Bangalore District Court
Smt.Prabhavathi vs Sri.Srinivas on 23 December, 2020
IN THE COURT OF III ADDL. JUDGE AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, BENGALURU. (SCCH-18)
Dated: This the 23rd day of December 2020
Present: SRI.MAHANTESH S.DARGAD
B.Sc., LL.B.,
III ADDL. JUDGE &
MEMBER, MACT
COURT OF SMALL CAUSES,
BANGALORE.
M.V.C.No.6064/2017
Petitioners 1.Smt.Prabhavathi,
W/o Late Sri.Srinivasaiah.D
Aged about 60 years.
2. Sri.D.S.V.Murthy,
S/o Late Sri.Srinivasaiah.D.
Aged about 40 years.
3. Sri.D.S.N.Prasad,
S/o Late Sri.SRinivasaiah.D
Aged about 39 years.
4.Sri.D.S.Praveen,
S/o Late Sri.Srinivasaiah.D.
Aged about 37 years.
All are residing at No.203,
Behind Vinayaka Stores,
2 SCCH-18 MVC 6064/2017
Konadasapura, Bhudigere Cross,
Virgonagar Post,
Bangalore - 49.
(By Pleader Shri.S.Nagaraja)
V/s
Respondents 1.Sri.Srinivas,
S/o Late Lakshmaiah,
Residing at No.283, 1st Cross,
New police station road,
Tank Road, K.R.Puram,
Bangalore - 36.
(By Pleader Shri.G.R.Prakash)
2.Mr.Ramachandra,
S/o Late Lakshmaiah,
Aged about 54 years,
Residing at No. 283, 1st Cross,
New police station road,
Tank Road, K.R.Puram,
Bangalore - 36.
(By Pleader Shri.G.R.Prakash)
J U D G M E N T
The petitioners have filed this claim petition against the respondent U/S. 166 of M.V. Act for seeking compensation of 3 SCCH-18 MVC 6064/2017 Rs.50,00,000/- for the death of Srinivasaiah. S/o Munilakshmaiah in a road traffic accident.
2. The brief contents of petition are as under:
On 13.06.2017 at about 8.30 p.m. Srinivasaiah.D. S/o Munilakshmaiah was crossing the road along with his wife and sisters from south to north from A 2 B hotel towards Bhattarahalli bus stand near Coffee day, Old Madras road, Bangalore, at that time, bajaj pulsar bearing No.KA-05-EW-956, the rider of the said vehicle rode in a rash and negligent manner so as to endanger human life and safety of others and dashed against the Srinivasaiah and others. Consequently Srinivasaiah was thrown and hit the footpath and succumbed to injuries. Immediately he was shifted to Victoria and Bowring & Lady Curzon hospital wherein PM was conducted and the body was handed over to the petitioners.
3. The contention of the petitioners is that, deceased Srinivasaiah, was hale and healthy at the time of accident, aged 4 SCCH-18 MVC 6064/2017 about 65 years, working as catering contractor and getting an income of Rs.30,000/- to 45,000/- per month. The deceased was maintaining the house and earning member of the family and out of his earnings, entire family was maintaining. The petitioners fell in dark and mental agony due to unnatural death of Srinivasaiah. The accident occurred due to rash and negligent riding of the rider of the bajaj pulsar bearing Reg.No.KA-05-EW-956 nd as such, the respondents are jointly and severally liable to pay compensation to the petitioners. Contending the above facts, they pray for grant of compensation with interest and cost.
4. In response to the petition notice, the respondents appeared before the court and filed their written statement.
5. The brief contents of written statement of respondent No.1 & 2 are as under:
The respondents have contended in their written statement that the petition filed by the petitioners is not maintainable either 5 SCCH-18 MVC 6064/2017 in law or on facts. Further contended that 1st respondent is the RC owner of the vehicle bearing No.KA-05-EW-956 and the 2nd respondent was riding the said vehicle. It is further contended that respondent No.1 was riding the vehicle cautiously on the extreme left side of the road and looking at the petitioner No.1 and Praveen Kumar, immediately stopped the vehicle. Praveen Kumar has fallen on the headlight of the motor cycle and there were no major injuries caused to him. Further contended that the death of Srinivasaiah due to accident is under suspicion and the CCTV footage of the incident clearly shows the negligence on the part of the petitioner. Further denied the age, avocation and income of the deceased as alleged in the claim petition. Contending the above facts, prays to dismiss the claim petition as against this respondents with cost.
7. On the basis of above pleadings, the following issues were framed:6 SCCH-18 MVC 6064/2017
1. Whether the petitioners prove that Srinivasaiah.D died due to injuries sustained by him in a motor vehicle accident that was taken place on 13-06-
2017 at about 8.30 p.m. near Bhattarahalli Coffee Day, Old Madras road, Bengaluru City, involving Bajaj Pulsar motor cycle bearing Reg.No.KA-05- EW-956 belonging to respondent No1 and the said vehicle insured with second respondent?
2. Whether the petitioners prove that, the accident has mainly occurred due to rash and negligent riding of the rider of the said vehicle?
3. Whether the petitioners prove that, they are only the legal heirs and dependants of deceased?
4. Whether the petitioners are entitled for compensation as prayed? If so, at what rate from whom?
5. What order or award?
8. In order to prove the case, the petitioner No.1 is examined as PW1 and got marked the documents at Ex.P1 to Ex.P11. 7 SCCH-18 MVC 6064/2017
9. In order to disprove the contention of the petitioners, the respondent No.2 is examined as RW.1.
10. Heard the arguments and perused the records.
11. My findings to the above issues are as under:
Issue No.1 & 2 : In the Affirmative Issue No. 3 & 4: In Partly in Affirmative Issue No.5: As per final order for the following:
R E A S O N S
12. Issue No.1 & 2 : These issues are interconnected with each other, hence in order to avoid the repetition of facts, these issues are taken together for common consideration.
13. During the course of arguments, the learned counsel for the petitioners argued by reiterating the contents of petition and also evidence put forth by PW1. Further he argued that the defence of the respondents is that the alleged accident has not occurred due to rash and negligent riding of the rider of the motor 8 SCCH-18 MVC 6064/2017 cycle bearing No.KA-05-EW-956. Further contended that the alleged accident has occurred due to rash and negligent act of deceased Srinivasaiah itself. To prove the said fact, respondents have not examined any independent eye witness and not produced any documents.
14. Further contended that the petitioners have proved their case as contended in the petition by producing oral and documentary evidence. Accordingly, they pray to allow the petition.
15. Per contra, the learned counsel for the respondent No.1 and 2 have filed written arguments and further he has argued by reiterating the contents of objection statement filed by respondent No.1 and 2. Further he argued that, the alleged accident has not occurred due to rash and negligent riding of the rider of the motor cycle bearing No.KA-05-EW-956. On the other hand, the alleged accident has occurred due to rash and negligent act of the deceased Srinivasaiah himself. The alleged incident was 9 SCCH-18 MVC 6064/2017 took place in a National Highway, the said place is not accessible to general public and it is controlled to use for the pedestrian wherein no pedestrian should cross highway, as such due to their negligence, the incident was took place.
16. Further he argued that, the petitioners have failed to prove the occupation and income of deceased and also failed to prove their case as contended in the petition by producing proper documents. Contending the above facts, he prays to dismiss the claim petition as against the respondent No.1 and 2 with cost.
17. On rival contention urged by both the parties, I intend to discuss the case on merits.
18. On perusal of evidence available on records, it reveals that, to prove their case, the petitioner No.1 has examined herself as PW-1 and she has stated in her evidence by reiterating the contents of petition. Further in support of her evidence, she has produced the documents and the same are marked as Ex.P.1 to 11. 10 SCCH-18 MVC 6064/2017 Further the evidence of PW.1 is corroborated with documentary evidence.
19. Thereafter, the counsel for the respondents have cross-examined PW.1 at length. On perusal of entire evidence of PW.1, nothing worthwile has been elicited in respect to alleged accident was took place due to rash and negligent act of deceased Srinivasaiah itself.
20. To prove the defence, the respondents have not examined any eyewitness and not produced the documents to disbelieve the case of the petitioners.
21. To prove the involvement of the alleged motor cycle and to prove the rash and negligent riding of the rider of the alleged motor cycle, in support of oral evidence of PW.1, the petitioners have relied upon the copy of police investigation papers and the same are marked as Ex-P-1 to 9 i.e. true copy of FIR with complaint, spot mahazar, rough sketch, motor vehicle report, inquest, Pm report and charge sheet. On perusal of Ex-P-1 to 9 i.e. 11 SCCH-18 MVC 6064/2017 copy of FIR with complaint, spot mahazar, rough sketch, PM report, requisition of I am of the opinion that, to inculcate Sec 304(a) IPC, police intimation, death certificate and inquest and charge sheet. On perusal of Ex.P.1 and P.9 i.e., FIR with complaint and charge sheet, it reveals that, K.R.Puram traffic police have registered a case as against the rider of the motor cycle bearing No.KA-05-EW- 956 in Cr.No.255/2017 as against the rider of the motor cycle bearing No.KA-05-EW-956 and after completion of investigation, the investigating police have filed the charge sheet as against the rider of the alleged motor cycle for the offences punishable U/s. 279, 337, 338, 304(A) of IPC., 146, 196, 3(1), 181, 115, 190(2), 5, 180 of MV Act.
22. Thereafter, rider of the alleged motor cycle i.e., respondent No.2 and owner of the vehicle i.e., respondent No.1 have not challenged the FIR, charge sheet against the rider of the alleged motor cycle.
12 SCCH-18 MVC 6064/2017
23. Considering the above facts and on perusal of evidence of PW-1 coupled with documents and for the above reason, I am of the opinion that, the oral version of the petitioners is corroborated with the documentary evidence and as such, the petitioners have proved that, the alleged accident has occurred due to sole negligence on the part of the rider of the motor cycle as contended in the petition by producing oral and documentary evidence.
24. Further on perusal of Ex.P4 and Ex.P8 i.e., copy of P.M. report and inquest report reveals that, deceased Srinivasaiah has sustained grievous injuries in the accident and succumbed to the injuries.
25. In addenda of this, in a claim for compensation U/S.166 of MV Act, 1988, the claimant has to prove the incident only on preponderance of probabilities and the standard of proof beyond reasonable doubt is not required as held by Hon'ble Apex Court in 13 SCCH-18 MVC 6064/2017 the decision reported in 2011 SAR (Civil) 319 (Kusum and others Vs. Satbir and others).
26. Looking to the oral evidence of PW1 and the documents placed before the court, I am of the opinion that the accident occurred due to the rash and negligent riding of the rider of the motor cycle bearing No.KA-05-EW-956. Hence, I answer issue No.1 & 2 in the affirmative.
27. Issue No.3:- The specific contention of the petitioners is that the petitioner No.1 is wife, petitioner No.2 to 4 are children of the deceased Srinivasaiah. So, they are legal representatives and dependants of the deceased.
28. On the other hand, the respondents have disputed the above contention of the petitioners in toto.
29. To prove the relationship of the petitioners, they have relied upon Notarised copy of Aadhar card and also police records. On perusal of the said records, it reveals that petitioner No.1 is 14 SCCH-18 MVC 6064/2017 the wife and petitioner No.2 to 4 are major children of the deceased Srinivasaiah.D. But in view of the judgment of the Hon'ble Apex Court in Civil Appeal Nos. 242-243/2020 in case of National Insurance Co.Ltd., Vs. Birender and Others. IN the said judgment, it is observed that;
" The legal representatives of the deceased have a right to apply for compensation. It must necessarily follow that event he major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependant on the deceased and not to limit the claim towards conventional heads only" 15 SCCH-18 MVC 6064/2017
30. On perusal of the said decision it is clear that the legal representatives of the deceased have a right to apply for compensation and not limit the claim towards conventional heads.
31. Considering the above, facts and circumstances of the case and on perusal of evidence of PW1 coupled with documents and for the above reasons, I am of the opinion that the petitioners are legal representatives and dependants of the deceased. Accordingly, I answer this issue in affirmative.
32. Issue No.4:- The specific contention of the petitioners is that, deceased Srinivasaiah was hale and healthy at the time of accident, aged about 65 years and working as a catering contractor and earning a sum of Rs.30,000/- per month. Further he contended that due to unexpected death of Srinivasaiah they have suffered a lot and lost their bread earner.
33. On the other hand, respondents have disputed the above contention of the petitioners in toto.
34. To prove the age, the petitioners have produced copy of aadhar card of the deceased. While perusing the same, the date of 16 SCCH-18 MVC 6064/2017 birth of the deceased is shown as 0106/1948 and alleged accident was took place on 13.06.2017. On calculation, the deceased was aged about 68 years and further more in PM report and inquest report at Ex.P.4 and 8 also mentioned the age of the deceased as 68 years, as such the same is considered as age of the deceased, then the proper Multiplier applicable to the case on hand is "5".
35. Further to prove the occupation and income of the deceased, petitioners have not furnished records, so, it is difficult to assess the income of the deceased as Rs.30,000/-p.m. as stated in the petition and evidence. In the absence of positive records in respect of the occupation of the deceased, I am of the opinion that the notional income of the deceased is considered as Rs.8,000/- per month, it would meet the ends of justice. So, the same is considered as the income of the petitioner per month. The annual income comes to Rs.96,000/-.
17 SCCH-18 MVC 6064/2017
38. At this stage, I have gone through a citation relied by the counsel for petitioners reported in 2018 ACJ page 5 (Hem Raj Vs. Oriental Ins. Co.Ltd., and others), wherein the Hon'ble Apex Court held that, there cannot be distinction where there is evidence of established income and where minimum income is determined on guess work.
39. Further in the said Judgment at para No.12 and 13 it reads thus:
"12. Leaned counsel for the insurance company submitted that in absence of actual evidence of income the principle of adding on account of future prospects can not be applied where income is determined by guess work.
13. We are of the view that there cannot be distinction where there is positive evidence of income and where minimum income is determined on guesswork in the facts and circumstances of a case. Both the situations stand at the same footing. Accordingly, in the present case, addition of 25% to the income 18 SCCH-18 MVC 6064/2017 assessed by the Tribunal is required to be made. The Tribunal made addition of 50% while the High Court has deleted the same."
40. Further as stated above, there are 4 dependents. Hence, 1/4th of the income of the deceased shall be deducted towards his personal expenses, on such deduction, the income of the deceased comes to Rs.72,000/- (Rs.96,000 -24,000/-).
41. The income of the deceased is taken as Rs.72,000/- p.a. and the multiplier 5 is applied, then the loss of dependency comes to Rs.3,60,000/-(72,000 x 5). Considering the above facts, I deem it just and reasonable to grant for compensation of Rs.3,60,000/- under the head of loss of dependency.
42. At this juncture I relied the judgment of the Hon'ble Supreme Court in Civil Appeal No.9581/2018 (Arising out of SLP (Civil) No.3192/2018) in case of Muama General Insurance Co.Ltd., Vs. Nanu Ram alias Chuhru Ram and Others. 19 SCCH-18 MVC 6064/2017
In which it is held in para No.8.7 that " A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under which the compensation it so be awarded in a death case. One of these heads is "Loss of Consortium":
In legal parlance "consortium" is a
compendious term which encompasses 'spousal
consortium; parental consortium and filial
consortium.
The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse.
Spousal consortium is generally defined as rights pertaining to the relationship of a husband
-wife which allows compensation to the surviving spouse for loss of "company, society, co-
operation, affection and aid of the other in every conjugal relation."
20 SCCH-18 MVC 6064/2017
Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training."
Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.
Consortium is a special prism reflection changing norms about the status and worth of actual relationship. Modern jurisdictions world- over have recognized that the value of child's consortium far exceeds the economic value of the compensation awarded in case of death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the 21 SCCH-18 MVC 6064/2017 parents is a compensating for loss of love, affection, care and companionship of the deceased child.
43. As stated above, petitioner No.1 is wife and petitioner No.2 to 4 children of the deceased. As such petitioner No.1 is entitled for spousal consortium and petitioner No.2 to 4 are entitled for filial consortium, as the filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit. I rely the judgment of Hon'ble Apex Court observed in Civil Appeal No.2705/2020 in case of United India Insurance Co.Ltd., Vs. Satinder Kaur @ Satvindar Kaur and others, DD on 30.06.2020. Therefore, 22 SCCH-18 MVC 6064/2017 petitioner No.1 to 4 are entitled for Rs.40,000/- each under the head of Spouse and Filial consortium.
45. Further the petitioners are wife and children of deceased, they are entitled for compensation of Rs.15,000/-under the head of loss of estate and also an amount of Rs.15,000/- is awarded under the head of transportation of dead body, funeral and obsequies ceremony expenses.
46. Considering the above facts and circumstances of the case and for the above reason, I am of the opinion that, the petitioners are entitled for total compensation under the following heads.
Compensation heads Compensation amount
Towards loss of dependency Rs.3,60,000-00
Towards loss of consortium Rs.1,60,000-00
Towards loss of estate Rs. 15,000-00
23 SCCH-18 MVC 6064/2017
Towards transportation of dead body, Rs. 15,000-00 funeral & obsequies ceremony expenses Total Rs.5,50,000-00
47. LIABILITY: As I have already discussed in issue No.1 the accident occurred due to the rash and negligent riding of the rider of the motor cycle bearing No.KA-05-EW-956.
48. The respondent No.1 and 2 being the owner and rider of the motor cycle are jointly and severally liable to pay the compensation together with interest @ 8% p.a. from the date of petition till the date of deposit. Accordingly, I answer the issue No.2 in the partly affirmative.
49. ISSUE NO.5: In view of my findings on the above issues, I proceed to pass the following;
O R D E R The claim petition filed by the petitioners U/S 166 of MV Act is hereby partly allowed with costs. 24 SCCH-18 MVC 6064/2017
The petitioners are entitled for compensation of Rs.5,50,000/- with interest @ 8% P.A. from the date of petition till the date of deposit.
The respondents are jointly and severally liable to pay the compensation with interest at 8% p.a. from the date of petition till the date of deposit within two months from the date of this order.
Out of the compensation amount awarded to the petitioners together with interest, petitioner No.1 is entitled to 70% and petitioner No.2 to 4 are entitled to 10% each of the compensation amount.
With regard to the compensation amount together with interest of petitioner No.1, 60% of the amount shall be deposited in any nationalized/scheduled bank of their choice, for a period of 3 years and remaining 40% of the amount shall be released to the petitioners through 25 SCCH-18 MVC 6064/2017 account payee cheque on proper identification. The petitioners are at liberty to withdraw the periodical interest accrued on their deposit amount from time to time.
With regard to the compensation amount together with interest of petitioner No.2 to 4, entire amount shall be released to them through account payee cheque on proper identification.
Advocate fee is fixed at Rs.500/- each.
Draw award accordingly.
(Dictated to the stenographer, transcribed by her, corrected by me and then pronounced in the open court on this 23rd day of December 2020) (MAHANTESH S.DARGAD) III ADDL. SMALL CAUSES JUDGE & ACMM, BENGALURU.
ANNEXURE List of witnesses examined on petitioner's side:
PW1 Prabhavathi 26 SCCH-18 MVC 6064/2017 List of documents exhibited on petitioner's side:
Ex-P1 True copy of FIR with complaint
Ex-P2 True copy of Spot mahazar
Ex-P3 True copy of rough sketch
Ex-P4 True copy of PM report
Ex-P5 Requisition of I am of the opinion that, to
inculcate Sec 304(a) IPC
Ex-P6 MLC intimation
Ex-P7 True copy of death certificate
Ex-P8 True copy of inquest
Ex.P9 Charge sheet
Ex.P10 Notarised copy of aadhar card of deceased
Srinivasaiah
Ex.P11 Notarised copy of adhar card of petitioner No.1
List of witnesses examined on respondents' side:
RW.1 Ramachandrappa List of documents exhibited on respondents' side:
NIL III ADDL.SMALL CAUSES JUDGE & ACMM, Bengaluru.