Bangalore District Court
Smt. Sugandhi A vs Sri Alavi on 1 September, 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 1st DAY OF SEPTEMBER 2016
MVC No.425/2013
****
PETITIONERS: 1. Smt. Sugandhi A.,
Aged about 44 years,
W/o Late Srinivas S. Balaji @
S.S. Balaji,
2. Kum. Sowmiya A.,
Aged about 16 years,
D/o Late Srinivas S. Balaji @
S.S. Balaji,
3. Smt. Rajalakshmi,
Aged about 66 years,
W/o Late Subramanyam A.,
2nd petitioner being minor
Reptd. By her mother and
natural guardian
Smt. Sugandhi A.,
1st petitioner herein
All are R/at No.B-III 005,
White House, 15th Cross,
6th Main, R.T. Nagar,
Bengaluru - 560 032.
(Sri K. Suresh, Advocate)
Vs.
2 MVC 425/2013
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RESPONDENTS: 1. Sri Alavi, major,
S/o Muhammad Haji,
Manchincheri House,
Ulanam Post, Palathingal,
Parappanangadi,
Malappuram, Kerala - 676 303.
(Owner of the Tata vehicle
bearing No.KL-55-H-1264)
(Sri Sidhique C.K., Advocate)
2. The Regional Manager,
United India Insurance Co. Ltd.,
Motor T.P. Claims Department,
Regional Office, 5th & 6th Floor,
Krishi Bhavan, Nrupathunga
road, Bengaluru - 560 001.
Policy
No.1019003112P000204206
valid from 8-5-2012 to 7-5-2013
policy issued at its Malappuram
Branch, Kerala State.
(Sri Janardhan Reddy, Advocate)
JUDGMENT
The petitioners being the legal heirs of deceased Srinivas S. Balaji @ S.S. Balaji have filed this claim petition under Section 166 of the M.V. Act claiming compensation of Rs.10,00,00,000/- on account of his death in a road traffic accident which took place on 06-09-2012.
2. The brief facts of the petition averments are as under:
3 MVC 425/2013
SCCH-16 1st petitioner is wife, 2nd petitioner is daughter and 3rd petitioner is mother of deceased Srinivas.S.Balaji @ S.S.Balaji.
3. On 6-9-2012 at about 7.45 p.m., the deceased was proceeding in his car bearing No.KA-03-MN-2289 slowly, carefully and cautiously by observing all traffic rules and regulations on the left side of the road of Gundlupet. When the deceased reached between Maddur Check Post and Mule Hola towards Sulthan Batheri, at that time one Tata 909 vehicle bearing No.KL-55/H-1264 came with high speed in a rash and negligent manner, without observing the traffic rules and regulations from the opposite direction and dashed against the deceased car. Due to the said impact, the deceased sustained severe head and bodily injuries and car was extensively damaged.
4. It is further case of the petitioners that immediately after the accident, Srinivas was shifted to Assumption Hospital, Sulthan Bathery. The duty doctors examined the deceased and declared brought dead. Thereafter, the post mortem was conducted and body was handed over to the 4 MVC 425/2013 SCCH-16 petitioners. The petitioners have conducted the funeral and obsequies by spending an amount of Rs.1,50,000/-.
5. It is further case of the petitioners that prior to the date of accident, the deceased was working as Vice President at Wall Street a sister concern of M/s. Bates India Pvt. Ltd., and drawing salary of Rs.25,00,000/- p.a. The deceased was contributing his entire income for the welfare and maintenance of the petitioners. Due to sudden and untimely death of the deceased, the petitioners are undergoing deep mental shock and financial hardship, as the deceased was only bread earning member in the family.
6. The petitioners further stated that the accident was due to sole negligence on the part of driver of offending vehicle and the jurisdictional police have registered a case against the driver of said vehicle in Cr.No.312/12 in their Cr.No.630/12 for the offence punishable under Sec.304(A) of IPC R/w.Sec184 of MV Act. The first respondent being the RC owner and second respondent being the insurer of the above said Tata 909 vehicle are jointly and severally liable to pay compensation and prayed to allow the petition. 5 MVC 425/2013
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7. In response to the notice, both the respondents appeared and filed their objections to the main petition.
The respondent No.1 denied that the accident was due to negligence on the part of driver offending vehicle bearing No.KL.55/H.1264. It is contended that the accident occurred only due to negligence on the part of the deceased. It is submitted that as on the date of accident, the above said vehicle was insured with the 2nd respondent and driver was holding valid and effective DL and there was valid FC and permit and 2nd respondent is liable to pay compensation to the petitioners. Hence, on all these grounds, the respondent No.1 prayed to dismiss the petition with costs.
8. The respondent No.2 admitted that, it had issued a policy in respect of lorry bearing No.KL.55/H.1264 and it was in force as on the date of accident. The respondent No.2 contended that its liability is subject to terms and conditions and limitations of the policy. It is contended that there is violation of Section 134(C) and 158(6) of M.V. Act as the respondent No.1 failed to intimate about the accident and the jurisdictional police have not furnished particulars. The 6 MVC 425/2013 SCCH-16 respondent No.2 further contended that the petitioners have to prove the involvement of above said lorry in the accident and the alleged accident was due to sole negligence of the deceased. It is contended that 1st respondent entrusted the vehicle to a person who do not possess valid driving licence or badge from concerned authority and the vehicle had no valid permit and FC to run the lorry in public roads. The respondent No.2 denied the manner of accident and contended that as per the sketch, the alleged accident was due to negligence on the part of the deceased and the insured lorry was proceeding on extreme left side of the road. It is also contended that due to untimely death of Srinivas, the petitioners have not sustained any financial loss as they were not dependent upon the deceased. The respondent No.2 denied the age, income and occupation of the deceased and also manner of the accident and contended that, the compensation claimed by the petitioners is exorbitant and without any basis. Hence, on all these grounds, the respondent No.2 prayed to dismiss the petition with costs. 7 MVC 425/2013
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9. On the basis of the above said pleadings and propositions of law, my Predecessor in office has framed the following:
ISSUES
1. Whether the petitioners prove that, the deceased Srinivas S. Balaji died due to injuries sustained in a road traffic accident that occurred on 06-09-2012 at about 7.45 p.m., on Gundlupet main road, in between of Maddur Check Post and Mule Hola, due to rash and negligent driving of the driver of the Tata 909 vehicle bearing registration No.KL-55-H-1264?
2. Whether the petitioners prove that, they are legal representatives of deceased?
3. Whether the petitioners are entitled for any compensation as claimed? If so, to what extent and from whom.?
4. What Order?
10. The first petitioner examined herself as PW1 and got marked the documents at Ex.P1 to Ex.P35. The eye witness was examined as PW2 and got marked document at Ex.P36. The employer of the deceased examined as PW3 and got marked documents at Ex.P37 to Ex.P40.
11. Per contra, the official of the respondent No.2 company was examined as RW1 and got marked documents 8 MVC 425/2013 SCCH-16 at Ex.R1 to Ex.R3. The CPI of Gundlupet Circle was examined as RW2 and got marked document at Ex.R4.
12. I have heard the arguments and perused the materials on record. Learned counsel for the petitioner submitted notes of arguments and relied upon the following rulings:
1) 2007 (4) KCCR 2810 between M/s. Mahesh Centre and another Vs. People Charity Fund by Trustees.
2) AIR 1997 Supreme Court 1735 between Pushpabai Parshottam Udeshi and others Vs. M/s. Ranjit Ginning and Pressing Co. Pvt. Ltd., and another.
3) ILR 2003 KAR 493 between Mallamma Vs. Balaji and others.
4) 2009 ACJ 1725 between Bimla Devi and others Vs. Himachal Road Trans. Corpn. and others.
5) 2011 ACJ 911 between Ravi Vs. Badrinarayan and others.
6) 2013 ACJ 679 between S. Ramana Vs. T. Venkateswarlu and another.
7) 2013 ACJ 258 between New India Assurance Co. Ltd., Vs. Indra Devi and others.
8) (2013) 10 Supreme Court Cases 695 between Minu Rout and another Vs. Satya Pradyumna Mohapatra and others.9 MVC 425/2013
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9) 2014 ACJ 704 between Pawan Kumar and another Vs. Harkishan Dass Mohan Lal and others.
The learned counsel for the respondent No.2 has relied upon the following rulings:
1) 1999 ACJ 1242 between Rama Bommayya Nayak Vs. Valaya Todiyal Mohammed and others.
2) ILR 2013 KAR 739 between Bangalore Metropolitan Transport corporation, Central Office Vs. Sri B.N. Nagesh and another.
3) 2009 ACJ 437 between Ram Sujan Tiwari Vs. Sita Gupta and others.
4) ILR 2012 KAR 6065 between Sri B.T. Venkatesh Vs. Sri Jagadeesh Kumar and others.
5) 2004 ACJ 2094 between National Insurance Co. Ltd., Vs. Challa Bharathamma and others.
6) 2008 ACJ 2372 between Bhakra Beas Management Board Vs. Kanta Aggarwal and others.
7) 2011 ACJ 161 between Shridevi and others Vs. S. Sarojini and another.
8) 1996 (4) Supreme Court Cases 255 between A. Trehan Vs. Associated Electrical Agencies and another.10 MVC 425/2013
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9) MFA No.11587/2006 between The Oriental Insurance Company Limited Vs. Sri V. Basavaraju.
13. By considering the evidence on record and because of my below discussed reasons, I answer the above issues in the following:
Issue No.1: In the Affirmative Issue No.2: In the Affirmative Issue No.3: Partly in the Affirmative Issue No.4: As per final order for the following:
REASONS ISSUE NO.1:
14. The petitioners being L.Rs of the deceased Srinivas have filed this claim petition on account of his death on the ground that on 6-9-2012 at about 7.45 p.m.,due to rash and negligent driving of Tata 909 vehicle bearing No.KL-55-H- 1264, Srinivas succumbed to the injuries sustained in the accident.
15. In this case, the learned counsel for the respondent No.2 during the course of arguments canvassed that it is a case of self accident and there is delay of one day in lodging the complaint. As per the sketch, it is not head on collision 11 MVC 425/2013 SCCH-16 and there is no valid permit in Karnataka and tax not paid to run in Karnataka. Further the learned counsel for the respondent No.2 argued that as per the materials on record, this accident took place when the deceased himself tried to over take the car and hence he has contributed for cause of the accident.
16. The learned counsel for the petitioner argued that the accident was due to rash and negligent driving of lorry bearing No.KL.55/H.1264. Immediately after the accident at about 12.15 a.m. complaint was lodged by Sri Kumar, cousin brother of the deceased. The suggestions were put PW-1 itself makes it clear that the respondents have admitted the accident. As per IMV report, right side of the car was damaged. Eye witness-PW-2 was examined before this Tribunal and he clearly stated that the accident was due to rash and negligence of driver of offending vehicle. He also further argued that in order to attribute the contributory negligence, respondents have not examined driver of offending vehicle and hence in the absence of such evidence, no negligence can be attributed on the deceased. 12 MVC 425/2013
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17. I have carefully perused the materials on record. 1st petitioner has reiterated the petition averments in her affidavit filed by way of examination-in-chief as PW1. She has deposed regarding the manner of accident, death of her husband and produced the FIR with complaint at Ex.P1, Mahazar at Ex.P2, sketch at Ex.P3, Inquest mahazar at Ex.P4, Post-mortem report at Ex.P5, IMV report at Ex.P6 and charge sheet at Ex.P7.
18. PW-2-eye witness to the accident has stated that on the alleged date of accident at about 7.45p.m. he was proceeding on Gundlupet-Calicut Main road in order to go to his native place Sultan Bathery and at that time, deceased was in his car bearing No.KA.03/MN-2289 ahead of him and was driving carefully and cautiously by observing traffic rules and regulations on the left side of the road and when he reached between the Maddur Check post and Mule Hola towards Suylthan Bathery within the limits of Gundlupet police station a Tata 909 vehicle bearing No.KL.55/H.1264 came in rash and negligent manner without following the traffic rules and regulations from opposite direction and all of a sudden came to its wrong side and dashed against the car 13 MVC 425/2013 SCCH-16 of the deceased. Due to the impact, the deceased sustained severe head and bodily injuries. PW-2 further deposed that on seeing the accident, he stopped his car and shifted the injured to the nearby Assumption hospital, Sulthan bathery and doctors in the said hospital declared him brought dead and the intimation was given to his wife/1st petitioner. PW-2 further stated that complainant came to the hospital and he has given statement to the police in the hospital and on 11-9- 2012, the driver of offending vehicle was arrested.
19. Per contra, official of respondent No.2 has deposed that the alleged accident was between the car of the deceased and another car and the lorry was falsely implicated. In para-8 of affidavit, RW-1 was referred cross-examination, which is not in accordance with provisions of CPC. Hence, evidence of RW-1 by referring to the cross-examination of PW-2 is not considered.
20. CPI of Gundlupet Circle is examined as RW-2 who has produced the copy of permit marked as Ex.P.4. WITH REGARD TO DELAY:
21. As per the contentions of the learned counsel for the respondent No.2, there is delay of one day in lodging the 14 MVC 425/2013 SCCH-16 complaint. As per the complaint and FIR, the alleged accident occurred on 6-9-12 at about 7.45. p.m. The complainant is none other than the cousin brother of the deceased has lodged the complaint at about 00.15 hours of 7-9-12. RW-2 in his cross-examination has admitted that the accident occurred at about 7.45 p.m. on 6-9-12 and at about 12.15 a.m. crime was registered. It is to be noted that immediately after the accident, deceased was taken to Assumption hospital at Sulth Bathery, within a span of not less than 4hours of the accident, complaint was lodged. Hence, there is no water in the contention of the learned counsel for the respondent No.2 that there is delay of one day in lodging the complaint.
With regard to the involvement of vehicle bearing No.KL.55/H.1264:
22. As per the complaint and FIR, the alleged accident was due to rash and negligent driving of the driver of the lorry bearing No.KL.55/H.1264. Immediately, on the basis of complaint, FIR was lodged by the jurisdictional police against the driver of the offending vehicle in their Cr.No.312/12 for the offence punishable under Sec. 279,304(A) of IPC 15 MVC 425/2013 SCCH-16 R/w.Sec.184 of MV Act. The mahazar was drawn on the very next day of the accident at about 2.30 p.m., which clearly reveals that the car bearing No.KA.03/MN.2289 and lorry bearing No.KL.55/H.1264 were involved in the accident. The mahazar also reveals that both the vehicles were damaged in the accident. The spot sketch marked at Ex.P.3 reveals that the accident took place which is 7ft from Southern edge of the road. In the sketch also both vehicle were shown. The IMV report at Ex.P.6 reveals that the above said both vehicles were damaged in the accident.
23. PW-1 admittedly is not an eye witness to the accident. She stated that she has seen the place of accident and width of the road is 25ft . PW-1 stated that at the place of accident, road is two way road and admitted as to the correctness of rough sketch. PW-1 stated that at around 8 to 8.15 p.m. in the night, this accident occurred.
24. In the cross-examination, PW-1 was suggested that the accident occurred in the middle of the road and it is self accident and the said suggestion was denied. No where, it was suggested by the respondent No.2 to PW-1 and denied 16 MVC 425/2013 SCCH-16 by Pw-1 that the above said lorry bearing No.KL.55/H.1264 was not at all involved in the accident.
25. PW-2 is an eye witness to the accident, in his cross- examination specifically stated that on the date of accident, he was proceeding from Gundlupet to Sulthan Bathery in his car and the incident occurred at about 7.45 to 8p.m. PW-2 stated that the deceased was moving in his car with the speed of 40-45Kms and it is a straight road. The suggestions were put to PW-2 that he has not witnessed the accident and he came to the spot after the accident and the said suggestions were denied. It was also suggested that if the deceased had driven the car carefully, the accident ought not to have occurred. PW-2 specifically stated that the right side of the lorry came in contact with the right side head light of the car. Pw-2 stated that he shifted the victim to the Assumption hospital. PW-2 stated that while he was moving, there were other two cars were proceeding ahead of his car and the accident took place within seconds difference of one vehicle passed and two vehicles met with the accident. PW-2 stated that the vehicle which passed was in more speed than other two vehicles. PW-2 stated that the accident occurred towards 17 MVC 425/2013 SCCH-16 right side of his vehicle. PW-2 stated that the deceased car was moving normally and there was no space in the left side of the car as it is forest.
26. The above said cross-examination of PWs 1&2 makes it very clear that the lorry bearing No.KL.55/.H.1264 and car bearing No.KA.03/MN2289 were involved in the accident. Various suggestions were put to PWs 1&2 itself makes it clear that the respondents have not denied the involvement of two vehicles in the accident. More over, respondent No.1 who has contested the petition by filing his objections has not denied the involvement of lorry bearing No.KL.55/H.1264 in the alleged accident. The official of respondent No.2 himself stated that this accident took place at about 7.45 p.m. on 6-9-2012. With regard to the evidence of RW-1, he is not an eye witness to the accident. In his cross-examination, RW-2 admitted that there is no collision between the car of the deceased and another car. Therefore, when over all evidence is read along with FIR/complaint at Ex.P.1, mahazar at Ex.P.2, rough sketch at Ex.P.3 and IMV report at Ex.P.6, it is quite clear that the car bearing 18 MVC 425/2013 SCCH-16 No.KA.03/MN.2289 and lorry bearing No.KL.55/.H.1264 were involved in the alleged accident.
With regard to negligence:
27. The evidence of PW-2 was not shaken in the cross- examination. RW-1 has clearly admitted that the accident was not between the car of the deceased and another car. As per the spot mahazar, place of accident is 7ft southern edge of the road. It is not in dispute that at the time of accident, the deceased was proceeding from Bangalore to Sulther Bathery, whereas the offending vehicle was proceeding in the opposite direction towards Gundlupet. The respondents have not disputed the sketch at Ex.P.3. Even PW-1 admitted that as to the correctness of Ex.P.3. The road on which this accident took place is a straight road. As per the sketch and Mahazar, this accident took place which is about 7ft from the Southern edge of the road. As per the sketch, the width of the road is 24ft. If at all, as contended by the learned counsel for the respondent No.2 that there was negligence on the part of the deceased, the accident ought to have been occurred on the right side of the road or middle of the road. But, in this case, the accident occurred which is about 7ft from the Southern 19 MVC 425/2013 SCCH-16 edge of the road, which reveals that the deceased was proceeding on the extreme left side of the road. As per the IMV repot at Ex.P.6, front wind screen glass damaged and broken into pieces, front right side body damaged, bonnet damaged, right side indicator, right side door, right side view mirror damaged, right side front luggage body angular damaged bumper damaged in respect of lorry bearing No.KL.55/.H.1264. Front wind screen glass damaged and broken into pieces, front shape fully damaged with head lights, indicators, bumper bonnet damaged and came out from the fixture, radiator damaged, chassis damaged and bend engine damaged, right side driver door damaged and came out from the fixture, right side wheel assembly completely damaged and rear body and top damaged in respect of car bearing No.KA.03/MN.2289.
28. It is to be noted that as rightly contended by the learned counsel for the petitioner, by examining PWs 1&2 and by producing the police records, petitioners have discharged their initial burden of proving their case. Per contra, respondent No.2 has not examined the driver of the lorry who 20 MVC 425/2013 SCCH-16 is the best person to speak regarding the circumstances under which this accident occurred.
29. The learned counsel for the respondent No.2 relied upon the various judgments, out of which, first judgment is with regard to the accident while crossings of the road.
Second judgment is in respect of accident occurred at junction and the deceased was attempting to cross the road.
In the third decision, it was held that it is the duty of driver to drive the vehicle cautiously when there is pit.
The citation Nos 4&5 are in respect of validity of permit.
The citations No.6 is in respect of ex-gratia payment. Citation Nos 7&8 are in respect of Sec.53 of Employees Compensation Act and are not applicable to the present case on hand.
In first ruling relied on by the learned counsel for petitioner that the Hon'ble High Court of Karnataka held that the stray admission shall not be criteria or basis to arrive at a conclusion and evidence should be read as a whole .
In 2nd ruling riled by the petitioner is of the Hon'ble Apex Court, in which it is held that the maxim "res-ipsa- 21 MVC 425/2013
SCCH-16 loquitur"-requirements-burden shifts on the respondent to prove that the accident was not due to his negligence.
In 3rd ruling riled by the learned counsel for the petitioner is of he Hon'ble High Court of Karnataka, in which it is held that the provisions of the Evidence Act need not be strictly applied in a case of motor vehicle accident to prove rash and negligence driving..
In the 4th ruling relied by the learned counsel for the petitioner is of he Hon'ble Apex Court, in which it is held that the strict proof of accident is not necessary and it is sufficient, if case is proved on the touchstone of proposition of law. Standard of proof beyond reasonable doubt could not have been applied, in case of motor vehicle accident claims. There is no disputed as to the above said position of law.
In the 5th ruling relied by the learned counsel for the petitioner is of he Hon'ble High Court of Andhra Pradesh, in which it is held that where eye witness deposed as to the manner of accident contributory negligence cannot be attributed.
Further in 6th ruling relied by the learned counsel for the petitioner is of the Hon'ble Apex Court, in which it is held 22 MVC 425/2013 SCCH-16 that in the absence of evidence of driver of offending vehicle contributory negligence cannot be attributed to the deceased. So also, the Hon'ble Apex court reiterated the above said position of law in a ruling reported 2014 ACJ 714 (Pawan Kumar and another vs Harikishan Dass Mohan Lal and others).
30. In this case, when the spot mahazar and sketch are read along with the evidence of PWs 1&2, it is quite clear that the driver of offending lorry came to the extreme right side of the road and which resulted in accident. RW-1 admitted that it is not case of accident between the car of the deceased and another car. The evidence of PW-2 has not been shaken in the cross-examination by the respondent No.2. The respondent No1 though filed his objections has not contested the claim nor respondent No.2 made any efforts to examine the driver of the lorry. Hence, viewed from any angle, it is quite clear that the accident was due to rash and negligent driving of driver of lorry bearing No.KL.55/H.126. Accordingly I answer this Issue No.1 in the affirmative. 23 MVC 425/2013
SCCH-16 ISSUE NO 2:
31. No where in the cross-examination of respondents have disputed that the petitioners are not the LRs of the deceased. There are no rival claimants' apart from the petitioners. Hence, it can easily be come to the conclusion that the petitioners are only the LRs of the deceased. Accordingly, issue No.2 is answered in the affirmative.
ISSUE NO 3:
32. This issue is in respect of quantum of compensation to be awarded to the petitioners and the liability to pay the same.
As per the evidence of PW-1 as well as petition averments, at the time of accident, the deceased was working as vice president at M/s Abates India Pvt.Ltd.,and getting salary of Rs.25,00,000/-p.a. PW-1 produced the appointment letter of AAREN INITIATIVE at Ex.P.15 dated 1-8-2007, which reveals that the deceased earlier was Associate business Director in the said private limited company and drawing salary of Rs.3,96,000/-p.a. The agreement of AAREN INITIATIVE Out Door Advertising Pvt.Ltd is at Ex.P.16. The appointment letter of Bates of India dt.19-4-2011 at Ex.P.17 24 MVC 425/2013 SCCH-16 reveals that the deceased was appointed as Senior Vice President w.e.f.25-4-2011 and his basic salary was Rs.70,000/-p.m., and the total remuneration was Rs.28lakhs p.a. and his gross salary was Rs.1,89,184/-p.m. Form-16 for the year 1-4-2007 to 31-3-2008 marked at Ex.P.18 reveals that during the said period, the deceased drawn salary of Rs.15,05,100/-p.a. Ex.P.19 -Form No.12B reveals the said fact. Ex.P.20-From-16 for the period from 1-4-2008 to 31-3-2009 reveals that during the said period, the deceased drawn salary of Rs.20,61,404/-p.a. Income tax returns for the assessment year 2010-11 at Ex.P.21 reveals during the said period, gross salary of the deceased was Rs.17,45,937/-p.a. Form-16 at Ex.P.22 for the year 1-4-2009 to 31-3-2010 at Ex.P.22 reveals that the deceased had drawn gross salary for the said year was Rs.17,41,428/-p.a. Ex.P.23-Form No.12B also confirms the said fact. The Income tax returns for the assessment year 2011-12 at Ex.P.24 reveals the gross salary of the deceased as Rs.16,91,980/-p.a. The Income tax returns for the assessment year 2012-13 at Ex.P.25 reveals during the said period, gross salary of the deceased was Rs.21,47,296/-p.a. From No.16 at Ex.P.26 for 25 MVC 425/2013 SCCH-16 the assessment year 1-7-2011 to 31-3-2012 reveals that the deceased drawn salary of Rs.16,80,156/-p.a. during the said period. Form-16 at Ex.P.27 for the year 1-4-2012 to 6-9-2012 reveals during the said period, the deceased had drawn salary of Rs.10,25,015/-p.a. Income tax returns for the assessment year 2013-14 at Ex.P.28 reveals that the deceased had gross total income for the said period was Rs.26,04,088/-.
33. PW-1 produced the pay slips of the deceased from May 2012 to August 2012,which reveals that he was drawing salary of Rs.1,86,684/-. Out of which, professional tax of Rs.200/- and income tax of Rs.42,971/- was deducted. Ex.P.33 is the letter issued by the Bates India Pvt.Ltd., reveals that the salary of the deceased for the month of September 2012 was Rs.1,89,184/-p.m.
34. PW-3-Finace Manager at M/s.Bates India Private Ltd., deposed about the appointment of the deceased and produced Form-16 as per Ex.P.38 for the year 2012-13 and 2013-14 and attendance register extract for the period from January 2012 to September at Ex.P.39. It was suggested to PW-3 that the deceased was not permanent employee and the said suggestion was denied.
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35. I have perused the appointment letter at Ex.P.37, which clearly reveals that the deceased was appointed as Senior Vice President and there is no reference that he was temporary employee. The attendance register, appointment letters and pay slips as discussed above make it very clear that the deceased at the time of accident was Senior Vice President at Bates India Pvt.Ltd.
36. Ex.P.33-certificate issued by the Bates India Pvt.Ltd., reveals for the month of September 2012, salary of the deceased was Rs.1,89,184/-p.m. Ex.P.29 to P.32 also reveals that the deceased had drawn salary of Rs.1,86,184/- p.m. Income tax returns as discussed above and Form-16 at Ex.P.38 reveals that the deceased had drawn salary of Rs.16,80,156/-p.a. from 1-7-2011 to 31-3-2012. This accident took place in the month of September 2012. Hence, based on Ex.P.33, this tribunal has come to the conclusion that at the time of accident, the deceased was drawing salary of Rs.1,89,184/-p.m. Ex.P.29 to P.32 salary slips reveals that a sum of Rs.42,971/-, Rs.40,705/-, Rs.40,705/- and Rs.41,018/- were deducted towards income tax and Rs.200/- towards professional tax from May 2012 to August 2012 27 MVC 425/2013 SCCH-16 respectively. Based on Ex.P.33, the deceased was drawing net salary of Rs.1,89,184/-p.m. and after deduction of P.T of Rs.200/-and income tax of Rs.42,971/-, which comes to Rs.1,46,013/-p.m.
37. The petitioners are wife, minor daughter and mother of the deceased. PW-1 in her cross-examination stated that she was also working as Software Engineer and drawing salary of Rs.3,00,000/-p.a. As per the ruling relied by the learned counsel for the petitioners reported in ILR 2014 KAR 5169 (A.Arun and another vs Smt.H.B.Pushpa and another) the Hon'ble High Court of Karnataka held that while computing loss of dependency need not necessarily be confined to money payments. It also includes goods and services. The loss of services of the deceased as wife and mother would also require to be sounded in terms of money. Hence, the Hon'ble High Court of Karnataka has come to the conclusion that even though the husband in the said case was also considered dependant.
38. In this case, as I have already discussed above, salary of the petitioner No.1 is very meager as she was drawing Rs.25,000/-p.m.,when compared to the salary of the 28 MVC 425/2013 SCCH-16 deceased. The deceased had left minor daughter and mother as LRs apart from petitioner No.1. Hence, keeping in position of the above said proposition of law, in this case, even though, petitioner No.1 was working, she has to be considered as dependant of the deceased. Hence, 1/3rd is to be deducted towards personal expenses of the deceased.
39. As per Ex.P.10-driving licence smart card and Ex.P.10(a) driving licence extract of the deceased reveals that he was born on 18-12-1965. Post-mortem and inquest report at Ex.P.4 and P.5 reveals that the cause of death was due to head injury. This accident took place during 6-9-2012. As on the date of accident, the deceased was aged about 47years.
40. It is to be noted that as per the ruling of 2013 ACJ 1403 (Rajesh and others vs Rajbir Singh), the Hon'ble Apex Court discussed the ruling and Sarala Verma's case and held that the future prospectus can be taken into account, even where a person is not having any permanent job. Therefore, even today, Rajesh and Sarala Verma's case holds good. Therefore, the Hon'ble Apex Court in the ruling reported in 2013 ACJ 1403 (Rajesh and others vs Rajbir Singh and others) held that the future prospects should be 29 MVC 425/2013 SCCH-16 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 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.
41. 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.
42. In this case, the deceased was aged about 47 years as on the date of accident. Hence, as per the above said rulings, 30% of actual income is to be taken into account as 30 MVC 425/2013 SCCH-16 future prospectus. In this case there are three dependents. Hence, 1/3rd has to be deducted towards his personal expenses. Hence, the following calculations:
(i) Salary income arrived at ...Rs.1,46.013/-p.m. (Net salary of Rs.1,89,184.After deducting P.T of Rs.200/-and income tax of Rs.42,971/-=1,46,013/)
(ii)30% of (i) above said income to be added as future prospectus ...Rs.43,804+1,46,013/-
...Rs.1,89.816/-p.m. Less 1/3 deducted as personal expenses of the deceased. ...Rs.1,89,816-63,272/-
... Rs.1,26,545x12x13= Compensation after multiplier of 13 is applied ... Rs.1,97,41,020/-
The petitioners are entitled for the compensation of Rs. 1,97,41,020/-under the head loss of dependency.
43. 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 31 MVC 425/2013 SCCH-16 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, the petitioner No.1 has lost company of the deceased. Hence, a sum of Rs.1,00,000/- is awarded under the head loss of consortium. If the deceased had been alive, he had contributed his savings to the petitioners' maintenance, due to the sudden demise of the deceased, the petitioners have lost the estate of the deceased. Hence, a sum of Rs.75,000/- is awarded under head loss of estate. The petitioners have lost the love and affection of the deceased. Hence, a sum of Rs.1,00,000/- is awarded under head loss of love and affection. There are no documents to show that, the actual expenses incurred for funeral and other ceremonies. Hence, a sum of Rs.40,000/- is awarded under head funeral expenses.
44. The details of compensation I propose to award are as under:
Sl.No. Head of Compensation Amount/Rs
1. Loss of dependency 1,97,41,020-00
2. Loss of consortium 1,00,000-00
3. Loss of estate 75,000-00
4. Loss of love and affection 1,00,000-00 32 MVC 425/2013 SCCH-16
5. Funeral expenses 40,000-00 Total 2,00,56,020-00 In all the Petitioners are entitled for compensation of Rs. 2,00,56,020/-.
Interest:
45. 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 interest at 9% cannot said to be on the higher side.33 MVC 425/2013
SCCH-16 Accordingly, the Petitioners are entitled to interest at the rate of 9% p.a.
46. PW-3 has produced Ex.P.40 Claim settlement of the deceased by the New India Assurance Company Ltd., dt.19- 12-2013 through which, the company has disbursed a sum of Rs.25,00.000/- to the petitioners and the said premium was paid by their company.
47. I have perused Ex.P.40, which reveals that on the date of death of Srinivas, company had paid Rs.25,00,000/- to the petitioners. Now the question is, whether the said Rs.25,00,000/- is to be deducted , out of the compensation amount awarded to the petitioners. In this regard, the learned counsel for the respondent No.2 relied on the ruling reported in 2008 ACJ 2372(Bhakra Beas Management Board vs Kanta Aggarwal and others) , 2011 ACJ 161 (Shridevi and others vs S.Sarohini and another), in (1996) 4 SCC 255( A.Trehan vs Associated Electrical Agencies and another) and in unreported judgment in MFA.11587/2006 (The oriental Ins.Co.Ltd., and V.Basavaraju) . In all these judgments, the Hon'ble Apex Court as well as the Hon'ble 34 MVC 425/2013 SCCH-16 High Court of Karnataka relying on the ruling reported in AIR 1998 SC3191(Halen C Rebello vs Maharastra State Road Transport Corporation) held that the personal accident benefits have to be deducted from the compensation.
48. Per contra, the learned counsel for the petitioners relied upon the ruling reported in 2013 ACJ 1143(Neelam Singh and others vs (Dolphin International and others) , (2013) 7 SCC 476(Vimal Kanwar and others vs Kishore Dan and others) and ILR 2014 KAR 5169( A.Arun and Another vs Smt.H.B.Pushpa and another) In these citations, the Hon'ble Apex Court as well as the Hon'ble High Court of Karnataka held that ex-gratia payment and personal accident benefits have nothing to do with the compensation to be awarded under the provision of Motor Vehicles Act. The Hon'ble Apex Court come to the said conclusion by referring to the said decision of Halen C Rebello's case. Hence, even though, in this case, petitioners have received Rs.25,00,000/- as ex-gratia amount, but, as per the above said citations, the same cannot be considered as deduction. Hence, ex-gratia of Rs.25,00,000/- received by the petitioners is not deductable amount from the total compensation.
35 MVC 425/2013
SCCH-16 Liability:
49. The respondent No.2 has taken up the contention that at the time of accident, driver of offending vehicle did not possessed valid and effective DL and the vehicle had no valid permit and FC etc. In this regard, respondent No.2 examined RW-1 and RW-2. Ex.R.2 and R.4 are copies of permit and Ex.R.3 is the copy of DL extract. I have perused these documents. As per Ex.R.1-policy was in force at the time of accident. DL extract at Ex.R.3 reveals that the driver of offending vehicle had valid and effective DL to drive heavy vehicle from 13-7-2010, heavy passenger motor vehicle and heavy goods motor vehicle. Autorickshaw TV and Light Motor Vehicle from 30-5-2003. The old non transport vehicle licence validity from30-5-2003 to 29-5-2023 and Old TV validity from 24-2-2009 to 23-2-2012. As per Ex.R.3, as on the date of accident, driver of offending vehicle had valid and effective DL to drive the heavy goods motor vehicles. Ex.R.2 and R.4 are permit reveals that the offending vehicle was having valid permit to ply all fit road in Kerala State and national/State highways of the states mentioned in authorization except 36 MVC 425/2013 SCCH-16 those prohibited by any law in force. The validity of the permit was from 3-3-2011 to 2-3-2016.
50. The learned counsel for the respondent No.2 during the course of arguments submitted that at the time of accident, permit was not valid and separate tax was not paid by the respondent No.1. As per the evidence of RW-2, the accident took place at a distance of 7-8kms from Kerala border. RW-2 stated that the state permit can be obtained in the nearest RTO after entering into the particular state. RW-2 is an investigating Officer. He has not competent to speak regarding the validity or otherwise of the permit. The proper person would the RTO of the concerned office/area. The respondents have not examined the said RTO. However, Ex.R.2 and R.4 reveals that the offending vehicle was permitted to ply on all the roads in Kerala State and national/State highways of the states mentioned in authorization except those prohibited by any law in force. The respondents have not produced any documents to show that at the time of accident, permit was not in force. The respondents have not placed any materials before this 37 MVC 425/2013 SCCH-16 Tribunal to show that the spot oif accident is covered under prohibited area, for which the permit is not applicable.
51. The learned counsel for the respondent No.2 relied on the ruling reported in ILR 2012 KAR 6065 (B.T.Venkatesh vs Sri Jagadeesh Kumar and others)2004(ACJ 2094( National Ins.Co.Ltd., vs Challa Bharathamma and others) wherein, The Hon'ble Apex Court as well as the Hon'ble High Court of Karnataka held that where there was no valid permit, insurance company is not liable. But, in this case, as I have discussed above, as per Ex.R.2 and R.4, offending vehicle had valid permit at the time of accident. Hence, the insurance company cannot disown its liability on the ground that at the time of accident, offending vehicle had no valid permit.
52. The respondent No.2 has admitted that, as on the date of accident, the policy in respect of the lorry bearing No.KL.55/H.1264 was in force. Therefore, the respondent No.1 and 2 are jointly and severally liable to pay compensation to the petitioners with interest at 9% p.a. However, primary liability is fixed on respondent No.2 who is 38 MVC 425/2013 SCCH-16 the insurer of lorry bearing No.KL.55/H.1264. Accordingly, issue No.3 is answered partly in the affirmative.
ISSUE No.4:-
53. In view of my above findings, the petition is deserves to be partly allowed. Hence, I proceed to pass the following:
ORDER The petition filed by the petitioners is allowed in part.
The petitioners are entitled for compensation of Rs.2,00,56,020/- (Two crore fifty six thousand twenty only) with interest at the rate of 9% per annum from the date of petition till realisation.
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 as follows:-
Petitioner No.1 - wife 50% Petitioner No.2 - daughter 25% Petitioner No.3 - Mother 25% Out of the compensation amount so apportioned in favour of the petitioner Nos.1 and 3, 50% is ordered to be invested in the name of petitioner Nos.1 and 3 in any of the nationalized or 39 MVC 425/2013 SCCH-16 scheduled bank of their choice for a period of five years. Remaining amount with entire interest is ordered to be released to them, through A/c payee cheques on proper identification and verification.
Out of the compensation amount so apportioned in favour of the petitioner No.2 being the minor. Entire compensation amount shall be deposited in the name of the minor petitioner as FD in any nationalized bank of the choice 1st petitioner till minor petitioner attains majority.
Advocate's fee is fixed at Rs.1,000/-. Draw an award accordingly.
(Dictated to the stenographer, transcribed by her, corrected and then pronounced in the open court this the 1st day of September 2016) (SATISH.J.BALI) MEMBER:MACT, BANGALORE.
ANNEXURE List of the witnesses examined on behalf of Petitioners:
PW1 Smt. Sugandhi A., PW2 Sri Anshad PW3 Smt. Sandhya S. Nair
List of the documents exhibited on behalf of Petitioners:
Ex.P1 True copy of FIR with complaint 40 MVC 425/2013 SCCH-16 Ex.P2 True copy of Mahazar Ex.P3 True copy of Rough sketch Ex.P4 True copy of Inquest mahazar Ex.P5 True copy of Post mortem certificate Ex.P6 True copy of IMV report Ex.P7 True copy of Charge sheet Ex.P8 Notarised attested true copy of Ration card Ex.P9 Notarised attested true copy of Election ID card Ex.P10 Driving licence smart card Ex.P10(a) Driving licence extract Ex.P11 to 4 Marks cards Ex.P14 Ex.P15 Appointment order Ex.P16 Agreement dated 01-08-2007 Ex.P17 Another appointment order letter dated 19-04- 2011 Ex.P18 Form 16 for the assessment year 2008-09 Ex.P19 Form No.12BA for the financial year 2008-09 Ex.P20 Form No.16 for the assessment year 2009-10 Ex.P21 E-IT return for the year 2010-11 Ex.P22 Form 16 for the assessment year 2010-11 Ex.P23 Form No.12BA for the financial year 2009-10 Ex.P24 E-IT return for the year 2011-12 Ex.P25 E-IT return for the year 2012-13 Ex.P26 Form No.16 for the assessment year 2012-13 Ex.P27 Form No.16 for the assessment year 2013-14 Ex.P28 E-IT return for the year 2013-14 Ex.P29 Pay slip for the month of May 2012 Ex.P30 Pay slip for the month of June 2012 41 MVC 425/2013 SCCH-16 Ex.P31 Pay slip for the month of July 2012 Ex.P32 Pay slip for the month of August 2012 Ex.P33 Certificate dated 19-09-2013 Ex.P34 Copy of full and final settlement dated 06-09- 2012 for the month of September 2012 Ex.P35 Bank statement Ex.P36 True copy of Driving licence Ex.P37 Appointment letter office copy Ex.P38 Form No.16 of the year 2012-13 and 2013-14 Ex.P39 Attendance register extract for the period January 2012 to September Ex.P40 True copy of Claim Settlement of deceased by New India Assurance Company
List of the witnesses examined on behalf of Respondents:
RW1 Sri N. Anjaneya Sarma RW2 Sri Chennesh RW3 Sri K.S. Ravindra
List of the documents marked on behalf of Respondents:
Ex.R1 True copy of Policy
Ex.R2 Permit
Ex.R3 Authenticated copy of driving licence
Ex.R4 True copy of Permit
(SATISH.J.BALI),
MEMBER, MACT BANGALORE.
42 MVC 425/2013
SCCH-16
43 MVC 425/2013
SCCH-16
Judgment pronounced in open court vide separate:
ORDER The petition filed by the petitioners is allowed in part.
The petitioners are entitled for compensation of Rs.2,00,56,020/- (Two crore fifty six thousand twenty only) with interest at the rate of 9% per annum from the date of petition till realisation.
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 as follows:-
Petitioner No.1 - wife 50% Petitioner No.2 - daughter 25% Petitioner No.3 - Mother 25% 44 MVC 425/2013 SCCH-16 Out of the compensation amount so apportioned in favour of the petitioner Nos.1 and 3, 50% is ordered to be invested in the name of petitioner Nos.1 and 3 in any of the nationalized or scheduled bank of their choice for a period of five years. Remaining amount with entire interest is ordered to be released to them, through A/c payee cheques on proper identification and verification.
Out of the compensation amount so apportioned in favour of the petitioner No.2 being the minor. Entire compensation amount shall be deposited in the name of the minor petitioner as FD in any nationalized bank of the choice 1st petitioner till minor petitioner attains majority.
Advocate's fee is fixed at Rs.1,000/-.
Draw an award accordingly.
(SATISH.J.BALI), MEMBER, MACT BANGALORE.
45 MVC 425/2013
SCCH-16 AWARD SCCH NO.16 BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL MVC No.425/2013 **** PETITIONERS: 1. Smt. Sugandhi A., Aged about 44 years, W/o Late Srinivas S. Balaji @ S.S. Balaji,
2. Kum. Sowmiya A., Aged about 16 years, D/o Late Srinivas S. Balaji @ S.S. Balaji,
3. Smt. Rajalakshmi, Aged about 66 years, W/o Late Subramanyam A., 2nd petitioner being minor Reptd. By her mother and natural guardian Smt. Sugandhi A., 1st petitioner herein All are R/at No.B-III 005, White House, 15th Cross, 6th Main, R.T. Nagar, Bengaluru - 560 032.
(Sri K. Suresh, Advocate) Vs. RESPONDENTS: 1. Sri Alavi, major, S/o Muhammad Haji, Manchincheri House, Ulanam Post, Palathingal, Parappanangadi, Malappuram, Kerala - 676 303.
46 MVC 425/2013
SCCH-16
2. The Regional Manager, United India Insurance Co. Ltd., Motor T.P. Claims Department, Regional Office, 5th & 6th Floor, Krishi Bhavan, Nrupathunga road, Bengaluru - 560 001.
(Sri Janardhan Reddy, Advocate) WHEREAS, this petition filed on by the petitioner above named under Section 166 of the M.V.Act, 1988, praying for compensation of Rs.
for the injuries.......................................................... sustained by the petitioner/death in a motor accident caused by vehicle bearing No. WHEREAS, this claim petition coming up before Sri.Satish.J.Bali, MEMBER,MACT, Bangalore, in the presence of Sri .................Advocate for petitioner/s and of Shri....................Advocate for respondent.
ORDER The petition filed by the petitioners is allowed in part. The petitioners are entitled for compensation of Rs.2,00,56,020/- (Two crore fifty six thousand twenty only) with interest at the rate of 9% per annum from the date of petition till realisation.
47 MVC 425/2013
SCCH-16 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 as follows:-
Petitioner No.1 - wife 50%
Petitioner No.2 - daughter 25%
Petitioner No.3 - Mother 25%
Out of the compensation amount so apportioned in favour of the petitioner Nos.1 and 3, 50% is ordered to be invested in the name of petitioner Nos.1 and 3 in any of the nationalized or scheduled bank of their choice for a period of five years. Remaining amount with entire interest is ordered to be released to them, through A/c payee cheques on proper identification and verification.
Out of the compensation amount so apportioned in favour of the petitioner No.2 being the minor. Entire compensation amount shall be deposited in the name of the minor petitioner as FD in any nationalized bank of the choice 1st petitioner till minor petitioner attains majority.
Advocate's fee is fixed at Rs.1,000/-.
Given under my hand and seal of the Court this the day of................ 2016 MEMBER:MACT, BANGALORE.
48 MVC 425/2013 SCCH-16 By the By the Petitioners Respondent Court fee paid on petition Court fee paid on Powers Court fee paid on I.A. Process Pleaders Fee: Total Decree Drafted by: Scrutinised by: Decree Clerk: Sheristedar: MEMBER:MACT Bangalore 49 MVC 425/2013 SCCH-16