Bangalore District Court
Anand Kumar Alias Anand vs H.C. Nagarajaiah on 4 April, 2024
KABC020172552019
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES, AT BENGALURU.
(SCCH25)
-: PRESENT:-
SMT. PRAKRITI KALYANPUR, B.A(L),LL.B., LL.M.
XXIII Additional Small Causes Judge, Bengaluru.
DATED THIS THE 4TH DAY OF APRIL 2024
MVC Nos.161/2019, 3939/2019, 1903/2019 &
6197/2019
PETITONER/S: 1. Sri. Vinayaka A.G.
In MVC:161/2019: S/o Achuth P.
Aged about 48 years,
2. Smt. Bhavani
W/o Sri. Vinayaka A.G.
Aged about 47 years,
Both are R/at:
No.408, Ashok Hights 'C' Block,
Srikanteshwara Nagar,
Nandini Layout,
Bangalore - 560 096.
(By Sri. C.H.Srinivas, Chethan
R., & Govardhan S., S.V.S.Law
Chamber Advocate &
Consultant)
SCCH 25 2 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
In MVC:3939/2019: 1. Smt. Vasantha
W/o Late Dhanaraj D.
Aged about 42 years,
2. Miss. Sushmitha S.
D/o Late Suresh,
Aged about 14 years,
3. Smt. Pavithra V. Hegde
W/o Venkatesh M. Hegde,
D/o Late Dhanraj D.
Aged about 32 years,
Since 2nd Petitioner is minor
Rep. By her mother and
natural guardian
Smt. Vasantha the 1st
petitioner.
All are R/at
No.38/1, 22nd cross,
14th Main,
Padmanabhanagara,
BSK 2nd Stage,
Bangalore - 560 070.
Permanent Address
Kaggere Village,
K.R.Nagara Tq.
Mysore Dist. 571 602.
(By Sri. R.V.Hegde, Advocate.)
In MVC:1903/2019: Sri. Kallappa B. Pujar
S/o Basappa,
Aged about 29 years,
SCCH 25 3 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
R/at 5th Cross,
Mariyappa Layout,
No.511, Avalahalli Post,
Permanently R/at
Neeralakatt,
Garag, Dharwad.
(By Sri. D. Venugopal,
Advocate.)
In MVC:6197/2019: Sri. Anand Kumar @ Anand
S/o Bhirappa Kuri,
Aged about 23 years,
R/at Rampur Bhupur,
Kallilingsugur,
Raichur - 584 122.
(By Sri. K.H.Manjegowda,
Advocate.)
V/S
RESPONDENT/S 1. Sri. H.C.Nagarajaiah
in MVC 161/2019 Proprietor of
Sebird Tourist
R/at No.24, Ananth Arcade,
A.V.Road, Kalasipalyam,
Bangalore - 02.
Office at No.224/E113,
Near Ganesh Temple,
Opp Brigade Plaza, SC Road,
nand Rao Circle,
Bangalore - 560 009.
(Owner of the Bus (Ashoka
Leyland) bearing Reg.No.KA
SCCH 25 4 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
01AH8257)
(By Sri. S. Raju, Sri.Bhat
Ananta Krishna, Advocates.)
2. The United India Ins. Co.
Ltd.,
Regional Office
at 6th Floor,Krish Bhavan,
Nrupathunga Road,
Bangalore - 560 001.
(Insurer of Bus (Ashoka
Leyland) bearing Reg.No.KA
01AH8257)
(Policy No.0724003117P118255671
Date 16.03.2018 to 15.03.2019)
(By Sri. D.N.Manjunatha
Gupta, Advocate.)
3. The Managing Dicrector
North West Karnataka State
Road Transport Central Office,
Gokul Road,
Hubli Belagavi Division,
Belagavi - 590 016.
Also at:
K.H.Road, Bangalore,
(Owner of the Bus Eicher
Motors bearing Reg.No.KA22
F2182)
(By Sri. M.S.Basavaraju,
Advocate.)
SCCH 25 5 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
RESPONDENT/S 1. Sri. Nagarajaiah H.C.
in MVC 3939/2019 Prop. SeaBird Tourist,
No.224/E113, Nar Ganesh
Temple, Opp. Brigade Plaza,
SC Road, Ananda Rao Circle,
Bangalore - 560 009.
(Owner of the Bus No.KA01
AH8287)
(By Sri. S.Raju, Advocate/s)
2.The United India Ins. Co.
Ltd.,
Motor T.P.Hub, 5th & 6th Floor,
Krishi Bhavana,
Near Hudson Circle,
Nrupathunga Road,
Bangalore - 560 001.
By its Divisional Manager.
(By Sri. D.N.Manjunatha
Gupta, Advocate/s)
3. The Managing Director
N.W.K.S.R.T.C. (KSRTC Depot),
Shanthinagar, Wilson Garden,
K.H.Road,
Bangalore - 560 027.
(Registered owner of the Bus
bearing Reg.No.KA22F2182)
(By Sri. M.S.Basavaraju,
Advocate/s)
SCCH 25 6 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
RESPONDENT/S 1. Nagarajaiah M.C.
in MVC 1903/2019 Major,
No.24, Ananth Arcade,
A.V.Road,
Kalasipalyam, Bangalore.
(Owner of the Bus No.KA01
AH8257)
(By Sri. S.Raju, Advocate/s)
2. The Manager,
United India Insurance Co.
Ltd.,
No.21, St. Patricks Church
Building,
Museem Road,
Bangalore.
Policy No.0724003117P118255671
Valid from 16.03.2018 to 15.03.2019
(By Sri.D.N.Manjunatha
Gupta, Advocate/s)
3. The Managing Director
KSRTC Depot, Wilson Garden,
Bangalore.
(Internal Policy) KA22F2182
(By M.S.Basavaraju,
Advocate/s)
RESPONDENT/S 1. Sri. H.C.Nagarajaiah
in MVC 6197/2019 Prop of Seabird Bus,
SCCH 25 7 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
Major, O/at Tourist
No.224/E113,
Near Ganesh Temple Opp
Brigade Plaza,
SC Road, Anand Rao Circle,
Bangalore - 560 009.
(RC owner of the SeaBird Bus
bearing No.KA01AH8257)
(By Sri. S.Raju, Advocate/s)
2. The Regional Manager
United India Gen. Ins. Co. Ltd.,
Regional Office, Motor TP,
Hub,
Krishi Bhavana, 5th and 6th
Floor, Hudson Circle,
Bangalore - 560 001.
(Policy No.0724003117P118255671
Period from 16.03.2018 to 15.03.2019)
(By Sri. D.N.Manjunatha
Gupta, Advocate/s)
3. The Managing Director
NWKSRTC Shanthi Nagara,
Double Road,
Bangalore.
(Bus bearing No.KA22F
2182)
(By Sri. M.S.Basavaraju,
Advocate/s)
.......
SCCH 25 8 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
COMMON JUDGMENT
The Petitioners have filed these petitions under
Sec.166 of Indian Motor Vehicles Act seeking compensation
for death of one Nikitha V Shet and death of spare driver of
the SeaBird Travels one Dhanaraj D. and for the injuries
suffered by the petitioners in MVC 1903/2019 & 6197/2019
in an RTA on 27.08.2018. All the petitions arose out of a
common accident, therefore all the petitions are clubbed
together as per order dated 31.12.2020, common evidence is
recorded and common judgment is passed.
2. The case of the Petitioners in all the cases is
that:
The deceased Miss Nikhitha V. Shet was a passenger
in SeaBird Bus bearing No.KA01AH8257 and Dhanaraj
D. was the spare Driver in the same bus, the Petitioners in
MVC 6197/2019, 1903/2019 were traveling as passengers
in NWKSRTC Bus bearing No.KA22F2182. When the said
SCCH 25 9 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
Buses reached near Kallambella Police Station, Sira
Tumkur NH48 Road, Sira Taluk, Tumkur, the driver of the
SeaBird bus drove the bus in a rash and negligent manner,
endangering human life and dashed to the rear side of the
NWKSRTC Bus belonging to the respondent No.3. Due to
the said impact Nikitha V. Shet and spare Driver Dhanaraj
D. died on the spot. The passengers i.e., the petitioners in
MVC 6197/2019 and 1903/2019 suffered grievous injuries.
3. It is the further case of the Petitioners in MVC
No.161/2019 that, Nikitha V. Shet is their daughter and
she was traveling from Karvara to Bangalore along with her
elder sister Smt.Sakshi and her brotherinlaw Mr.Sidharth.
Immediately after the accident she was shifted to General
Hospital, Sira wherein she was declared as brought dead.
After conducting Post Mortem, the dead body was handed
over to the petitioners. The deceased was looking after the
petitioners, was aged about 27 years, working as
SCCH 25 10 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
Representative Operations at Concentrix Services India Pvt.
Ltd., Bangalore and thereafter she joined M/s.
Bhavanaditya Accounting and order services, Bangalore
wherein she was working as Customer Support
Representative and drawing monthly salary of Rs.31,000/
per month. She was about to be promoted. She was also
giving tuition to the high school students and earning more
than Rs.15,000/ per month from the same. The petitioners
have spent more than Rs.10,00,000/ towards medical,
conveyance, transportation of dead body, funeral and
obsequies.
4. It is the further case of the Petitioners in MVC
No.3939/2019 that, soon after the accident Dhanaraj D.
was taken to the Govt. Hospital, Sira wherein PM was
conducted. Prior to the date of accident the deceased was
hale and healthy, aged about 58 years, working as a Driver
and earning Rs.45,000/ per month. Deceased had Two
SCCH 25 11 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
wives, the first wife has passed away. Petitioner No.1 is the
second wife, petitioner No.2 is the daughter from the second
wife and the petitioner No.3 is the daughter from the first
wife.
5. It is the further case of the Petitioner in MVC
No.6197/2019 that immediately after the accident he was
taken to Govt. Hospital, Sira then shifted to District Govt.
Hospital, Tumkur, then Sapthagiri Hospital, Hesaraghatta
Main Road, Bangalore. Thereafter he was shifted to Sanjay
Gandhi Institute of Trauma and Orthopedics Govt. Hospital,
Bangalore. He took treatment as an inpatient for 20 days.
He has spent more than Rs.3,00,000/ towards medical
expenses. Prior to the date of accident he was hale and
healthy, 23 years old, doing Tailoring work and earning
Rs.20,000/ per month. Due to the accidental injuries he is
unable to do his work.
SCCH 25 12 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
6. It is the further case of the Petitioners in MVC
No.1903/2019 that, immediately he was shifted to Govt.
Hospital, Sira, later shifted to Hemavathi Orthopedics and
Trauma Center wherein he was treated as an inpatient and
spent Rs.10,00,000/ towards medical expenses. Prior to
the date of accident he was hale and healthy, working as an
Accounts Assistant and earning Rs.35,397/. Due to
accidental injuries he is not able to do his work as earlier.
7. The accident was caused due to the rash and
negligent act of the Driver of the Sea Bird Bus bearing
Reg.No.KA01AH8257. The Jurisdictional Rampura Police
have registered the case against the Driver of the offending
bus in Cr.No.194/2018 P/U/SECS 279, 337, 338, 304(A)
OF IPC. The 1st Respondent being the RC owner and 2 nd
respondent being the insurer of the Sea Bird Bus and 3 rd
respondent being the owner of the NWKSRTC BUS are
SCCH 25 13 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
jointly and severally liable to pay the compensation. Hence
these petitions.
8. In response to the summons, the Respondents
appeared through their respective counsels and filed
separate written statements.
9. The objections of the Respondent No.1 in all
the cases:
This respondent denied the entire petition averments
except admitting that he is the owner of the Sea Bird bus
bearing Reg.No.KA.01AH8257 and the said vehicle is
insured with the 2nd respondent insurance company. He has
contended that the KSRTC bus suddenly stopped due to
which the Sea Bird Bus went and hit the KSRTC Bus.
Therefore, there was a negligence on the part of the KSRTC
SCCH 25 14 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
Bus driver and they are equally responsible in paying the
compensation to the petitioners.
10. The objections of the Respondent No.2 in all
the cases:
The claim petition is not maintainable either on law or
on facts. There is delay in lodging the complaint and FIR
and the driver of the Sea Bird Bus did not have a valid and
effective DL as on the date of accident and the said Bus did
not have a proper insurance. They have contended that
there was a negligence on the part of the driver of the
KSRTC Bus also. They have contended that the petition is
not maintainable for non compliance of Sec.134(c) of MV
Act. They have denied all the petition averments and prayed
to dismiss the petition among other grounds.
11. The objections of the Respondent No.3 in all
the cases:
SCCH 25 15 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
They have denied the petition averments and
contended that the KSRTC Bus was on a trip from Belgaum
to Bangalore and the driver was driving the Bus slowly and
cautiously on the left side of the Road, when it reached near
Kallambella, the Sea Bird Bus bearing No.KA01AH8257
came from behind in a rash and negligent manner and hit
the KSRTC Bus on its back and caused the accident. There
was no negligence on the part of the KSRTC Bus Driver. The
entire negligence was on the part of the driver of the Sea
Bird Bus. It has denied all the petition averments and
prayed to dismiss the petition.
12. On the above rival contentions of the parties,
this court has framed the following issues:
MVC No.161/2019
1. Whether the petitioners prove that, they
are the legal heirs of the deceased Miss.
Nikitha V. Shet?
SCCH 25 16 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
2. Whether the petitioners prove that, the
accident occurred due to rash and negligent
driving by the driver of the NWKSRTC Bus
bearing Reg.No.KA22F2182, as a result
Miss Nikitha V. Shet sustained fatal injuries
and succumbed to the injuries?
3. Whether the petitioners are entitled for
compensation? If so, what is the quantum?
From whom?
4. What order or Award?
MVC No.3939/2019
1. Whether the petitioners prove that, they
are the legal heirs of the deceased
Sri.Dhanraj D.?
2. Whether the petitioners prove that, the
accident occurred due to rash and negligent
driving by the driver of the Sea Bird Bus
Reg.No.KA01AH8257, as a result Sri.
Dhanaraj D. sustained injuries and
succumbed to the injuries?
3. Whether the petitioners are entitled for
compensation? If so, what is the quantum?
From whom?
4. What order or Award?
SCCH 25 17 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
MVC No.1903/2019
1. Whether the petitioner proves that, the
accident occurred due to rash and negligent
driving by the driver of the Bus bearing
Reg.No.KA01AH8257 and in the said
accident petitioner sustained injuries?
2. Whether the petitioner is entitled for
compensation? If so, what is the quantum?
From whom?
3. What order or Award?
MVC No.6197/2019
1. Whether the petitioner proves that, the
accident occurred due to rash and negligent
driving by the driver of the Bus bearing
Reg.No.KA01AH8257 and in the said
accident petitioner sustained injuries?
2. Whether the petitioner is entitled for
compensation? If so, what is the quantum?
From whom?
3. What order or Award?
13. In MVC No.161/2019, the petitioner No.1/father
of the deceased got examined himself as Pw.1 and got
marked Exs.P.1 to 18. On the other side, the respondent
No.2 has got examined Mr.Hyderkhan - Driver of the Sea
SCCH 25 18 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
Bird as RW.2 and did not produce any documents. They
have also got examined Mr.Jayashankar - Administrative
Officer as RW.3 and got marked Exs.R.2 and R.3.
In MVC No.3939/2019, the petitioner No.3/daughter
of the deceased got examined herself as Pw.1 and got
marked Exs.P.1 to 16. On the other side, the respondents
did not examine any witness nor produced any documents
on their behalf in this case.
The Petitioner in MVC No.1903/2019, got examined
himself as PW.6 and got marked Exs.P.48 to 61. He has also
got examined Madhu G.V. MRD, Hemavathi Orthopedic and
Trauma Center, Tumkur as PW.7 and got marked Exs.P.62
to P.67. On the other side, the respondent No.3 got
examined Mr. Husain Sab Chapper Band - Driver of the
NWKRTC as RW.1 and got marked 1 document as per
Ex.R.1.
The Petitioner in MVC No.6197/2019 got examined
himself as PW.1 and got marked Exs.P.1 to P.13. He has
SCCH 25 19 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
also examined R.Agilasithan - Medical Record Officer at
Sanjay Gandhi Hospital as PW.4 and got marked Ex.P.45.
Dr. S.A.Somashekara examined as PW.5 and got marked
Exs.P.46 & P.47. On the other side, the respondents did
not examine any witness nor produced any documents on
their behalf.
14. Heard the arguments and perused the materials
on record.
The counsel for the Petitioner has relied upon the
following decisions:
(i) SC 11 (2020) 356 : National Ins. Co. ltd. ,Vs.
Birender and Ors.
(ii) MFA No.102868/2014 : Reliance Gen. Ins. Co. Ltd.,
Vs. Gangappa And Ors.
(iii) MFA No.118/2018: Smt. Lathamma alias latha and
Ors. Vs. Mohammed Saleem and Anr.
(iv) AIR 2013 SC 473 : National Ins. Co. Ltd., Vs.
Balakrishnan and Anr.
(v) 2018 SC 189 : Jagtar Singh alias jagdev Singh Vs.
Sanjeev Kumar and Ors.
SCCH 25 20 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
(vi) MFA No.188/2017 C/w 637/2018 :National Ins.
Co. Ltd., Vs. Vijay Praveen Cutinha and Anr.
(vii) MFA No.23416/2013 : M.Dada Khalander Vs.
Muneer Khan and Anr.
The counsel for the petitioners has furnished the
written arguments.
The counsel for the respondent No.1 has relied upon
the following decisions:
(i) 2007 ACJ 2782 (Karnataka) : United India Ins. Co.
Ltd., Vs. Nagaraja & Anr.
(ii) 2010 ACJ 184 (Kerala) : Alagadurai Vs. immanuel
and Ors.
(iii) MFA No.242 (2013(MV) (Karnataka) : National Ins.
Co. Ltd., Vs. Smt. Bhagya and Ors.
The counsel for the respondent No.2 has relied upon
the following decisions:
(i) Civil Appeal No.10145/2016 - Nishan Singh & Ors.
Vs. Oriental Ins. Co. Ltd., Throught Regional Manager
& Ors.
(ii) 2019 ACJ 2221 : Oriental Ins. Co. Ltd., Vs. Shanthi
Nanaiah and Ors.
SCCH 25 21 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
The counsel for the respondent No.3 has relied upon
the following decisions:
(i) (2005) 6 SCC 172 : National Ins. Co. Ltd., Vs.
Prembai Patel and Ors.
(ii) LAWS (SC) 2007 47 : Oriental Ins. Co. Ltd., Vs.
Meena Variyal.
(iii) (2007) 13 Supreme Court Cases 476 : Oriental Ins.
Co. Ltd., Vs. Premlata Shukla & Ors.
(iv) 2012 AIR SCW 2241 : Surinder Kumar Arora and
Anr. Vs. Dr.Manoj Bisla & Ors.
(v) AIR 2018 Supreme Court 2118 : Nishan Singh Ors.
Vs. Oriental Ins. Co. Ltd., through Regional Manager
and Ors.
15. On hearing both sides and perusal of evidence
on record this Tribunal answers the above issues in all the
cases as follows:
Issue No.1 Issue No.2 Issue No.3 Issue No.4
Case Nos.
MVC No.161/2019 In the In the In the As per final Order
affirmative Negative affirmative
MVC No.3939/2019 In the In the In the As per final order
affirmative affirmative affirmative
MVC No.1903/2019 In the In the As per final
affirmative affirmative order
MVC No.6197/2019 In the In the As per final
affirmative affirmative order
SCCH 25 22 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
REASONS
16. Issue No.2 in MVC No.161/2019 and MVC
No.3939/2019 and Issue No.1 in MVC
No.1903/2019 & 6197/2019:
The counsel for the respondent No.3 has argued that
the burden is on the petitioners to prove negligence on the
part of offending vehicle and relied upon the following
decisions:
(i) (2005) 6 SCC 172 : National Ins. Co. Ltd., Vs.
Prembai Patel and Ors.
It was held by the Supreme Court of India that the
legal representatives of the deceased have to
establish by preponderance of evidence that there
was no negligence on the part of the injured or
deceased and they were not responsible for the
accident.
(ii) LAWS (SC) 2007 47 : Oriental Ins. Co. Ltd., Vs.
Meena Variyal.
It was held by the Supreme Court of India that
once the petition filed under Sec.166 of MV Act, the
claimants have the burden of proving the
negligence of driver.
(iii) (2007) 13 Supreme Court Cases 476 : Oriental Ins.
Co. Ltd., Vs. Premlata Shukla & Ors.
It was held by the Supreme Court of India that
proof of rashness and negligence on the part of the
driver of the vehicle is sine qua non for maintaining
an application u/Sec.166 of MV Act.
SCCH 25 23 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
(iv) 2012 AIR SCW 2241 : Surinder Kumar Arora and
Anr. Vs. Dr.Manoj Bisla & Ors.
Wherein the Hon'ble Supreme Court of India has
held that 'the onus to prove act of rash and
negligent driving by driver of vehicle was on
claimants'.
17. In order to prove that the accident occurred due
to the actionable negligence on the part of the Driver of the
Sea Bird Bus bearing Reg.No.KA01AH8257, the
Petitioner No.1 in MVC No.161/2019 got examined himself
as PW.1 and filed affidavit in lieu of his chief examination
and got marked Exs.P.1 to 5, 13 to 18. During his cross
examination, he has admitted that the charge sheet is filed
against the Sea Bird bus Driver. The respondent No.2 got
examined the driver of the Sea Bird Bus as RW.2, who has
stated that the KSRTC bus suddenly applied brake and
caused the accident. During his cross examination,
nothing worthwhile is elicited. Respondent No.2 also got
SCCH 25 24 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
examined its Official as RW.3 and got marked Ex.R.2 & 3.
During his cross examination by the counsel for
Respondent No.1, he has admitted that the policy is
attached to IMT 28. He has also admitted that they had
collected Rs.50 for paid driver under IMT 28 as additional
premium.
18. The Petitioner No.3 in MVC No.3939/2019 got
examined as PW.1 and filed affidavit in lieu of her chief
examination and got marked Exs.P.1 to 8. During her
crossexamination, nothing worthwhile is elicited. The
Petitioner in MVC No.1903/2019 got examined as PW.6
and filed affidavit in lieu of his chief examination and got
marked Exs.P.48 to 54. During his crossexamination he
has stated that the negligence could be of both the
vehicles. He has admitted the involvement of both the
vehicles. The respondent No.3 got examined the driver of
the NWKRTC as RW.1 and got marked 1 document as
SCCH 25 25 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
Ex.R.1 i.e., Five Photos with CD. In his affidavit he has
reiterated the objections of the respondent No.3. During
his crossexamination nothing worthwhile is elicited.
19. The petitioner in MVC 6197/2019 got examined
himself as PW.1 and got marked Exs.P.1 to 7 and filed
affidavit in lieu of his chief examination and reiterated the
contents of the petition averments. During his cross
examination nothing worthwhile about the accident is
elicited.
20. All the petitioners have produced the police
documents i.e., FIR, Mahazar, spot sketch, IMV report and
charge sheet as per Exs.P.1 to 5 & 7 in MVC 6197/2019,
Exs.P.48 to 52 & 54 in MVC 1903/2019, Exs.P.1 to 4 to 6
& Exs.P.15 to 18 in MVC 161/2019 and Exs.P.1 to P.5 & 8
in MVC 3939/2019. On perusal of documents it is clear
that the accident occurred on 28.08.2018 at about 4.45am
SCCH 25 26 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
and the FIR was registered on the same day at about 7.15
am. The complaint was given by Hussain Sab i.e., the
driver of the NWKRTC. Spot mahazar was conducted on
the same day, spot sketch prepared. As per the IMV report,
both the vehicles were damaged. But on perusal of the
damages it is clear that the Sea Bird bus has hit the left
back portion of the NWKRTC bus and the Sea Bird bus has
suffered damages to the front right portion. After
investigation charge sheet is field against the driver of the
Sea Bird Bus by the police. Other than the police
documents, none of the other parties have produced any
other documents contrary to these. However, it is to be
noted that the driver of the NWKRTC when being examined
as RW.1 in MVC 1903/2019 got marked 5 photographs
and a CD. The Photographs marked at Ex.R.1 in MVC
1903/2019 clearly show that the North Western KSRTC
was going towards the extreme left side of the Road
SCCH 25 27 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
whereas the Sea Bird Bus has hit the NWKRTC from
behind.
21. As per wound certificate at Ex.P.6 in MVC
6194/2019 and the wound certificate at Ex.P.53 in MVC
1903/2019 the petitioner suffered injuries in RTA. As per
the inquest and PM report marked at Exs.P.6 & 7 in MVC
3939/2019 and PM report and Inquest report marked at
Exs.P.3 & 14 in MVC 161/2019, the deceased died due to
hemorrhage or shock in an RTA. Therefore, on the basis of
all these documents and especially on the basis of photos
which are produced at Exs.R.1 & 2 in MVC 1903/2019 it is
clear that the accident was caused due to the sole
negligence and rash driving by the driver of the Sea Bird
Bus bearing No.KA01AH8257. Nothing is brought on
record by any of the parties to show there was any kind of
negligence on the part of the driver of the NWKRTC.
Accordingly, issue No.2 in MVC No.161/2019 is
SCCH 25 28 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
answered in the Negative, Issue No.2 in MVC
3939/2019 and Issue No.1 in MVC Nos.1903/2019 &
6197/2019 are held in the affirmative.
22. Issue No.1 in MVC No.161/2019:
It is the case of the Petitioners that, the Petitioner
No.1 is the father and Petitioner No.2 is the mother of the
deceased - Nikitha V. Shet. The Petitioners to prove their
relationship have examined the 1st Petitioner as PW.1.
PW.1 has specifically spoken about this relationship in his
chiefexamination. Apart from that, to prove the
relationship, the Petitioners have produced notarized copy
of their Aadhar cards and also produced the Aadhar Card,
PAN Card and death certificate of the deceased Nikitha V.
Shet as per Exs.P.8 to 12. In the Aadhar Card and PAN
Card Card of the deceased, her father's name is mentioned
Vinayaka A.G. In the Aadhar Card of the Petitioner No.2,
her husband's name is mentioned as Vinayaka A.G. In the
SCCH 25 29 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
death certificate of the deceased Nikitha V. Shet, her
father's and mother's name are mentioned as Vinayaka
and Bhavani who are the petitioner Nos.1 & 2. At Ex.P.14 -
Inquest mahazar it can be seen that the deceased father's
and mother's name is shows as Vinayaka and Bhavani who
are the petitioner Nos.1 & 2. These documents are public
documents and they have got initial presumptive value
under law. These documents have not been seriously
disputed by the Respondents. The Respondents have not
produced any contrary documents to dispute and rebut the
contents of documents produced by the Petitioners. As
such, there are no reasons to discard the oral and
documentary evidence produced by the Petitioners. Under
such circumstances, relying upon the oral evidence of
PW.1 and the documents, this court is of the opinion that
the Petitioner Nos.1 & 2 are the father and mother of the
deceased Nikitha V. Shet. Accordingly, Issue No.1 in this
case is held in the affirmative.
SCCH 25 30 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
[ 23. Issue No.3 in MVC No.161/2019:
PW.1 has specifically spoken before this court that
due to the untimely death of the deceased, they have lost
their loving affectionate daughter. He has further deposed
that they have spent huge amount towards transportation
of dead body, funeral expenses. Therefore, the Petitioners
are entitled for compensation as per the following
discussion.
Monthly income
24. According to the Petitioners, the deceased was
working as representative operations at Concentrix
Services India Pvt. Ltd., thereafter she joined M/s
Bhavanaditya Accounting and order services and working
as Customer Support Representative and drawing monthly
salary of Rs.31,000/ per month. Apart from this she was
also taking tuition to the high School students and earning
more than Rs.15,000/ per month. In this regard, the
SCCH 25 31 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
Petitioners have produced statement of Accounts and pay
slips at Exs.P.6 and 7. The pay slips are for the months of
August, September and October 2017. When an
application was filed to examine the employer, the
respondent No.2 counsel has submitted that since there
are payslips and corresponding entries in the Bank
Statement, it is not disputed by them. On perusal of the
Bank Statement and the payslips it is seen that the salary
amount has varied from month to month. However, on an
average the deceased has received Rs.25,000/ per month.
Hence the same is considered as the monthly income of the
deceased.
Age of the deceased
25. In so far as age of the deceased is concerned, the
Petitioners have produced Aadhar Card of the deceased at
Ex.P.8. As per Ex.P.8 the deceased was aged about 27
years. This is a public document and has got presumptive
value under law. This shows that as on the date of
SCCH 25 32 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
accident, the age of the deceased was 27 years. Therefore,
her age is considered as 27 years.
(i) LOSS OF DEPENDENCY AND FUTURE
PROSPECTS:
As per the principles of law laid down in the case of
Sarla Verma V/s Delhi Transport Corporation,
appropriate multiplier applicable to her age is 17. In the
instant case, the deceased has a Father and a Mother,
aged about 48 & 47 years respectively. PW.1 in his cross
examination admitted that he was doing Goldsmith work.
As such it can be considered that petitioner No.1 is not
depending on the income of the deceased. Therefore,
petitioner No.2 mother is considered as the dependent of
the deceased.
26. As per the decision of Hon'ble Supreme court in
National Insurance company Vs Pranay Sethi and
others(AIR 2017 S.C 5157) persons aged above 60 years
SCCH 25 33 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
are not entitled to any future prospects. As mentioned
above, since the deceased was under below 40 years age
slab, 40% future prospects is to be added to her monthly
income. So Rs.10,000/ (Rs.25,000/ X 40% =
Rs.10,000/) should be added to her monthly salary of
Rs.25,000/ then it comes to Rs.35,000/ per month. As
per the Sarala Verma case, if the deceased is a bachelor
then 1/2 of her income has to be deducted towards her
personal and living expenses, balance comes to
Rs.17,500/. Therefore, the total loss of dependency
would be Rs.35,70,000/ (Rs.17,500/ X 17 x 12) =
Rs.35,70,000/).
(ii) LOSS OF CONSORTIUM:
In Magma General Insurance company Limited Vs.
Nanuram (2018) 18 SCC 130, the Hon'ble Apex court has
observed
SCCH 25 34 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
"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".
27. This observation of the Hon'ble Supreme Court
is reaffirmed in United Indian Insurance Company Ltd.
Vs. Satinder Kaur @ Satvinder Kaur and others, (2021)
11 SCC 780.
28. The Petitioner No.1 is the father and the
petitioner No.2 is the mother of the deceased. The Father
and Mother have to live remaining part of their life in the
absence of their young daughter. The loss of a young
daughter full of hopes for the future can never be suitably
compensated to the parents. However, petitioner Nos.1 & 2
SCCH 25 35 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
are entitled to a sum of Rs.40,000/ each (Total
Rs.80,000/) under the head of loss of consortium.
(iii) TRANSPORTATION AND FUNERAL
EXPENSES AND LOSS OF ESTATE:
In so far as the funeral and transportation expenses
are concerned, the Petitioners have contended that they
have spent huge amount towards transportation of dead
body and funeral obsequies. But, there is no document
produced in this regard. In addition there are expenses
during the death of a person for which documents cannot
be maintained. Therefore, in the interest of justice the
Petitioners are awarded a sum of Rs.20,000/ under this
head. If the deceased was alive she would have certainly
saved some amount out of her living and personal
expenses and created an estate in favour of the Petitioners.
Therefore, the Petitioners are entitled for Rs.20,000/
under the head of loss of estate.
SCCH 25 36 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
Therefore, the Petitioners are entitled for a total sum of
Rs.36,90,000/.
29. Issue No.1 in MVC No.3939/2019:
It is the case of the Petitioners that, the Petitioner
No.1 is the wife and Petitioner Nos.2 & 3 are the daughters
of the deceased - Dhanraj D. The Petitioners to prove their
relationship have examined the 3rd Petitioner as PW.
1. PW.1 has specifically spoken about this relationship in
her chiefexamination. Apart from that, to prove the
relationship, the Petitioners have produced notarized copy
of their Aadhar card and DL of the deceased Dhanraj D.
They have also produced notarized copy of Aadhar Card
and SSLC Marks Card of the 3 rd petitioner as per Exs.P.10
to P.13. In the SSLC Marks card of the petitioner No.3 her
father's name is mentioned as Dhanraj. But in the Aadhar
Card of the petitioner No.3 her husband's name is
mentioned as Venkatesh M. Hegde. Apart from this, they
SCCH 25 37 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
have also produced the Aadhar Card of the petitioner No.1,
school certificate of petitioner No.2 as per Exs.P.14 & 15
and also produced the ration Card at Ex.P.16. But in the
Aadhar Card of the petitioner No.1 her deceased husband
Dhanraj's name is not mentioned. In the same manner in
the school certificate of petitioner No.2, her father's name
deceased Dhanraj is not mentioned. As per Inquest at
Ex.P.6 it is mentioned that Vasantha is his second wife
and first wife is no more. This fact is admitted by his own
daughter petitioner No.3. These documents are public
documents and they have got initial presumptive value
under law. These documents have not been seriously
disputed by the Respondents. The Respondents have not
produced any contrary documents to dispute and rebut the
contents of documents produced by the Petitioners. As
such, there are no reasons to discard the oral and
documentary evidence produced by the Petitioners. Under
such circumstances, relying upon the oral evidence of
SCCH 25 38 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
PW.1 and the documents, this court is of the opinion that
the Petitioner No.1 is the wife, Petitioner Nos. 2 & 3 are the
daughters of the deceased Dhanraj D. Accordingly, Issue
No.1 in this case is held in the affirmative.
30. Issue No.3 in MVC No.3939/2019:
PW.1 has specifically spoken before this court that
due to the untimely death of the deceased, they have lost
the bread earner of their family and her loving Father. She
has further deposed that they have incurred huge expenses
towards treatment, conveyance, transportation of dead
body and for performing the funeral ceremonies. The
Petitioners are entitled for compensation as per the
following discussion.
Monthly income
31. According to the Petitioners, the deceased was
aged about 58 years, working as a Driver at SeaBird
SCCH 25 39 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
Travels and earning Rs.23,000/ and daily bata and perks
about Rs.22,000/ in all he was earning a sum of
Rs.45,000/ per month. The Petitioner No.3 to prove the
income of the deceased has produced Bank statement of
the deceased Dhanraj at Ex.P.9. As per this document the
deceased has received on an average Rs.20,000/ salary
per month.
Age of the deceased
32. In so far as age of the deceased is concerned, the
Petitioners have produced notarized copy of DL, Aadhar
Card at Exs.P.10 & 11. As per Ex.P.10 as on the date of
accident he was 59 years old and as per Ex.P.11 as on the
date of accident he was 56 years old. Ex.P.10 was the first
document which was taken by the deceased and the same
is considered. This is a public document which has
presumptive value under law. This shows that as on the
SCCH 25 40 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
date of accident, the age of the deceased was 59 years and
the same is considered.
(i) LOSS OF DEPENDENCY AND FUTURE
PROSPECTS:
As per the principles of law laid down in the case of
Sarla Verma V/s Delhi Transport Corporation,
appropriate multiplier applicable to his age is 9. In the
instant case, the deceased has a wifepetitioner No.1 aged
about 42 years and a minor daughter aged about 14 years
and a married daughter aged about 32 years.
The counsel for the Petitioner has relied upon the
following decisions:
(i) SC 11 (2020) 356 : National Ins. Co. ltd. ,Vs.
Birender and Ors.
Wherein it is observed that even earning sons of
the deceased can apply for compensation and the
Tribunal shall decide the quantum of
compensation after deciding whether they were
fully Dependant on the deceased or not.
SCCH 25 41 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
(ii) MFA No.102868/2014 : Reliance Gen. Ins. Co. Ltd.,
Vs. Gangappa And Ors.
Wherein the Hon'ble High Court of Karnataka has
observed that even married daughters are eligible
for compensation on all heads.
(iii) MFA No.118/2018: Smt. Lathamma alias latha and
Ors. Vs. Mohammed Saleem and Anr.
Wherein the Hon'ble High Court of Karnataka has
held that even earning sons of the deceased can
be financially dependent on him.
As such, petitioner Nos.1 & 2 are depending on the
income of the deceased Dhanraj D. However, nothing is
brought on record by the petitioners to show that the
petitioner No.3 was financially dependent on the income of
the deceased. Therefore, petitioner Nos.1 & 2 are
considered as the dependents of the deceased.
33. As per the decision of Hon'ble Supreme court in
National Insurance company Vs Pranay Sethi and
others(AIR 2017 S.C 5157) persons aged above 60 years
are not entitled to any future prospects. As mentioned
SCCH 25 42 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
above, since the deceased comes under 50 to 60 years age
slab, 10% future prospects is to be added to his monthly
income. As such, after adding 10% to his income then it
comes to Rs.22,000/ per month (Rs.20,000/ x 10% =
Rs.2,000/). As per the Sarala Verma case, if there are 2
to 3 dependents then 1/3rd of his income has to be
deducted towards his personal and living expenses,
balance comes to Rs.14,667/ (Rs.22,000/ Rs.7,333/ =
Rs.14,667/). Therefore, the total loss of dependency
would be Rs.15,84,036/ (Rs.14,667/ X 9 x 12) =
Rs.15,84,036/).
ii) LOSS OF CONSORTIUM:
In Magma General Insurance company Limited Vs.
Nanuram (2018) 18 SCC 130, the Hon'ble Apex court has
observed "Consortium" is a compendious term, which
encompasses spousal consortium, parental consortium and
filial consortium. The right to consortium would include the
SCCH 25 43 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
company, care, help, comfort, guidance, solace and affection
of the deceased, which is a loss to her family. With respect
to a spouse, it would include sexual relations with the
deceased spouse".
34. This observation of the Hon'ble Supreme Court
is reaffirmed in United Indian Insurance Company Ltd.
Vs. Satinder Kaur @ Satvinder Kaur and others, (2021)
11 SCC 780.
35. The Petitioner No.1 is the wife and as she has
lost her husband and companion at the age of 42 years
and she has to the live remaining part of her life without
him, she is entitled to a sum of Rs.40,000/ under the
head of loss of consortium. Similarly, the petitioner Nos.2
& 3 are the children, they have lost their loving, care
taking father. Therefore, they are also entitled to
SCCH 25 44 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
Rs.40,000/ each, in total Rs.1,20,000/ is awarded
under the head of loss of consortium.
iii) TRANSPORTATION AND FUNERAL
EXPENSES:
PW.1/Petitioner has stated that she has spent huge
amount towards funeral expenses and obsequies etc. In
this regard the petitioner has not produced any bills
pertaining to the above said expenses. However, there are
expenses during the death of a person for which
documents cannot be maintained. Therefore, in the
interest of justice, the Petitioner is awarded a sum of
Rs.20,000/ under this head.
iv) LOSS OF ESTATE:
As mentioned above, the deceased was earning a sum
of Rs.12,500/ per month. Out of this, he was spending
1/3rd of his income towards personal expenses. Such being
the case, out of this, certainly he would have saved some
SCCH 25 45 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
amount and created estate in favor of the Petitioners.
Therefore, the Petitioner is entitled to a sum of
Rs.20,000/ under the head of loss of estate.
As such, in total, the Petitioners are entitled to a sum
of Rs.17,44,036/. If it is rounded off it comes to
Rs.17,44,100/.
36. Issue No.2 in MVC 1903/2019:
The Petitioner has further averred that on account of
the accident he is suffering from grievous injuries. The
Petitioner to substantiate that there is loss of income due to
the accidental injuries and that he is suffering from
permanent disability has not examined either the treated
Doctor or any other Doctor who has got expertise in this
field. He also has not placed any disability certificate issued
by the competent person to prove that he suffered
permanent disability. But he has examined Mr.Madhu G.V.
MRD, Hemavathi Orthopedic and Trauma Center,
SCCH 25 46 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
Tumkur, as PW.7 and produced Exs.P.62 to 67
authorization letter with letter dated 10.05.2022, once case
sheet, discharge summary, inpatient detail bill, Eight Xrays
and Nine CT Scan films. During the cross examination of
PW.7, he has admitted the medical bills were paid by the
BMTC i.e., the employer of the petitioner. Therefore, in
absence of evidence this Tribunal holds that the injuries
sustained by the petitioner in the accident has not caused
him permanent disability resulting in loss of income and
accordingly the version of the petitioner in this regard is not
acceptable. Under these circumstances the petitioner is not
entitled for compensation under the head of loss of future
income due to disability. However, it is pertinent to note
that, the wound certificate produced as per Ex.P.5 discloses
that, he has sustained Fracture shaft of right femur,
Fracture shaft of left femur, Multiple facial bone fracture,
minimal T12 wedge compression fracture and head injury
which are grievous injuries. Therefore, the Petitioner is
SCCH 25 47 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
entitled for compensation of Rs.40,000/ under the head of
Pain and Suffering. The Petitioner has stated that he has
spent more than Rs.10,00,000/ medical, conveyance and
nourishment expenses. In this regard he has produced
medical advance issued letter dated 25.08.2021 by Asst.
Accountant, BMTC Office, Bangalore at Ex.P.56 and the
salary slips show that medical advance is deducted from his
salary. He has not given any certificate from his department
to show that he has not claimed medical reimbursement.
Moreover the discharge summary and inpatient bills
produced at Exs.P.64 & 65 are not original but true copies
only. PW.7 has admitted that BMTC has paid the amount at
Ex.P.65 and they have sent the original bill to BMTC. As
such, he is not entitled to any amount under the head of
Medical Expenses. The petitioner has claimed that he has
lost 90 days of work without pay and 90 days of half pay
leave as per Exs.P.57 & 58. The petitioner must be suitably
compensated for the loss of these leaves. From the salary
SCCH 25 48 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
slip at Ex.P.55 it is clear that the salary of the petitioner per
day is Rs.1,000/. Therefore, Rs.1,80,000/ is granted for
Loss of Income during laid up period. As mentioned above
the Petitioner was treated at Government Hospital and at
Hemavathi Orthopedic and Trauma Center at Tumkur,
wherein he was treated as an in patient from 28.08.2018 to
11.09.20218. In this regard Pw.7 has produced Discharge
summary of Hemavathi Orthopaedic & Trauma Centre at
Ex.P.64. During that time, certainly he would have spent
some amount towards attendant, conveyance,
transportation and for other incidental expenses. Therefore,
the Petitioner is entitled for a sum of Rs.20,000/ towards
attendant, conveyance, transportation and other
incidental expenses. The total compensation comes to
Rs.2,40,000/.
37. Issue No.2 in MVC 6197/2019:
In order to prove the injuries and disability suffered by
SCCH 25 49 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
the petitioner, the petitioner has produced the wound
certificate as per Ex.P.6. As per Ex.P.6, the Petitioner has
sustained (1) Soft tissue injury and (2) Fracture L1 rout
neurological involvement and (3) o/d burst fracture of L1.
Out of these injuries, injury No.1 is simple and injury Nos.2
& 3 are grievous in nature.
38. The petitioner has got examined one more
witness Mr.R.Agilasithan MRO at Sanjay Gandhi Hospital as
PW.4 and he got marked Ex.P.45 : One Case sheet. In the
crossexamination of PW.4 nothing worthwhile is elicited.
39. The petitioner has also got examined
Dr.S.A.Somashekar - Orthopedic Surgeon at Bowring and
Lady Curzon Hospital as PW.5 and got marked Exs.P.46 &
47 OPD Card and One recent Xray. He has deposed the
details of surgery undergone by the petitioner for
decompressions and stabilization with pedicle screws and
rods on 30.06.2019 and has stated the total disability of
SCCH 25 50 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
spine at 24% and that of his whole body at 12% and the
disability as permanent.
40. PW.5 in his cross examination has stated that he
has not treated the petitioner. He only assessed the
disability of the petitioner. The fractures are united and he
has not issued any separate disability certificate to the
petitioner.
Disability:
41. The petitioner has averred that, he is working as
a Tailor. From the evidence of PW.3 it can be seen that the
disability being suffered by the petitioner will impact his
work as a Tailor and also impact his day today activities.
Therefore, the total disability of the whole body at 12%
estimated by PW.3, is fixed as the functional disability.
Monthly income:
SCCH 25 51 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
42. The Petitioner has deposed in his evidence that,
he was working as a Tailor and earning Rs.20,000/ per
month. In support of this he has not produced any
documents such as Bank Statement, receipts etc., nor
examined any witness. The accident occurred in the year
2018. Under such circumstances, this court has to
consider the income of the petitioner notionally for
calculating the compensation. Therefore this Court deems
it fit to fix the notional income of the petitioner at
Rs.12,500/ per month. Keeping all the above things in
mind, Petitioner is entitled to the following compensation:
i) PAIN AND SUFFERING:
After the accident, the Petitioner was shifted to Govt.
Hospital, Sira then District Govt. Hospital, Tumkur then
Sapthagiri Hospital, Hesaraghatta, Bangalore. Thereafter for
higher treatment to Sanjay Gandhi Institute of Trauma &
Orthopaedics Govt. Hospital, Bangalore, wherein he was
admitted and treated for 20 days. As per Ex.P.10, the
SCCH 25 52 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
petitioner took treatment as an inpatient in District
Hospital, Tumkur, Sapathagiri Hospital and Sanjay Gandhi
Institute of Trauma and Orthopedics. Considering that the
nature of injuries he has undergone are grievous, the
Petitioner is awarded a sum of Rs.1,00,000/ under this
head.
ii) MEDICAL EXPENSES:
The Petitioner has pleaded that he has spent a sum of
Rs.3,00,000/ towards treatment, medicines, conveyance,
food and nourishment and other incidental expenses etc. In
this regard, he has produced 40 medical bills as per Ex.P.8
for a sum of Rs.30,964/. There is no contrary evidence
from the respondents to disprove the medical expenses by
the petitioner. Therefore, the petitioner is entitled for the
above said amount under this head.
iii) LOSS OF INCOME DURING LAID UP PERIOD:
SCCH 25 53 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
As mentioned above the petitioner has sustained
simple and grievous injuries. The petitioner has produced
discharge summaries of above said hospitals to show the
duration and treatment. Therefore, considering the nature
of injuries it can be said that the Petitioner may have
required at least One month time for recovering from the
injuries sustained by him. Hence, he is entitled only for a
sum of Rs.12,500/ under this head.
iv) LOSS OF FUTURE INCOME:
On perusal of Ex.P.6/Wound Certificate, the petitioner
was aged about 23 years as on the date of accident. As per
the dictum laid down in Sarala Verma's case the
appropriate multiplier applicable to his age is 18.
Therefore, the Petitioner is entitled for a sum of
Rs.3,24,000/ (Rs.12,500/ x 12 x 18 x 12%=
Rs.3,24,000/) under this head.
SCCH 25 54 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
(v) LOSS OF FUTURE AMENITIES AND
HAPPINESS:
The Petitioner was aged about 23 years at the time of
accident. He has sustained grievous injuries and as per
consideration of this Tribunal, he is suffering from 12%
functional disability. The Petitioner has to suffer this
disability throughout his life. Because of this he will have to
lose some of the amenities and comforts. Therefore,
considering the age and nature of injuries that the
Petitioner has suffered, a sum of Rs.20,000/ is awarded
under this head.
(vi) ATTENDANT, CONVEYANCE, FOOD AND
NOURISHMENT CHARGES:
After the accident, the Petitioner was treated in the
above said hospitals, admitted as an inpatient and
discharged with advise. However, during this period he
must have spent considerable amount on his food and
nourishment, conveyance and attendant expenses.
SCCH 25 55 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
Therefore, the Petitioner is entitled for a sum of
Rs.20,000/ under this head.
43 The Petitioner is entitled to compensation under
the following heads:
1. Pain & suffering Rs.1,00,000/
2. Medical expenses Rs.30,964/
3. Loss of income during laid up Rs.12,500/
period
4. Loss of future income Rs.3,24,000/
5. Loss of future amenities and Rs.20,000/
happiness
6. Attendant, conveyance, food and Rs.20,000/
nourishment charges
TOTAL Rs.5,07,464/
If it is rounded off it comes around Rs.5,07,500/ and same
is awarded under different heads to the Petitioner.
LIABILITY
44. The Respondent No.2 has contended in MVC
3939/2019 that the deceased was spare driver and he is not
covered under the insurance policy. In support of this he
has produced the following decisions:
SCCH 25 56 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
(i) Civil Appeal No.10145/2016 - Nishan Singh & Ors.
Vs. Oriental Ins. Co. Ltd., Throught Regional Manager
& Ors.
Wherein the Hon'ble High Supreme Court held that,
Maruti Car of appellant which crashed into Truck
of respondent from behind, driven negligently
without maintaining sufficient distance.
(ii) 2019 ACJ 2221 : Oriental Ins. Co. Ltd., Vs. Shanthi
Nanaiah and Ors.
Wherein the Hon'ble High Court of Karnataka held
that, there was composite negligence of a Truck
parked in a center of the road and the Jeep which hit
it'.
As against this the respondent No.1 has furnished
three decisions:
(i) 2007 ACJ 2782 (Karnataka) : United India Ins. Co.
Ltd., Vs. Nagaraja & Anr.
Wherein the Hon'ble High Court of Karnataka has
held that 'the words engaged in driving' would not
necessarily mean that driver should be actually
driving at the time of accident. The said words
include a spare driver who is also obviously
engaged for driving but on shift basis. .... The Act
policy covers the risk of only a driver. In case of
spare driver, the Traffic regulations do permit
coverage of risk of a spare driver on payment of
additional premium.
The court further held that, since there was only
one claim by the driver whose duty was to drive
on shift basis, the insurer is liable to pay the
compensation.
SCCH 25 57 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
(ii) 2010 ACJ 184 (Kerala) : Alagadurai Vs. immanuel
and Ors.
Wherein the Hon'ble High Court of Kerala has held
that a driver engaged in a goods vehicle though he
was not driving the vehicle at the time of accident
is covered under the Act policy but the liability of
the insurance company is limited as per liability
under Workmen's Compensation Act as per
Sec.147(1) Proviso(i)(c) of MV Act.
(iii) MFA No.242 (2013(MV) (Karnataka) : National Ins.
Co. Ltd., Vs. Smt. Bhagya and Ors.
Wherein the Hon'ble High Court of Karnataka has
held that in terms of the additional premium,
liability to Workmen Compensation to two
employees are covered in addition to the basic
policy or the act policy.
An additional premium having been collected for
two employees, it is therefore, required for the
Insurance Company to bear the compensation
required to be paid towards such employees if any
claim is raised by them. Now the question would
be as regards identification of the employees
covered. That question would be relevant only if
there are more than two claimants, since only two
claimants are covered if lesser than two claims are
made then as long the employer/owner of the
insured bus were to consent to the claim and to be
an employee, such employee would be covered by
the policy.
The counsel for the petitioner has relied upon the
following decisions:
SCCH 25 58 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
(i) AIR 2013 SC 473 : National Ins. Co. Ltd., Vs.
Balakrishnan and Anr.
Wherein the Hon'ble Supreme Court has held that
a comprehensive/package policy would cover the
liability of the insurer for payment of compensation
for the occupant in a Car and an Act policy stands
on a different footing which does not cover a Third
Party risk of an occupant in a Car.
(ii) 2018 SC 189 : Jagtar Singh alias jagdev Singh Vs.
Sanjeev Kumar and Ors.
Wherein the Hon'ble Supreme Court of India has
held that liability of insurance companies in
respect of occupant or gratuitous passengers in a
private car depends on whether the policy is a
comprehensive policy/package policy or whether it
is just an Act policy.
(iii) MFA No.188/2017 C/w 637/2018 :National Ins.
Co. Ltd., Vs. Vijay Praveen Cutinha and Anr.
Wherein the Hon'ble High Court of Karnataka has
held that the premium paid would determine the
nature of the coverage of policy. The second
construction is, when the word
package/comprehensive is used that 'everything
including the occupant, driver, owners, are covered
under the policy'. The premium paid is irrelevant
and recede to oblivion.
(iv) MFA No.23416/2013 : M.Dada Khalander Vs.
Muneer Khan and Anr.
SCCH 25 59 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
Wherein the Hon'ble High Court of Karnataka has held that in
case of comprehensive or package policy, in a two wheeler, it covers the
pillion rider and of a private car covers the occupants.
And it is also pertinent to quote IMT 28 LEGAL
LIABILITY TO PAID DRIVER AND/OR CONDUCTOR AND/OR
CLEANER EMPLOYED IN CONNECTION WITH THE OPERATION
OF INSURED VEHICLE
(For all Classes of vehicles.)
In consideration of an additional premium of Rs.
25/- notwithstanding anything to the contrary
contained in the policy it is hereby understood and
agreed that the insurer shall indemnify the insured
against the insured's legal liability under the
Workmen's Compensation Act, 1923 ,the Fatal
Accidents Act, 1855
or at Common Law and subsequent amendments of
these Acts prior to the date of this Endorsement in
respect of personal injury to any paid driver and/or
conductor and/or cleaner whilst engaged in the
service of the insured in such occupation in
connection with the vehicle insured herein and will
in addition be responsible for all costs and expenses
incurred with its written consent.
Provided always that
(1) this Endorsement does not indemnify the
insured in respect of any liability in cases where the
insured holds or subsequently effects with any
insurer or group of insurers a Policy of Insurance in
SCCH 25 60 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
respect of liability as herein defined for insured's
general employees;
(2) the insured shall take reasonable precautions to
prevent accidents and shall comply with all
statutory obligations;
*(3) the insured shall keep record of the name of
each paid driver conductor cleaner or persons
employed in loading and/or unloading and the
amount of wages and salaries and other earnings
paid to such employees and shall at all times allow
the insurer to inspect such records on demand.
(4) in the event of the Policy being canceled at the
request of the insured no refund of the premium
paid in respect of this Endorsement will be allowed.
Subject otherwise to the terms conditions
limitations and exceptions of the Policy except so far
as necessary to meet the requirements of the Motor
Vehicles Act, 1988.
From perusal of all the decisions and IMT 28, it is clear
that if the driver was an employee of the insured then the
insurance has coverage of spare driver also. Moreover, the
insurance policy shows that an additional premium was
paid by the Sea Bird Company. Therefore, the respondent
Nos.1 & 2 are jointly and severally liable to pay
compensation to the petitioners. The respondent No.2
insurance company of the Sea Bird Bus is liable to
SCCH 25 61 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
indemnify the respondent No.1. The respondent No.3 is
absolved of liability in the absence of negligence on the part
of its driver. The petitioners in MVC No.161/2019 have
claimed for a sum of Rs.1,00,00,000/ but they are entitled
only for a sum of Rs.36,90,000/. The petitioners in MVC
No.3939/2019 have claimed for a sum of Rs.70,00,000/
but they are entitled only for a sum of Rs.17,44,100/. In
the same manner, the petitioner in MVC No.1903/2019 has
claimed for a sum of Rs.50,00,000/ but he is entitled only
for a sum of Rs.2,40,000/. The petitioner in MVC
No.6197/2019 has claimed for a sum of Rs.20,00,000/ but
he is entitled only for a sum of Rs.5,07,500/ with interest
@6% per annum from the date of petition till its realization.
Therefore, the petition needs to be allowed. Accordingly,
issue No.3 in MVC No.161/2019 and MVC No.3939/2019
and Issue No.2 in MVC Nos.1903/2019 and MVC
No.6197/2019 are held in the Affirmative.
SCCH 25 62 MVC Nos.161/2019,
3939/2019, 1903/2019
& 6197/2019
45. Issue No.3 & 4 in all the cases:
For the reasons and discussions made above and
findings to the above issues, this Tribunal proceeds to
pass the following:
ORDER
The petitions in MVC No.161/2019, MVC No.3939/2019 and MVC No.1903/2019, MVC No.6197/2019 are hereby allowed with cost.
These petitions as against the respondent No.3 is hereby dismissed.
The Respondent Nos.1 & 2 are jointly and severally liable to pay compensation to the Petitioners. However, the Respondent No.2 being insurer is liable to indemnify the Respondent No.1 and directed to deposit the SCCH 25 63 MVC Nos.161/2019, 3939/2019, 1903/2019 & 6197/2019 compensation amount to the Petitioners within 60 days from today.
The Petitioners in MVC No.161/2019 are entitled for a sum of Rs.36,90,000/ (Rupees Thirty Six Lakhs Ninety Thousand only) with interest @ 6% p.a. from the date of filing till the date of depositing the award amount.
On deposit of compensation and interest, Rs.40,000/ shall be released to the petitioner No.1 and Rs.20,00,000/ shall be deposited in FD in the name of petitioner No.2 in any N/S Bank for a period of 3 years and the remaining amount shall be released to the petitioner No.2 by way of epayment with due acknowledgment and proper identification.
SCCH 25 64 MVC Nos.161/2019, 3939/2019, 1903/2019 & 6197/2019 The Petitioners in MVC No.3939/2019 are entitled for a sum of Rs.17,44,100/ (Rupees Seventeen Lakhs Forty Four Thousand and Hundred only) with interest @ 6% p.a. from the date of filing till the date of depositing the award amount.
On deposit of compensation and interest, Rs.40,000/ shall be released to the petitioner No.3, Rs.3,00,000/ each shall be deposited in FD in the name of the petitioner Nos.1 & 2 for a period of 3 years in any N/S Bank and remaining amount shall be released to the petitioner No.1 by way of e payment with due acknowledgment and proper identification.
SCCH 25 65 MVC Nos.161/2019, 3939/2019, 1903/2019 & 6197/2019 The Petitioner in MVC No.1903/2019 is entitled for a sum of Rs.2,40,000/ (Rupees Two Lakhs Forty Thousand only) with interest @ 6% p.a. from the date of filing till the date of depositing the award amount.
On deposit of compensation and interest, entire amount shall be released to the petitioner by way of epayment with due acknowledgment and proper identification.
The Petitioner in MVC No.6197/2019 is entitled for a sum of Rs.5,07,500/ (Rupees Five Lakhs Seven Thousand and Five Hundred only) with interest @ 6% p.a. from the date of filing till the date of depositing the award amount.
SCCH 25 66 MVC Nos.161/2019, 3939/2019, 1903/2019 & 6197/2019 On deposit of compensation and interest, entire amount shall be released to the petitioner by way of epayment with due acknowledgment and proper identification.
Advocate fee is fixed at Rs.1000/ in each case.
The original copy of this judgment is ordered to be kept in MVC Nos.161/2019 and copies shall be kept in 3939/2019, 1903/2019 and 6197/2019.
Office to draw separate awards accordingly.
(Typed to my dictation directly on computer by the stenographer, corrected and then pronounced by me in open court on this the 4th day of April 2024) (PRAKRITI KALYANPUR) XXIII ASCJ, MEMBER MACT, Bengaluru.
ANNEXURE List of Witnesses examined for Petitioner:
SCCH 25 67 MVC Nos.161/2019, 3939/2019, 1903/2019 & 6197/2019 IN MVC 161/2019 PW.1 Sri. Vinayaka A.G. IN MVC 3939/2019 PW.1 Smt. Pavithra V. Hedge IN MVC 1903/2019 PW.6 Sri. Kallappa B. Puraj PW.7 Sri. Madhu G.V. IN MVC 6197/2019 PW.1 Sri. Anand Kumar @ Anand PW.4 Sri. R. Agilasithan PW.5 Dr.S.A.Somashekara List of Documents marked for Petitioner:
IN MVC 161/2019 Ex.P.1 FIR Ex.P.2 Complaint Ex.P.3 PM report Ex.P.4 Charge sheet Spot sketch Ex.P.5 Spot Mahazar Ex.P.6 Statement of account Ex.P.7 Pay slips (3 in Nos.) Ex.P.8 Notarized copy of Aadhar Card of Deceased Nikhitha SCCH 25 68 MVC Nos.161/2019, 3939/2019, 1903/2019 & 6197/2019 Ex.P.9 Notarized copy of Pan Card of deceased Nikhitha Ex.P.10 Notarized copy of my Aadhar Card Ex.P.11 Notarized copy of Adhar Card of petitioner No.2 Ex.P.12 Notarized copy of death certificate of Deceased Nikhitha Ex.P.13 True copy of IMV report Ex.P.14 Inquest Exs.P.15 to 18 Statement of witnessess (4 in Nos.) IN MVC 3939/2019 Ex.P.1 True copy of FIR Ex.P.2 True copy of First Information Ex.P.3 True copy of Spot Panchanama Ex.P.4 True copy of spot sketch Ex.P.5 True copy of IMV report Ex.P.6 True copy of Inquest Ex.P.7 True copy of PM report Ex.P.8 True copy of Charge sheet Ex.P.9 True copy of Bank Statement of deceased Dhanraj Ex.P.10 Notarized copy of DL of deceased SCCH 25 69 MVC Nos.161/2019, 3939/2019, 1903/2019 & 6197/2019 Ex.P.11 Notarized copy of Adhar Card of deceased Dhanraj Ex.P.12 Notarized copy of Aadhar Card of 3rd petitioner in MVC 3939/2019 Ex.P.13 Notarized copy of SSLC Marks Card of 3 rd petitioner in MVC 3939/2019 Ex.P.14 Notarized copy of Two Aadhar Card Ex.P.15 School Certificate Ex.P.16 Notarized copy of Ration Card IN MVC 1903/2019 Ex.P.48 True copy of FIR Ex.P.49 True copy of FIS Ex.P.50 True copy of Spot Mahazar Ex.P.51 True copy of MVA report Ex.P.52 True copy of Spot Mahazar Ex.P.53 True copy of Wound Certificate Ex.P.54 True copy of Charge sheet Ex.P.55 Pay slip for the month of April 2021 of petitioner in MVC 1903/2019 Ex.P.56 Medical Advance issued letter dated 25.08.2021 bt Asst. Accountant, BMTC Office, Bangalore Ex.P.57 Estmation issued by Shreyas Orthopedic and Trauma Centre SCCH 25 70 MVC Nos.161/2019, 3939/2019, 1903/2019 & 6197/2019 Ex.P.58 Leave sanction letter dated 31.12.2018 Ex.P.59 Another leave sanction letter dated 31.10.2018 Ex.P.60 Notarized copy of Aadhar card of PW.6 Ex.P.61 Notarized copy of SSLC Marks Card of PW.6 Ex.P.62 Authorization letter with letter dated 10.05.2022 Ex.P.63 Once case sheet Ex.P.64 Discharge summary Ex.P.65 Inpatient detail bill Ex.P.66 Eight Xrays Ex.P.67 Nine CT scan films IN MVC 6197/2019 Ex.P.1 True copy of FIR Ex.P.2 True copy of First Information Ex.P.3 True copy of Spot Mahazar Ex.P.4 True copy of spot rought sketch Ex.P.5 True copy of MVA report Ex.P.6 True copy of wound certificate Ex.P.7 True copy of charge sheet Ex.P.8 Medical bills (40 in Nos.) amount of Rs.30,964/ Ex.P.9 Medical prescriptions (7 in Nos.) SCCH 25 71 MVC Nos.161/2019, 3939/2019, 1903/2019 & 6197/2019 Ex.P.10 Discharge summary (3 in Nos.) Ex.P.11 Out Patient cards (3 in Nos.) Ex.P.12 MRI Scan report (3 pages) Ex.P.13 Xray & MRI films (9 in Nos.) Ex.P.45 One Case sheet Ex.P.46 OPD Card Ex.P.47 One recent Xray List of Witnesses examined for Respondent/s:
IN MVC 161/2019 RW.2 Sri. Hyderkhan RW.3 Sri.Jayashankar M.U. IN MVC 1903/2019 RW.1 Sri. Hussain Sab Chapper Band List of Documents marked for Respondent/s:
Ex.R.1 Five Photos with CD Ex.R.2 Authorization letter Ex.R.3 True copy of Policy (PRAKRITI KALYANPUR) XXIII ASCJ, MEMBER MACT, Bengaluru.