshmidevi PW2 : P.Narasimhulu Documents marked for the petitioners Ex.P1 Copy of FIR Ex.P2 Copy of complaint Ex.P2(a) Its Kannada Translation copy Ex.P3 Copy of alteration memo to the court Ex.P4 Copy of further complaint Ex.P4(a) Its Kannada translation copy Ex.P5 Copy of IMV report SCCH14 20 MVC 2359/2020 Ex.P6 Copy of inquest panchanama Ex.P6(a) Its Kannada translation copy Ex.P7 Copy of PM report Ex.P8 Copy of charge sheet Ex.P9 to 13 Notarized copy of aadhar card Ex.P14 Notarized copy of ration card Ex.P15 Notarized copy of ID card Ex.P16 Notarized copy of entry permit card Ex.P17 Copy of spot sketch Witnesses examined for the respondents: None Documents marked for the respondents Nil XVI ADDL.JUDGE , Court of Small Causes & MACT., Bengaluru.