Bangalore District Court
In 1. Sri D.T. Prasad vs In All 1. Sri Sharanappa on 9 June, 2016
BEFORE THE COURT OF SMALL CAUSES AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, AT BANGALORE (SCCH-16)
PRESENT: SRI. SATISH J.BALI,
B.Com., LL.M.,
X Addl. Judge, Court of Small Causes
(SCCH-16) Bangalore.
DATED THIS THE 09th DAY OF JUNE 2016
MVC Nos.513/2013, 514/2013 & 1049/2013
Petitioners in 1. Sri D.T. Prasad,
MVC 513/2013 S/o D.M. Thamaiah,
Aged about 53 years,
2. Smt. Girijamma,
W/o Pradad D.T.,
Aged about 43 years,
Both are residing at D.M. Kurke,
No.2, Arasikere Taluk,
Hassan District.
Presently both are residing at
No.4, 1st Main road,
4th Cross, Shabarinagara,
(Siddappa Layout)
Byatarayanapura,
Bellari Road,
Bangalore.
(N.R. Naik & Associates,
Advocates)
Petitioners in 1. Sri Mahadevanayak,
MVC 514/2013 S/o Siddanayak @
Chikkamadanayak,
Aged about 50 years,
2. Smt. Gurusiddamma,
2 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
W/o Mahadevanayak,
Aged about 42 years,
Both are residing at
No.11, Huthur-1,
Kollegal Taluk,
Mysore District.
Presently residing at
No.4, Old Guddadahalli,
Mysore road, Bangalore.
(N.R. Naik & Associates,
Advocates)
Petitioners in 1. Sri Srinivasa Murthy M.,
MVC 1049/2013 S/o Munishamappa,
Aged about 30 years,
Residing at No.D 12,
Police Quarters,
Mahadevapura,
Byappanahalli Police Station,
Bangalore - 560 047.
2. Smt. Vishalakshi,
W/o Srinivasa Murthy M.,
Aged about 27 years,
Residing at C.M.H. Hospital,
C.M.H. road, Indiranagar,
Bangalore - 560 038.
Previous address:
#12, 'D' Block,
Police Quarters,
Singayyanapalya,
Bangalore - 560 048.
(N.R. Naik & Associates,
Advocates)
V/s.
Respondents in all 1. Sri Sharanappa,
the cases S/o Mallappa,
3 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
No.260, Maheshwari Nagar,
Mahadevapura Post,
Bangalore - 560 048.
(RC Owner of Toyota Kwalis
Bearing Reg. No.KA-01-B-0931)
(Exparte)
2. The New India Assurance Co.
Ltd., No.67/1, Reddy Complex,
White Field main road,
Mahadevapura Post,
Bangalore - 560 048.
(Policy
No.67050531110200005813
Valid from 20-11-2011 to
19-11-2012)
(Sri D.M. Joshi, Advocate)
COMMON JUDGMENT
The petitioners in MVC 513/2013 being the parents of
the deceased Ashoka D.P., the petitioners in MVC 514/2013
being the parents of the deceased M. Mahadevaswamy and
petitioners in MVC 1049/2013 being the parents of the minor
child Lakshmi Charan have filed all claim petitions under
Section 166 of Motor Vehicles Act, 1989, claiming
compensation on account of their death in a road traffic
accident which alleged to have been occurred on 11-11-2012.
4 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
2. All these petitions arising out of the same accident.
Hence, they are clubbed and common evidence was recorded
and disposed off by this common judgment.
3. The brief facts of the petition averments are as under:
On the above said date at about 12.40 a.m., all the
deceased were proceeding in a Toyota Qualis bearing No.KA-
01-B-0931, driven by its driver by name Sharanappa in a
rash and negligent manner, endangering human life, without
observing any traffic rules and regulations, when the said
Toyota Qualis reached near Kalagihalli Gate, Nuggehalli
Hobli, Channarayapatna Taluk, Hassan, within the limits of
Nuggehalli Police Station, the driver of the said Qualis lost
control and the said vehicle turtled down. As a result of the
said accident, death of above said persons occurred.
4. Immediately after the accident, the deceased were
taken to Adichunchanagiri Institute of Medical Sciences
Hospital and Research Centre, Nagamangala Taluk, Mandya
District in a Innova car, wherein after examining them, the
doctors declared them as dead.
5 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
5. After conducting the postmortem, the dead body was
handed over and funeral ceremonies were conducted by
spending a sum of Rs.30,000/-.
6. The deceased in MVC 513/2013 and 514/2013 were
police constable at Karnataka State Police and drawing a
salary of Rs.13,300/- and 15,863/- per month respectively.
The deceased in MVC 513/2013 and 514/2013 were aged
about 25 years and 28 years respectively. The deceased in
MVC 1049/2013 was aged about 4 years and due to the
demise of all these persons, the entire family is suffering both
mentally and financially.
7. It is further case of the petitioners that, the accident
was purely due to rash and negligent driving of the
respondent No.1 against whom, the Nuggehalli Police have
registered a case in their Crime No.81/2012 and filed a
charge sheet against him for the offences punishable under
Section 279, 337, 338 and 304(a) of IPC. The first respondent
being the RC owner of the above said Toyota Qualis, second
respondent being the insurer are jointly and severally liable to
pay compensation. Hence, they prayed to allow their
petitions.
6 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
8. In response to the notice, the respondent No.2
appeared through its counsel and filed objections, whereas
respondent No.1 placed exparte.
9. The respondent No.2 contended that, all these
petitions are not maintainable, denied the alleged accident
said to have been occurred on 11-11-2012 at about 12.40
a.m., by the Toyota Qualis bearing No.KA-01-B-0931. The
respondent No.2 denied the age, income and occupation of all
the deceased and contended that, the deceased were
travelling in a Toyota Qualis as gratuitous passengers along
with other persons. Hence, it is not liable to indemnify the
owner. The respondent No.2 further contended that, the
owner of the offending vehicle does not have proper and valid
FC and permit to use the vehicle on the road and vehicle
cannot be used on the road, without having proper FC and
permit. It is also further contention of the respondent No.2
that, at the time of accident, the driver of the offending
vehicle did not possessed valid and effective driving licence.
The respondent No.2 further taken up the contention that,
immediately after the accident, the insured has not informed
about the accident and the jurisdictional police have not
7 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
supplied the necessary documents. Thereby, there is a
violation of Section 134(C) and 158(6) of M.V. Act. The
respondent No.2 contended that, the compensation claimed
by the petitioners is exorbitant.
10. The respondent No.2 has filed his additional written
statement, wherein he took contention that, during the
pendency of the petitions, the legal heirs of the deceased have
made claim towards accidental benefit where their employer
have insured their employee and in view of the accidental
death benefit claimed by the petitioners against their
company and a sum of Rs.10,00,000/- is paid under the said
policy. The petitioners have accepted the same and the said
sum is to be deducted in the amount of compensation which
is to be paid to the petitioners. It is contended by the
respondent No.2 that, if there is any violation of terms and
conditions of the policy, it is not liable to indemnify against
the owner of the vehicle. Hence, he is not liable to make any
payment of compensation to the petitioners. Thereby, the
respondent No.2 prayed to dismiss the petitions with costs.
11. On the basis of the above pleadings, my predecessor
in office have framed the following issues in all the petitions:
8 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
ISSUES IN MVC No.513/2013
1. Whether the petitioners prove that,
the deceased Ashoka D.P., died in a
road traffic accident due to
involvement of Toyota Qualis bearing
No.KA-01-B-0931 on 11-11-2012 at
about 12.40 mid night by its rash and
negligent driving as alleged in the
petition?
2. Whether the petitioners are entitled
for any compensation as claimed? If
so, to what extent and from whom?
3. What order or award?
ISSUES IN MVC No.514/2013
1. Whether the petitioners prove that,
the deceased M. Mahadevaswamy died
in a road traffic accident due to
involvement of Toyota Qualis bearing
No.KA-01-B-0931 on 11-11-2012 at
about 12.40 mid night by its rash and
negligent driving as alleged in the
petition?
2. Whether the petitioners are entitled
for any compensation as claimed? If
so, to what extent and from whom?
3. What order or award?
ISSUES IN MVC No.1049/2013
1. Whether the petitioners prove that,
the deceased Lakshmi Charan died
due to injuries sustained in the road
traffic accident that occurred on
9 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
10/11-11-2012, at about 00.40 hours,
at Katagihalli Gate, Neggehalli Hobli,
Channarayapatna Taluk, Hassan, due
to use and negligent act of Toyota
Qualis bearing registration No.KA-01-
B-0931 driven by its driver?
2. Whether the petitioners prove that
they are the legal representatives of
deceased?
3. Whether the petitioners are entitled
for any compensation? If so, to what
extent and from whom?
4. What order or award?
12. The petitioners were examined as PW1 to PW3 and
got marked documents at Ex.P1 to Ex.P21. Per contra, the
official of the respondent No.2 company examined as RW1
and got marked documents at Ex.R1 to Ex.R20.
13. I have heard the arguments and perused the
materials on record.
14. By considering the evidence on record and because
of my below discussed reasons, I answer the above issues in
the following:
ISSUES IN MVC No.513/2013
Issue No.1: IN THE AFFIRMATIVE.
Issue No.2: PARTLY IN THE AFFIRMATIVE
10 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
Issue No.3: AS PER FINAL ORDER.
ISSUES IN MVC No.514/2013
Issue No.1: IN THE AFFIRMATIVE.
Issue No.2: PARTLY IN THE AFFIRMATIVE
Issue No.3: AS PER FINAL ORDER.
ISSUES IN MVC No.1049/2013
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.
REASONS
ISSUE NO.1 IN ALL THE PETITIONS:
15. As per the case of the petitioners that, on 11-11-
2012 at about 12.40 a.m., the deceased Ashoka D.P., M.
Mahadevaswamy and Lakshmi Charan were proceeding in a
Toyota Qualis bearing No.KA-01-B-0931 which was driven by
its driver by name Sharanappa. It is further case of the
petitioners that, the said driver was driven the said vehicle in
a rash and negligent manner, without observing traffic rules
and regulations, when the said vehicle reached at Kalagihalli
11 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
Gate, Nuggehalli Hobli, Channarayapatna Taluk, Hassan
District, the driver has lost control over the said vehicle and
the said vehicle turtled down. Consequently, the above said
persons were died in the accident.
16. The PW1 to PW3 have deposed in consonance with
the petition averments. They have deposed regarding the
manner of accident, death of their sons, expenses incurred for
their funeral and also the registration of criminal case against
the driver of the offending vehicle by jurisdictional police.
They have deposed regarding the income of the deceased. The
PW1 has deposed that, they have lost affectionate child and
because of rash and negligent driving of the driver of the
Toyota Qualis, the accident took place.
17. Apart from the above said oral evidence, they have
got marked the complaint at Ex.P1, FIR at Ex.P2, spot
mahazar and sketch at Ex.P3, IMV report at Ex.P4, charge
sheet at Ex.P5, inquest panchanama at Ex.P6, postmortem
report at Ex.P7, salary slip of the deceased in MVC 513/2013
at Ex.P8, notarized copy of ID card at Ex.P9, ration card at
Ex.P10, notarized copy of election ID card of the deceased at
Ex.P11, marks card at Ex.P12, postmortem report of the
12 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
deceased in MVC 514/2013 at Ex.P13, inquest panchanama
at Ex.P14, salary slip at Ex.P15, ID card at Ex.P16, degree
certificate at Ex.P17, notarized copy of ration card at Ex.P18,
SSLC marks card at Ex.P19, PUC second year marks card at
Ex.P20 and ID card at Ex.P21.
18. On perusal of complaint one Mr. Choodalingaiah
T.M., son of Munichoodiah who was police constable at
Mahadevapura Police Station has lodged the complaint
stating that, the deceased along with Sudeep,
Ashwathnarayana, Srinivasa were proceeding in a Toyota
Qualis bearing No.KA-01-B-0931 on hire which was driven by
the driver by name Sharanappa. It is further stated in the
complaint that, when the said Toyota Qualis reached near
Kategehalli gate at about 12.40 a.m., in the night, the said
driver drove the vehicle in a rash and negligent manner and
lost the control over the vehicle because of which, the vehicle
turtled down on the right side of the road. It is further stated
that, in the said accident Ashoka, Mahadevaswamy and
Charan were died. On the basis of the said complaint, the
jurisdictional police have registered FIR at Ex.P2 against the
driver of the Toyota Qualis bearing No.KA-01-B-0931 in their
13 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
Crime No.81/2012 for the offences punishable under Section
279, 337, 338 and 304(a) of IPC. The police during the course
of investigation have conducted spot mahazar and sketch as
per Ex.P3, motor vehicle inspection at Ex.P4, inquest
panchanama at Ex.P6, recorded the statement of the
witnesses, collected the postmortem report at Ex.P7, Ex.P13
and Ex.P14 and submitted a charge sheet as per Ex.P5
against the driver of the Toyota Qualis bearing No.KA-01-B-
0931 for the offences punishable under Section 279, 337, 338
and 304(a) of IPC.
19. The PW's are cross examined by the learned counsel
for the respondent No.2, in their cross examination PW1 to
PW3 have deposed that, they came to know about the
accident through phone at about 12.45 a.m. It is also stated
by PW1 that, accident took place due to rash and negligent
driving of the driver of the Toyota Qualis, but failed to state
its registration number. He stated that, the said accident took
place at Kalagihalli gate. It is suggested that, as per the spot
sketch there is a distance between the place of tyre marks
and place of accident which is denied. It is admitted by the
PW1 that, the motor vehicle inspection was conducted on 25-
14 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
01-2013 which is about 2½ months from the date of accident.
It is suggested that, as per the IMV report front portion and
left portion of the Toyota Qualis was damaged which is
denied. The rest of the cross examination is with respect to
the income and avocation of the deceased.
20. The PW2 has stated that, he came to know about
the accident through phone from one Sooralingaiah and
immediately on the said information, he went to the
Adichunchanagiri Hospital. The deceased along with his
colleagues were proceeding on the official work in the Toyota
Qualis, but he failed to state to whom the said qualis belongs
to and who was driving the qualis at the time of accident. It is
suggested that, the said qualis was seized after 2½ months
from the date of accident, it is denied. It is also suggested
that, the deceased was not an official duty on the date of
accident which is denied. The rest of the cross examination is
with respect of income and avocation of the deceased.
Further, the PW2 has stated that, he has lodged the
complaint on 11-11-2012 and he had no knowledge about
how the accident took place. He stated that, four persons
were going in the car on duty and failed to state its
15 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
registration number. Rest of the cross examination is with
respect of the income, qualification of the deceased.
21. The PW3 in his cross examination has stated that,
one Mr. Choodalingaiah has lodged the complaint on the very
day of the accident and he came to know about the accident
through phone. He stated that, in the said qualis his son by
name Lakshmi Charan was also proceeding. He stated that,
his son was proceeding along with the other inmates of the
Toyota Qualis, who were working at Mahadevapura Police
Station. PW3 has admitted that, the Toyota Qualis was taken
by the deceased for their official duty. He admitted that, the
Toyota Qualis was private vehicle. It was suggested that, his
son did not died in the accident which is denied.
22. The learned counsel for the respondent No.2 during
his arguments has submitted that, Rs.10,00,000/- is paid to
the petitioners in MVC 513/2013 and 514/2013 under
general insurance scheme. The driver had no driving licence
and in this regard, the RW1 has led evidence. He also argued
that, the driver had no driving licence to drive the passenger
service vehicle.
16 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
23. Per contra, the learned counsel for the petitioners
argued that, there was no violation of any terms and
conditions of the policy. The deceased were police constables,
aged about 25 and 28 years, because of sudden demise of all
of them, the entire family put to untold hardship and
suffering mentally and financially.
24. The official of the respondent No.2 company
examined as RW1 who has deposed that, immediately after
the accident, he has issued notice to the respondent No.1
asking him to furnish the vehicle documents such as driving
licence, particulars of police papers and requested the RTO of
K.R. Puram to furnish 'B' extract, FC under RTI. He further
deposed that, he has obtained permit of the vehicle and as on
the date of accident, the driving licence of the driver of the
offending vehicle clearly shows that, he is not having an
endorsement in his licence to drive passenger service vehicles
and as per Rule 12 of Karnataka Motor Vehicles Rules, 1989,
the driver of the passenger service vehicle should possess
badge number to drive the passenger class of vehicle, the
driver does not posses the licence to drive passenger service
vehicle at the time of accident. Hence, it is not liable to
17 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
indemnify the same. RW1 has further deposed that, the
petitioners in MVC 513/2013 and 514/2013 have made a
claim towards accidental death benefit where their employer
has insured their employee and in view of the accidental
death benefit claimed by the above said petitioners, they have
paid Rs.10,00,000/-. Hence, the respondent company is not
liable to pay any compensation. RW1 has produced the
authorization letter at Ex.R1, policy with terms and
conditions at Ex.R2, certified copy of 133 notice at Ex.R3,
indemnity bond at Ex.R4, letters addressed to the respondent
No.1, 3 in numbers at Ex.R5, letter addressed to the RTO,
K.R. Puram at Ex.R6, postal receipt and acknowledgment at
Ex.R7, endorsement issued by RTO with B extract at Ex.R8,
letter addressed to Department of Transport dated 03-04-
2014 at Ex.R9, endorsement issued by the Secretary dated
29-04-2014 at Ex.R10, form No.42 at Ex.Ex.R11, letter
addressed to RTO, K.R. Puram dated 02-04-2014 at Ex.R12,
acknowledgment and postal cover at Ex.R13, endorsement
issued by RTO, K.R. Puram dated 14-05-2014 at Ex.R14,
driving licence extract with letter dated 30-01-2010 at
Ex.R15, letter dated 11-12-2015 at Ex.R16, 2 payment
18 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
vouchers at Ex.R17, claims voucher at Ex.R18, extract of
pass book at Ex.R19 and letter issued by DCP at Ex.R20. The
RW1 was cross examined by the learned counsel for the
petitioners wherein RW1 has stated that, they have produced
documents to show that, they have paid Rs.10,00,000/- to
the petitioners and there is a correspondence between them
and the petitioners for having paid Rs.10,00,000/-. It is
suggested that, the payment of above said sum was not
within the knowledge of the petitioners which is denied by the
RW1.
25. From cross examination of PW1 to PW3, it is quite
clear that, they are not eye witness to the accident nor they
are inmates of the Toyota Qualis bearing No.KA-01-B-0931
alleged to have been involved in the accident. The complaint
lodged by one Mr. Choodalingaiah reveals that, along with the
deceased his colleagues by name Sudeep, Ashwathnarayana,
Suresh, Srinivasa along with deceased Charan were
proceeding in Toyota Qualis bearing No.KA-01-B-0931 along
with its driver Sharanappa and due to the rash and negligent
driving of the said driver, the Toyota Qualis turtled down
because of which, the death of all the above said persons
19 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
occurred. The spot sketch and spot mahazar as per Ex.P3
reveals that, the said Toyota Qualis was turtled down and
fallen on the right side of the road. The spot mahazar reveals
that, the tar road on which the accident took place was
having slope. Further, there are marks of tyre in the said tar
road.
26. The spot mahazar also reveals that, there are marks
of the oil on the said road and Toyota Qualis was turtled
down by the side of the road. The damages have also been
noted in the Ex.P3. IMV report as per Ex.P4 reveals that, the
said Toyota Qualis was damaged in the accident. The police
after conducting the thorough investigation have filed the
charge sheet against the driver of the said Toyota Qualis as
per Ex.P5 for the offences punishable under Section 279, 337,
338 and 304(A) of IPC. The inquest report of deceased in MVC
513/2013 as per Ex.P6, postmortem report as per Ex.P7
reveals that, the death was occurred due to intracranial
haemorrhage sustained during road traffic accident. Further,
the inquest and postmortem report of deceased in MVC
514/2014 as per Ex.P13 and Ex.P14, reveals that, the death
was occurred due to intracranial haemorrhage sustained
20 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
during road traffic accident. Further, the postmortem report
and death certificate of the deceased in MVC 1049/2013
reveals that, the death of minor child Lakshmi Charan was
due to intracranial harmorrhage, as a result of blunt trauma
sustained during road traffic accident. The RW1 though
examined before this court, but his evidence is not in respect
of the non involvement of the above said Toyota Qualis in the
accident. All the above said police records, postmortem report
and inquest reports reveals that, due to the accidental
injuries all the deceased died and postmortem was
conducted. Ex.R3 which is notice issued to the owner of the
alleged offending vehicle under Section 133 of M.V. Act and
reply reveals that, the alleged vehicle involved in the accident.
The spot sketch, IMV report reveals that, the accident was
due to rash and negligent driving of the driver of the Toyota
Qualis bearing No.KA-01-B-0931. Though, the official of the
respondent No.2 was examined, but he has deposed only on
the basis of available records and he is not an eye witness to
the accident. The respondent No.2 company has not made
efforts to examine the driver of the offending vehicle, who is
proper person to explain the circumstances under which the
21 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
accident took place. Therefore, looking from any angel, it is
quite clear that, the accident was due to rash and negligent
driving of the driver of the Toyota Qualis bearing No.KA-01-B-
0931. Accordingly, I answer the issue No.1 in all the petitions
in the Affirmative.
ISSUE NO.2 IN MVC 513/2013 AND 514/2013 AND
ISSUE NO.2 & 3 IN MVC 1049/2013:-
27. These issues are relating to the quantum of
compensation to be awarded to the petitioners and liability to
pay the same.
28. The deceased in MVC 513/2013 and 514/2013 were
police constables at Mahadevapura Police Station and
drawing salary of Rs.13,300/- and 15,863/-. Both the
petitioners have produced the salary certificate of the
deceased as per Ex.P8 and Ex.P15, these two documents
reveals that, the deceased in MVC 513/2013 drawing a gross
salary of Rs.13,300/-. Whereas the deceased in MVC
514/2013 drawing a gross salary of Rs.15,863/-. These two
salary slips are for the month of October 2012. The
respondents have not disputed the income of the deceased.
22 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
29. The postmortem report marked at Ex.P7 of deceased
in MVC 513/2013 reveals that, he was aged about 27 years,
whereas the deceased in MVC 514/2013 was aged about 28
years. The petitioners have produced the ID card issued by
the Department of Police marked at Ex.P9 and Ex.P21. Voter
ID card marked at Ex.P11 of deceased in MVC 513/2013
reveals that, his year of birth was 1987. Whereas, the date of
birth of the deceased in MVC 514/2013 reveals that, he was
born on 01-06-1984. The respondents have not disputed as to
the age of the deceased. The deceased in MVC 1049/2013
was born on 25-04-2009 which could be seen from his birth
certificate which is marked at Ex.P7. Postmortem report
reveals that, at the time of accident, he was aged about 3½
years.
30. The learned counsel for the petitioners has relied
upon the ruling reported in 2013 ACJ 1403 (Rajesh and
others vs Rajbir Singh and others) wherein Hon'ble Apex
Court held that, the future prospects should be adopted even
when the person is self employed or were engaged on fixed
wages. In para-11 and 12 of said judgment, the Hon'ble Apex
court discussed the principles laid down in the Sarla Verma's
23 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
case reported in 2009 ACJ 1298(SC) and another ruling
reported in 2012 ACJ 1428(SC) in Santhosh Devi's case held
that even when the person is self-employed or at fixed wages,
the future prospectus is to be considered. The Apex court has
held that 50% of the actual income of the deceased have to be
taken for the future prospectus below 40 years and 30% for
the age group of 40-50 years and 15% for the age group of 50-
60 years is to be added as future prospectus.
31. Further, in another rulings of Apex court reported in
Civil Appeal No.4497/2015 between Munnalal Jain and
another vs Vipin Kumar Sharma and others) held that, the
age of the deceased should taken into account for applying
the proper multiplier.
32. In this case, the deceased in MVC 513/2013 was
aged about 27 years. The proper multiplier applicable to the
case is 17. Whereas, the age of the deceased in MVC
514/2013 is 28 years. The proper multiplier applicable to the
case is 17. The deceased were bachelors at the time of
accident. Hence, as per the above said rulings, 50% of actual
income is to be taken into account as future prospectus. As
per the petition, the parents of the deceased are shown as
24 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
dependents. Hence, 50% has to be deducted towards his
personal expenses. Hence, the following calculations in MVC
513/2013:
(i) Notional income arrived at ...Rs.13,300/-p.m.
(ii)50% of (i) above said income
to be added as future prospectus ...Rs.6,650 +13,300/-=
...Rs.19,950/-p.m.
Less 50% deducted as personal
expenses of the deceased. ...Rs.19,950-9,975/-=
...Rs.9,975 x 12 x 17=
Compensation after multiplier of 17
is applied ... Rs.20,34,900/-
The petitioners are entitled for the compensation of
Rs.20,34,900/-under the head loss of dependency.
33. The following calculations in MVC 514/2013:
(i) Notional income arrived at ...Rs.15,863/-p.m.
(ii)50% of (i) above said income
to be added as future prospectus ...Rs.7,931.5 +15,863/-=
...Rs.23,794.5/-p.m.
Less 50% deducted as personal
expenses of the deceased. ...Rs.23,794.5-11,897.25/-=
...Rs.11,897.25 x 12 x 17=
Compensation after multiplier of 17
is applied ... Rs.24,27,039/-
25 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
The petitioners are entitled for the compensation of
Rs.24,27,039/-under the head loss of dependency.
34. The Apex Court, in the case reported in 2013 ACJ
5800 (Sanobanu Nazirbhai Mirza Vs. Ahmedbad Municipal
Transport Service) and also in the recent judgment reported
in AIR 2014 SUPREME COURT 706 (Puttamma Vs. Narayana
Reddy) awarded Rs.1,00,000/- as compensation to the family
members (children and family members other than wife) for
loss of love and affection, deprivation of protection, social
security etc., and Rs.50,000/- as compensation to the widow
of the deceased for loss of love and affection, pains and
sufferings, loss of consortium, deprivation of protection, social
security etc., and Rs.10,000/- towards cost incurred on
account of funeral and ritual expenses. In this case, since
the deceased has left behind his old age parents, I deem it
proper to award Rs.1,00,000/- as compensation to the family
members (children and family members other than wife) for
loss of love and affection, deprivation of protection, social
security etc. Loss of expectancy of life Rs.1,00,000/-. Loss of
marriage prospectus of Rs.1,00,000/- and Rs.25,000/-
26 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
towards cost incurred on account of funeral and ritual
expenses.
35. The details of compensation I propose to award in
MVC 513/2013 are as under:
Sl.No. Head of Compensation Amount/Rs.
1. Loss of dependency 20,34,900-00
2. Compensation to the family 1,00,000-00
members (children and
family members other than
wife) for loss of love and
affection, deprivation of
protection, social security
etc.
3. Loss expectancy of life 1,00,000-00
4. Loss of marriage prospectus 1,00,000-00
5. Cost incurred on account of 25,000-00
funeral and ritual expenses
Total 23,59,900-00
In all the Petitioners are entitled for compensation
of Rs.23,59,900/-.
36. The details of compensation I propose to award in
MVC 514/2013 are as under:
Sl.No. Head of Compensation Amount/Rs.
1. Loss of dependency 24,27,039-00
2. Compensation to the family 1,00,000-00
members (children and
family members other than
27 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
wife) for loss of love and
affection, deprivation of
protection, social security
etc.
3. Loss expectancy of life 1,00,000-00
4. Loss of marriage prospectus 1,00,000-00
5. Cost incurred on account of 25,000-00
funeral and ritual expenses
Total 27,52,039-00
In all the Petitioners are entitled for compensation
of Rs.27,52,039/-.
37. Ex.P7, Ex.P8(a) and Ex.P8(b) are reveals that, the
petitioner Nos.1 and 2 are the parent of the deceased in MVC
1049/2013. The Hon'ble Supreme Court in the judgment
reported in 2013 AIR SCW 5037 (Kishan Gopal and another
Vs. Lala and others) has awarded compensation of
Rs.5,00,000/-. In MVC 1049/2013 the deceased is a minor, I
am of the opinion that, the Petitioners are entitled for
compensation of Rs.5,00,000/- under Conventional Heads.
(i.e. loss of love and affection, discomfort, funeral expenses,
last rites etc.)
38. The details of compensation I propose to award are
as under:
28 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
Sl.No. Head of Compensation Amount/Rs
1. Loss of dependency 5,00,000/-
Total 5,00,000/-
In all the petitioners are entitled for compensation of
Rs.5,00,000/-.
Interest:
39. Relying upon a judgment of the Apex Court reported
in 2013 AIR SCW 5375 (Minu Rout and others Vs. Satya
Pradyumna Mohapatra and others), with regard to interest at
the rate of 9% p.a. on the compensation amount, in para 13
of the judgment, the Apex Court held that Insurance
Company is also liable to pay interest at the rate of 9% p.a.
from the date of application till the date of payment and also
by following the principles laid down in (2011) 4 SCC 481 :
(AIR 2012 SC 100) (Municipal Council of Delhi Vs.
Association of Victims of Uphaar Tragedy). In view of the
above judgments with regard to the rate of interest, and also
it is settled law that while awarding interest on the
compensation amount, the Court has to take into account the
rate of interest of the nationalized bank and the rate of
29 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
interest at 9% cannot said to be on the higher side.
Accordingly, the petitioners are entitled to interest at the rate
of 9% p.a.
Liability:
40. The official of the respondent No.2 company has
deposed before this court that, at the time of accident, the
driver of the offending vehicle not having an endorsement to
drive passenger service vehicles and as per Rule 12 of
Karnataka Motor Vehicles Rules, 1989, the driver of the
passenger service vehicle should possess badge number to
drive the passenger class of vehicle and hence insurance
company is not liable to pay compensation. Further, RW1 has
deposed that, the petitioners in MVC 513/2013 and
514/2013 have received accidental death benefit of
Rs.10,00,000/-. Hence, the said amount is to be deducted.
The RW1 has produced the driving licence extract of the
driver of the offending vehicle which is marked at Ex.R15
reveals that, the driver of the said vehicle had licence to drive
the motor cycle with gear, LMV-NT-Car, TRV Rigid Chasi. The
RW1 was not cross examined by the learned counsel for the
petitioners on this aspect. Now, the question before this court
30 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
is whether the respondent No.2 company disown its liability
on the ground that, the driver of the offending vehicle had no
badge. The permit which is marked at Ex.R11 reveals that,
the permit was valid from 08-11-2012 to 07-11-2017. The
accident in this case took place on 11-11-2012. As on the
date of accident, the permit was valid and the said permit was
throughout Karnataka. 'B' register extract which is marked at
Ex.R8 reveals that, the vehicle involved in the accident is
maxicab having unladen weight 1470. The policy marked at
Ex.R2 reveals that, the policy is commercial vehicle policy and
the nature of vehicle is a passenger carrying vehicle and its
seating capacity is 9 excluding the driver. It is to be noted
that, the respondent in his objections at para No.14 has
taken up the contention that, the deceased at the time of
accident were proceeding as a gratuitous passengers. There
was no permit and fitness certificate and at the time of
accident, the driver of the offending vehicle has not possessed
valid and effective driving licence. He has not specifically
taken up the contention that, at the time of accident, the
driver of the offending vehicle had no badge to drive the
alleged vehicle involved in the accident. But in the evidence of
31 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
the RW1, it is deposed that as per Rule 12 of Karnataka
Motor Vehicles Rules, 1989, the driver should possess badge
to drive passenger service vehicle and accordingly RW1 has
produced the driving licence extract as per Ex.R15. It is to be
noted that, the investigating officer has not filed charge sheet
for violation of Rule 12 of Karnataka Motor Vehicles Rules,
1989 against the driver of the offending vehicle. Though, the
RW1 was examined and driving licence extract was produced
to establish that, at the time of accident, the driver of the
offending vehicle had no badge, but RW1 is not competent
person to speak regarding whether the driver of the offending
vehicle had badge at the time of accident. The respondent
company has not examined the competent person to speak
regarding whether at the time of alleged accident, the driver of
the offending vehicle had badge. It is also pertinent to note
that, the respondent insurance company has not taken up
specific defence that, at the time of alleged accident, the
driver of the offending vehicle had no badge, simply it has
taken a contention that, the driver had no driving licence at
the time of accident. The whatever evidence adduced by RW1
with respect to not having badge is without any pleadings.
32 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
Any amount of evidence without their being any pleading is
no evidence in the eye of law. Therefore, even as per the
evidence of RW1 there was no badge, but the respondent
insurance company has not taken up specific contention in
their written statement that, at the time of alleged accident,
the driver of the offending vehicle had no badge. It is also to
be noted that, under Rule 12 of Karnataka Motor Vehicles
Rules, 1989, the driver of a stage or contract carriage should
have badge, but in the said rules there is a competent
authority which is authorized to impose fine for not having
badge. Therefore, it is for the competent authority to take
action against the driver of the offending vehicle for not
having the badge at the time of accident. It is also to be noted
that, as already I have discussed, the investigating officer has
not filed charge sheet for violation of Rule 12 of Karnataka
Motor Vehicles Rules, 1989. The policy as per Ex.R2 and
permit as per Ex.R11 reveals that, they were valid as on the
date of accident. Viewed from many angle, the respondent
insurance company cannot disown its liability on the ground
that, at the time of accident, the driver of the offending
vehicle had no badge.
33 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
41. The other point which is raised by the learned
counsel for the respondent No.2 is that, as per Ex.R16 to
Ex.R20 a sum of Rs.10,00,000/- was paid to the legal heirs of
the deceased in MVC 513/2013 and 514/2013. Hence, the
said amount is to be deducted from the compensation
amount. I have carefully perused Ex.R16 to Ex.R20. From
perusal of Ex.P16, it is quite clear that, the deceased in
513/2013 and 514/2013 were insured by their employer
under personal accident claim in policy bearing
No.67160042120100000087 and 67160042120190000006. It
is to be noted that, the said compensation amount is received
by the petitioners in MVC 513/2013 and 514/2013, as the
employer of the deceased insured them and the said sum has
been received under personal accident claim. In this regard, it
is useful to refer decision reported in 2013 ACJ 1441 between
Vimal Kanwar and others Vs. Kishore Dan and others.
Wherein Apex Court at para No.32 held as under:
So far as the general principle of
estimating damages under the common law is
concerned, it is settled that the pecuniary loss
can be ascertained only by balancing on one
hand, the loss to the claimant of the future
34 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
pecuniary benefits that would have accrued to
him but for the death with the "pecuniary
advantage" which from whatever source comes
to him by reason of the death. In other words,
it is the balancing of loss and gain of the
claimant occasioned by the death. But this has
to change its colour to the extent a statute
intends to do. Thus, this has to be interpreted
in the light of the provisions of the Motor
Vehicles Act, 1939. It is very clear, to which
there could be no doubt that this Act delivers
compensation to the claimant only on account
of accidental injury or death, not on account of
any other death. Thus, the pecuniary
advantage accruing under this Act has to be
deciphered, correlating with the accidental
death. The compensation payable under the
Motor Vehicles Act is on account of the
pecuniary loss to the claimant by accidental
injury or death and not other forms of death. If
there is natural death or death by suicide,
serious illness, including even death by
accident, through train, air flight not involving
a motor vehicle, it would not be covered under
the Motor Vehicles Act. Thus, the application
of the general principle under the common law
of loss and gain for the computation of
compensation under this Act must correlate to
35 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
this type of injury or death, viz., accidental. If
the words "pecuniary advantage" from
whatever source are to be interpreted to mean
any form of death under this Act, it would
dilute all possible benefits conferred on the
claimant and would be contrary to the spirit of
the law. If the "pecuniary advantage" resulting
from death means pecuniary advantage coming
under all forms of death then it will include all
the assets moveable, immovable, shares, bank
accounts, cash and every amount receivable
under any contract. In other words, all
heritable assets including what is willed by the
deceased etc., This would obliterate both, all
possible conferment of economic security to
the claimant by the deceased and the
intentions of the legislature. By such a
interpretation, the tort feasor in spite of his
wrongful act or negligence, which contributes
to the death, would have in many cases no
liability or meager liability. In our considered
opinion, the general principle of loss and gain
takes colour of this statute, viz., the gain has
to be interpreted which is as a result of the
accidental death and the loss on account of the
accidental death. Thus, under the present Act,
whatever pecuniary advantage is received by
the claimant, from whatever source, would
36 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
only mean which comes to the claimant on
account of the accidental death and not other
forms of death.
42. The Hon'ble Apex Court relying upon the ruling in
Helen C., Rebello vs. Maharashtra State Road Transport
Corporation - AIR 1998 SC 3191 concluded that, the amount
received under the provident fund, pension and insurance are
not pecuniary advantage within the periphery of Motor
Vehicles Act and are not liable for deduction. Thus, the
amount, if any received by the claimants under the insurance
police are not liable for deduction. The said position of law is
reiterated by the unreported judgment and our Hon'ble High
court in MFA 7841/2008 and 6107/2008. Therefore, the
whatever amount received by the petitioners in MVC
513/2013 and 514/2013 is cannot be taken into account
while awarding compensation. This contention of the
respondent No.2 company false to the ground. Hence, viewed
from many angle, the amount whatever received by the
petitioners under personal accident claim cannot be deducted
from the compensation amount. The policy at Ex.R2 reveals
that, as on the date of accident, it was in force. The permit
37 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
was also valid as on the date of accident and driver of the
offending vehicle had valid and effective driving licence at the
time of accident. Therefore, both respondents are jointly and
severally liable to pay compensation to petitioners with
interest at 9% p.a. However, primary liability is fixed on the
respondent No.2 insurance company to pay the compensation
amount. Accordingly, I answer the issue No.2 in MVC
513/2013 and 514/2013 and issue No.2 and 3 in MVC
1049/2013 partly in the affirmative.
ISSUE No.3 IN MVC 513/2013 AND 514/2013 AND
ISSUE No.4 IN MVC 1049/2013:-
43. In view of my above findings, all the petitions are
deserves to be partly allowed. Hence, I proceed to pass the
following order:
ORDER
The petitions filed by the petitioners in MVC No.513/2013, 514/2013 and 1049/2013 U/s.166 of MV Act are partly allowed with costs.
The petitioners in MVC No.513/2013 is awarded with the compensation of Rs.23,59,900/- (Rupees twenty three 38 (SCCH-16) MVC 513/2013, 514/2013 & 1049/2013 lakhs fifty nine thousand and nine hundred only) with interest at 9% p.a. from the date of petition till its realization.
The petitioners in MVC No.514/2013 is awarded with the compensation of Rs.27,52,039/- (Rupees twenty seven lakhs fifty two thousand and thirty nine only) with interest at 9% p.a. from the date of petition till its realization.
The petitioners in MVC No.1049/2013 is awarded with the compensation of Rs.5,00,000/- (Rupees five lakhs only) with interest at 9% p.a. from the date of petition till its realization.
The respondents Nos.1 and 2 are jointly and severally liable to pay the award amount. However, the primary liability to pay the compensation amount is fixed on the respondent No.2 -Insurance Company and it is directed to pay the compensation amount within two months from the date of this order.
Compensation amount is apportioned in all the petitions as follows:-
Petitioner No.1-Father - 50% Petitioner No.2-Mother - 50%
39 (SCCH-16) MVC 513/2013, 514/2013 & 1049/2013 Out of the compensation amount so apportioned in favour of the petitioner Nos.1 and 2 in all the petitions, 50% is ordered to be invested in the name of petitioner Nos.1 and 2 in any of the nationalized or scheduled bank of their choice for a period of 3 years. Remaining amount with entire interest is ordered to be released to them, through A/c payee cheques on proper identification and verification.
Advocate's fee is fixed at Rs.1,000/-in each petition. Office to keep the original judgment in the file of MVC No.513/2013 and copy of the same in the file of MVC No.514/2013 and 1049/2013.
Draw award accordingly in all the petitions. (Dictated to the stenographer, transcribed by him, corrected and then pronounced in the open court on this the 9th day of June 2016) (SATISH.J.BALI) MEMBER:MACT, BANGALORE ANNEXURE List of the witnesses examined on behalf of Petitioners:
PW1 Sri D.T. Prasad
PW2 Sri Mahadevanayak
PW3 M. Srinivasa Murthy
40 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
List of the documents exhibited on behalf of Petitioners:
Ex.P1 True copy of Complaint Ex.P1 True copy of FIR with complaint Ex.P2 True copy of FIR Ex.P2 True copy of Mahazar with sketch Ex.P3 True copy of Spot mahazar and sketch Ex.P3 True copy of Inquest mahazar Ex.P4 True copy of IMV report Ex.P4 True copy of Postmortem report Ex.P5 True copy of Charge sheet Ex.P5 True copy of Charge sheet Ex.P6 True copy of Inquest mahazar Ex.P6 True copy of IMV report Ex.P7 True copy of Postmortem report Ex.P7 Birth certificate Ex.P8 Salary slip
Ex.P8(a) Notarised attested true copy of Aadhaar card Ex.P8(b) Notarised attested true copy of Aadhaar card Ex.P9 ID Card Ex.P10 Notarised attested true copy of Ration card Ex.P11 Notarised attested true copy of ID card Ex.P12 Notarized attested true copy of 3 B.A. Degree marks cards Ex.P13 True copy of Inquest mahazar Ex.P14 True copy of Postmortem report Ex.P15 Salary slip Ex.P16 Notarised attested true copy of ID card Ex.P17 Notarized attested true copy of 2 B.Ed 41 (SCCH-16) MVC 513/2013, 514/2013 & 1049/2013 Certificates Ex.P18 Ex.P19 Notarized attested true copy of SSLC marks card Ex.P20 Notarized attested true copy of PUC marks card Ex.P21 Notarised attested true copy of ID card List of the witnesses examined on behalf of Respondents:
RW1 Sri Sushil Tiwari List of the documents marked on behalf of Respondents:
Ex.R1 Authorization letter
Ex.R2 Policy with terms and conditions
Ex.R3 Certified copy of 133 notice
Ex.R4 Indemnity bond
Ex.R5 Letter addressed to the respondent No.1 (3 in
nos.)
Ex.R6 Letter addressed to the RTO
Ex.R7 Postal receipt and acknowledgment
Ex.R8 Endorsement issued by RTO with B extract
Ex.R9 Letter addressed to Department of Transport
dated 03-04-2014
Ex.R10 Endorsement issued by the Secretary dated 29-
04-2014
Ex.R11 Form No.42
Ex.R12 Letter addressed to RTO, K.R. Puram dated 02-
04-2014
Ex.R13 Acknowledgment and postal cover
Ex.R14 Endorsement issued by RTO, K.R. Puram dated
14-05-2014
42 (SCCH-16) MVC 513/2013, 514/2013
& 1049/2013
Ex.R15 Driving licence extract with letter dated 30-01- 2010 Ex.R16 Letter dated 11-12-2015 Ex.R17 2 payment vouchers Ex.R18 Claims voucher Ex.R19 Extract of pass book Ex.R20 Letter issued by DCP (SATISH.J.BALI), MEMBER, MACT BANGALORE.