Bangalore District Court
Mr.Ramachandra vs Mr.Druvakumara.H.S on 10 August, 2021
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
Court of Small Causes, Bangalore,
DATED THIS THE 10th DAY OF AUGUST 2021
PRESENT: SRI.SANTOSH SIDDAPPA PALLEDH
B.A. LL.B (Spl.)
VII Addl. SCJ and ACMM,
Member, MACT-3, Bengaluru.
M.V.C. No.2850/2019
Petitioners: 01. Mr.Ramachandra,
S/o Hanumegowda,
Aged about 49 years,
02. Smt.Pushpa,
W/o Ramachandra.B.H,
Aged about 39 years,
03. Miss.Sushma,
D/o Ramachandra,
Aged about 22 years,
All are residing at:
HN Pura Road,
Bommanayakanahalli Village,
Hassan Alur,
Hassan District - 573 201.
(By Sri.K.N.Paramesha, Advocate)
-Vs-
Respondents : 01. Mr.Druvakumara.H.S,
S/o Shivanna,
No.711, Madivala Street,
Channapatna Extn.,
(SCCH-3) 2 MVC 2850/19
Hole Narasipura Taluk,
Hassan District - 573 201.
Owner of the Motor Cycle bearing
reg. No.KA-04-HD-6332.
(Exparte)
02. The Manager,
The Bajaj Allianz General Insurance
Co. Ltd.,
Golden Heights, 4th Floor,
No.1/2, 59th 'C' Cross,
4th 'M' Block, Rajajinagar,
Bengaluru - 560 010.
Policy No.OG-19-1934-1806-00015741
Valid from 11-08-2018 to 10-08-2019.
(By Sri.Ravi S. Samprathi, Advocate)
********
JUDGMENT
This petition is brought U/Sec 166 of the Motor Vehicles Act, 1988 for the compensation to the death of one Sri.Kiranakumar.B.R S/o Ramachandra.B.H, who died in the accident caused on 14-04-2019.
02. The brief facts are as under:-
It is the case of the petitioners that petitioner No.1 is the father, petitioner No.2 is the mother and petitioner No.3 is the sister of Kiranakumar.B.R and (SCCH-3) 3 MVC 2850/19 on 14-04-2019 at about 1.45 a.m., said Kiranakumar was proceeding on Motor Cycle bearing reg. No. KA-04-HD-6332 as pillion rider and the same was rode by his friend Santhosh, when they were at RBI Railway under bridge, Ring Road, Mysuru City, at that time the rider of said Motor Cycle rode it in rash and negligent manner and dashed against the road side divider. As a result said Kiranakumar suffered injuries and was shifted to Brindavana hospital and died. The post mortem was conducted at Mysuru Medical College and hospital.
03. According to the petitioners, the deceased was hale and healthy prior to accident and was working as Maintenance Supervisor at Shankar Electricals, Bengaluru and was getting income of Rs.23,214-00 per month. The petitioners have lost their earning source. As such they claimed Rs.25,00,000-00 (Twenty five lakhs only) as compensation against the respondents.
04. In response to the notice issued, the respondent No.1 failed to appear and hence was placed exparte. The respondent No.2 appeared through Sri.RSS Advocate and filed written statement denying the entire case of the petitioners and contended that the policy issued is only 'liability only policy' and the (SCCH-3) 4 MVC 2850/19 deceased being pillion rider is not covered under the policy and their liability does not arise. The rider of the Motor Cycle was not possessing valid licence and as such there is breach of policy conditions, their liability if any, is subject to terms and conditions of the policy. The age, avocation, income and expenses details of the deceased furnished by the petitioners are all denied as false and as such sought to dismiss the case against them.
05. Based on the aforesaid pleadings, the following Issues have been framed: -
ISSUES
1. Whether the petitioners prove that they are the LRs/dependants of deceased Sri.Kiranakumar.B.R?
2. Whether the petitioners prove that deceased Sri.Kiranakumar.B.R was died in RTA alleged to have been taken place on 14-04-2019 at about 1.45 a.m. on RBI Railway under bridge, Ring Road, Mysuru, due to negligent act of rider of Motor Cycle bearing reg. No. KA-04-HD-6332 as alleged in the petition?
3. Whether petitioners are entitled for compensation? If so, what amount & from whom?
4. What order or award?(SCCH-3) 5 MVC 2850/19
06. In support of petition contents, petitioner No.1 examined himself as P.W.1 and produced Ex.P.1 to Ex.P.14 documents and also examined two witnesses as P.W.2 and P.W.3 and through them got produced Ex.P.15 to Ex.P.19 documents. On the other hand respondent No.2 examined its Company Official as R.W.1 and through them got produced Ex.R.1 to Ex.R.4 documents.
07. Arguments are heard from both sides.
08. My findings on the aforesaid Issues are as under:-
Issue No.1 Partly 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:
REASONS
09. Issue No.1:- To prove the relation of petitioners with the deceased, the petitioners have examined petitioner No.1 as P.W.1 and he has produced documents such as Aadhaar cards of deceased and petitioner Nos.1 to 3 from Ex.P.9 to (SCCH-3) 6 MVC 2850/19 Ex.P.12. There is no such serious dispute about the relation of petitioners with that of deceased, from the respondents. The petitioner Nos.1 and 2 are the parents and petitioner No.3 is the sister of the deceased Kiranakumar. Looking to the facts of the case, it can be safely held that petitioner Nos.1 and 2 being the parents are the dependants and the legal representatives of the deceased son. However, petitioner No.3 cannot be called as dependant or legal representative as the parents are alive. Under such circumstances, in my opinion petitioner Nos.1 and 2 are definitely the dependants and the legal representatives. As such I answered Issue No.1 partly in the affirmative.
10. Issue No.2:- In this case the petitioner Nos.1 to 3 claimed that deceased Kiranakumar.B.R died due to the injuries caused by the rider of Motor Cycle bearing reg. No.KA-04-HD-6332. To prove the said facts, the petitioner No.1 has given his evidence as P.W.1 and reiterated petition averments in his chief-examination filed by way of affidavit. He has produced Ex.P.1 to Ex.P.8 and Ex.P.13 and Ex.P.14 documents such as FIR, Complaint, spot Sketch, spot Mahazar, IMV report, Post mortem report, Inquest report, Charge sheet, Appointment letter and Salary slips.
(SCCH-3) 7 MVC 2850/1911. In the cross-examination of P.W.1 nothing is elicited as he is not the eye-witness to the accident.
12. The petitioners have examined one eye- witness by name Purushotham.R.V as P.W.2 and he has deposed that on 14-04-2019 he was proceeding along with his friend in the Ring Road and at that time the rider of Motor Cycle bearing reg. No.KA-04-HD- 6332 came with high speed and dashed against the road side divider. So, according to him the rider of said Motor Cycle was negligent for this accident. He has produced copy of Statement given before the Police at Ex.P.15 and copy of Aadhaar card to prove his identity at Ex.P.16.
13. In his cross-examination he has deposed that the Motor Cycle rider crossed their vehicle with high speed and went and hit the under construction bridge. So, from this it can be said that, there is nothing to discard the fact that the rider of Motor Cycle bearing reg. No.KA-04-HD-6332 is negligent for causing the accident as alleged.
14. The respondent No.2 has given counter evidence by examining its Company Official as R.W.1 and through them got produced documents at Ex.R.1 to Ex.R.4 such as copy of Policy, copy of Notice, Postal (SCCH-3) 8 MVC 2850/19 receipt and Postal acknowledgment. But they did not emphasize on the point of negligence, rather their evidence is more about on the liability.
15. Considering these aspects, it is clear that there is only one vehicle involved in this accident i.e., KA-04-HD-6332. The Insurance Company do not dispute the fact that said vehicle is involved in the accident alleged. The Charge sheet produced at Ex.P.8 goes to show that the rider of Motor Cycle bearing reg. No.KA-04-HD-6332 is charge sheeted for the offences punishable U/Sec 279, 338 and 304(A) of IPC and Sections 128(1) and 177 of M.V. Act. It is contended by the Insurance Company that on that day the deceased was riding the Motor Cycle in intoxicated condition and as such the offence U/Sections 128(1) and 177 of M.V. Act are cited in the Charge sheet. It is noticeable that the charge sheet is filed against one Prashantha.K.R, but the name of deceased is Kiranakumar and the Police have found that the rider has violated the Motor Vehicle provisions by triple riding. There is no such whisper of intoxication by the rider. However, the Investigation Officer has mentioned that deceased Kiranakumar was under the influence of alcohol, but the respondents have not examined the Investigation Officer to contend that deceased was riding the Motor Cycle. In the absence of such material, it can only be (SCCH-3) 9 MVC 2850/19 said that the respondents failed to rebut it with cogent evidence. Therefore, in the absence of any other material, it can be firmly said that the rider of Motor Cycle bearing reg. No. KA-04-HD-6332 was negligent for this accident and for the death of Kiranakumar. Hence, I answered Issue No.2 in the affirmative.
Issue No.3:-
16. In this case the petitioners claimed that deceased was 25 years old as on the date of accident. For proving the same, the petitioners have produced Aadhaar card of the deceased at Ex.P.9 and according to it his birth year is shown as 1994. The date of accident is 14-04-2019. So, as on the date of accident deceased would be 25 years and the same is considered for calculating compensation. So, as per Sarla Verma and others Vs Delhi Transport Corporation and others case reported in 2009 ACJ 1298, the proper multiplier applicable is "18" and the same is considered.
17. The petitioners have produced the Appointment letter issued by Shankar Electricals at Ex.P.13 and Salary slips for the month of February, March and April 2019 at Ex.P.14 and claimed that deceased Kiranakumar was working as Maintenance Supervisor at Shankar Electricals and was getting (SCCH-3) 10 MVC 2850/19 income of Rs.23,214-00 per month. To prove the genuineness of these documents, the petitioners have examined Assistant Manager of Shankar Electrical Service as P.W.3 and he has produced documents at Ex.P.17 to Ex.P.19 such as Authorization letter, Salary statement of deceased and Pay slip for the month of February, March and April 2019 and contended that deceased was working as Supervisor in their company on monthly salary of Rs.24,872-00. However in the cross-examination he admits that the deceased was appointed on contract basis and after completion of probation he was confirmed as permanent employee, but he has not produced any such documents. As the concerned official is examined and produced relevant documents to show that deceased was working with Shankar Electrical and was paid salary of Rs.24,872- 00 p.m., the same cannot be discarded unless there is any contrary material elicited. It can be said that as the deceased had fixed income and after deducting the professional tax and other deductions, he was getting monthly pay of Rs.22,758-00. Therefore, it can be held that he was getting salary of around Rs.23,000-00 p.m.
18. As it is held on Issue No.1 that deceased has left only two dependants and the facts goes to show that he was unmarried, thereby following the (SCCH-3) 11 MVC 2850/19 Judgment of Hon'ble Supreme Court of India in Sarla Verma and others Vs Delhi Transport Corporation and others case reported in 2009 ACJ 1298, 50% of the income of the deceased has to be deducted for personal expenses. After deducting 50% towards personal expenses, the income remains is Rs.11,500-00 p.m. As per National Insurance Co. Ltd., Vs Pranay Sethi and others case in (2017) 16 SCC 680 and Hem Raj Vs Oriental Insurance Co. Ltd., and others case in 2018 ACJ 5, the future prospects of 40% has to be added since deceased is below 40 years and was employee with fixed salary. So, after adding 40% (Rs.4,600), the income of the deceased for calculation would come to Rs.16,100-00 p.m. Therefore, the loss of dependency for the petitioners no 1 and 2 would be as under; Rs.16,100 x 12 x 18 = Rs.34,77,600-00 (Thirty four lakhs seventy seven thousand six hundred only).
19. Since it is settled law in National Insurance Co. Ltd., Vs Pranay Sethi and others case in (2017) 16 SCC 680 that the dependants would be entitled for loss of estate to the extent of Rs.15,000-00 (Fifteen thousand only) and funeral expenses to the extent of Rs.15,000-00 (Fifteen thousand only), as such I award the same.
(SCCH-3) 12 MVC 2850/1920. The petitioner Nos.1 and 2 being the parents of the deceased are entitled for Rs.40,000-00 each (Forty thousand each) towards filial consortium as per Judgment of Hon'ble Supreme Court in United India Insurance Co., Ltd., Vs Satinder Kaur @ Satwinder Kaur & Ors case and Magma General Insurance Company case in (2018) 18 SCC 130. Hence, I award the same.
21. Therefore, the petitioners are entitled for total compensation of Rs.35,88,000-00 (Thirty five lakhs eighty eight thousand only) as under:-
1.Loss of dependency Rs.34,77,600-00
2. Loss of filial consortium (for 40,000*2= petitioner Nos.1 and 2) 80,000-00
3.Loss of estate 15,000-00
4.Transportation of dead body and funeral expenses 15,000-00 Total Rs.35,87,600-00 rounded off to Rs.35,88,000-00
22. Regarding liability:- The counsel for respondent No.2 filed written arguments and relied upon the Judgments reported in (2006) ACC 1 SC, MFA 20526/2010, MFA 8564/2018, MFA 1837/2008 and contended that when the policy is of (SCCH-3) 13 MVC 2850/19 the nature of liability only policy or act policy, the pillion rider is not covered under statute and the liability of Insurance Company does not arise and they cannot be ordered to pay and recover. On the other hand the counsel for petitioners argued stating that the policy is covered for third party risk and the Insurance Company has to be made liable. I have gone through the decisions relied. On assessing the policy produced at Ex.R.1, it is showing the title as "two wheeler liability only policy". Therefore, it is clear that the liability only policy does not apply to the owner and driver apart from the contractual liability, the statutory liability is not covered. No doubt, the policy shows that the premium is collected for third party liability as Rs.935-00, but the pillion rider cannot be termed as third party as per the Judgments referred by the counsel for respondent No.2 above. Hence, in my opinion the judgments relied by counsel for respondent aptly apply to the case on hand. As such the insurance company cannot be held liable to pay compensation. Hence, Issue No.3 is answered partly in the Affirmative.
23. Issue No.4:- In view of my findings on Issue Nos.1 to 3 as above and with regard to awarding the interest is concerned, the petitioners are entitled for simple interest at the rate of 6% per annum from the (SCCH-3) 14 MVC 2850/19 date of petition till deposit. As such I proceed to pass the following:-
ORDER The claim petition filed by the petitioners U/Sec 166 of the M.V. Act is hereby allowed in part, with costs.
Petitioners No. 1 and 2 are entitled for Rs.35,88,000-00 (Thirty five lakhs eighty eight thousand only) as compensation with interest at 6% p.a. from the date of petition till the date of deposit.
Respondent Nos.1 is liable to pay the compensation to the petitioners and shall pay the total awarded amount and deposit the same within time stipulated under section 168(3) of M.V. Act.
The case against Respondent No.2 is dismissed. On deposit of the compensation amount with interest, petitioner Nos.1 and 2 are entitled to 50% each of the amount awarded.
Out of the share amount of petitioner Nos.1 and 2, 40% each of their amount shall be deposited in their names in any nationalized or schedule bank of their choice for a period of three years and the remaining 60% each amount shall be released to them through E-
(SCCH-3) 15 MVC 2850/19payment on proper identification without any further proceedings. However, they are at liberty to withdraw the periodical interest accrued on their deposit amount from time to time.
Advocate fee is fixed at Rs.1,000-00.
Draw award accordingly.
(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in open court, on this the 10th day of August 2021).
(SANTOSH SIDDAPPA PALLEDH) VII Addl. Judge and ACMM, Bengaluru.
ANNEXURE List of witnesses examined for the petitioners:
P.W.1 Ramachandra
P.W.2 Purushotham.R.V
P.W.3 Girish.Y.M
List of documents marked on behalf of the
petitioners:
Ex.P.1 FIR
Ex.P.2 Complaint
Ex.P.3 Spot Sketch
Ex.P.4 Spot Mahazar
Ex.P.5 IMV report
(SCCH-3) 16 MVC 2850/19
Ex.P.6 Post mortem report
Ex.P.7 Inquest report
Ex.P.8 Charge sheet
Ex.P.9 Notarized copy of Aadhaar card of
deceased Kiranakumar
Ex.P.10 to Notarized copy of Aadhaar cards of Ex.P.12 petitioner Nos.1 to 3 Ex.P.13 Appointment letter issued by Shankar Electricals dt:14-11-2017 Ex.P.14 Salary slips for the month of February, March and April 2019 Ex.P.15 Statement copy of P.W.2 Ex.P.16 Notarized copy of Aadhaar card of P.W.2 Ex.P.17 Authorization letter Ex.P.18 Salary statement of deceased Kiranakumar Ex.P.19 Pay slip for the month of February, March and April 2019 List of witnesses examined for the Respondents:
R.W.1 Bhaskar.T
List of documents marked on behalf of the
Respondents:
Ex.R.1 Copy of Policy
Ex.R.2 Copy of Notice
Ex.R.3 Postal receipt
Ex.R.4 Postal acknowledgment
(SANTOSH SIDDAPPA PALLEDH)
VII Addl. Judge and ACMM,
Bengaluru.