Bangalore District Court
Ms.Joyeeta Bose vs Sri.Venkateshan.V on 24 March, 2018
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
Court of Small Causes, Bangalore,
DATED THIS THE 24th MARCH, 2018
PRESENT: SMT.GOMATI RAGHAVENDRA
LL.M, D.I.P.R, D.C.L
VII Addl.SCJ & XXXII ACMM
Member, MACT-3, Bengaluru.
M.V.C. No.2620/2016
Petitioners: 01. Ms.Joyeeta Bose,
Wife of Sri.Kaushik Bose,
Aged about 45 years,
02. Raunak Basu,
Son of Sri.Kaushik Bose,
Aged about 16 years,
03. Ms.Ritwika Basu,
Daughter of Sri.Kaushik Bose,
Aged about 14 years,
(2) & (3) being minor Represented by
mother and natural guardian,
Ms.Joyeeta Bose.
At present all are residing at
404 B, Jain Heights,
31/12, Hennur Main Road,
Kalyan Nagar,
Bengaluru.
Permanent residence at
Block H3, Tower 2,
Flat 3C, South City Garden,
61, B.L.Saha Road,
Kolkata - 700 053.
2 MVC 2620/2016
04. Smt.Dipali Bose,
Wife of Sri.Sunit Kumar Bose,
Aged about 72 years,
residing at No.FD 102, FD Block,
Salt Lake City, Sector 3,
Kolkata,
West Bengal-700 106
(Mother of the deceased)
(By Sri.C.G.Gopalaswamy Advocate)
-Vs-
Respondents: 01. Sri.Venkateshan.V.,
Son of Sri.R.Velumurugan,
Age not known to the petitioners,
No.140/B, 1st Main, 2nd Phase,
Rajajinagar,
Manjunathanagar,
Bengaluru 560 010.
(By Sri.L.Subramani, Advocate)
02. Sri.Nanjegowda,
Son of Sri.Nagaraju,
Age not known to the petitioners,
Hurulugurki Village,
Venkatagiri, Kote Post,
Devanahalli Taluk,
Bengaluru Rural District.
(By Sri.H.K.Ramachandra, Advocate)
03. Bajaj Allianz General Insurance
Co., Ltd.,
having its Head Office at
GE Plaza, Airport Road,
Yerwada,
Pune-411006,
3 MVC 2620/2016
and Branch Office at
Bangalore Golden Heights,
4th Floor, No.1/2,
59th 'C' Cross, 4th 'M' Block,
Rajajinagar,
Bangalore-560 010.
Insurer of the vehicle bearing
No.KA-03-AC-4672
(By Sri.Ravi S.Samprathi, Advocate)
04. United India Insurance Company,
having its Head office at No.24,
Whites Road,
Chennai-600 014,
and Branch Office at
No.40/3, Geetha Mansion,
K.G.Road,
Bangalore -560 009.
Insurer of the vehicle bearing
No.KA-43-3038
(By Sri.S.Krishna Kishore, Advocate)
********
JUDGMENT
Petitioners have filed present petition U/Sec 166 of the Motor Vehicles Act, 1989, seeking compensation of Rs.7,00,00,000-00 (Rupees Seven crores only) on account of death of Sri.Kaushik Bose S/o Sunit Kumar Bose in the alleged Road Traffic Accident.
4 MVC 2620/201602. The case of the petitioners in brief is as under:-
That on 22-02-2016 deceased Sri.Kaushik Bose was travelling in Meru Cab Car bearing reg. No. KA-03-AC-4672 from his place of residence to Kempegwoda International Airport, Devanahalli, Bengaluru, owned by respondent No.1 and being driven by one Sri.A.Anil Kumar. Respondent No.3 is insured of said vehicle. Said vehicle was being driven by its driver in a rash and negligent manner and hit backside portion of the Lorry bearing reg. No. KA-43-3038 owned by respondent No.2 insured with respondent No.4 which was parked towards Airport with negligent manner without following precautionary measures, as a result Kaushik Bose suffered multiple injuries on head and other parts of the body and driver of the Car Anil Kumar sustained injuries on his neck. Both were admitted to Apurva Mother and Child hospital, Yelahanka Old Town, Bengaluru, consequently Kaushik Bose died on 22-02-2016 at 10.30 a.m. in the said hospital. The jurisdictional Yelahanka Traffic Police have registered a case in their Cr. No.35/2016 for the offences punishable U/Sec 279, 337 and 304(A) of IPC. Postmortem was conducted in M.S. Ramaiah Medical College and hospital, Bengaluru.5 MVC 2620/2016
03. Deceased was sole bread winner of the family. He was employed in WIPRO GE Healthcare Private Limited and was drawing an average monthly salary of Rs.3,92,625-00. He had high future holding good post and position in the said company and due to his death, much loss has been caused to the family. Petitioners are yet to come out of the shock due to death of deceased. Petitioners have incurred Rs.50,000-00 towards funeral expenses. Hence, present petition.
04. Interalia, all the respondents put their appearance through their respective counsels. Respondent No.1 resisted the petition by filing written statement wherein he has stated that his driver picked up the traveler and going with slow speed, when they reached at Jakkur Aerodrum, BB Road, on Flyover, Yelahanka, respondent No.2 Lorry suddenly put the brake in front of respondent No.1 Car, respondent No.1 driver tried to avoid the accident, but unexpectedly the accident took place at Flyover. This respondent has denied age, avocation and income of the deceased.
05. Respondent No.2 in his written statement has stated that his driver i.e., driver of Lorry bearing reg. No.KA-43-3038 had already stationed lorry on extreme left side on BB Road on Flyover, near Jakkur Aerodrum, due to burst of lorry tyre. The National 6 MVC 2620/2016 Highway Authority i.e., Navayuga Authority have tied caution danger tape around said lorry, respondent No.1's offending vehicle Meru Cab bearing reg. No. KA-03-AC-4672 being driven by its driver came in a rash and negligent manner, endanger to human life, without observing traffic rules and regulations and dashed against stationed lorry and accident in question is not on the negligent part of respondent No.2's lorry driver, unnecessarily R.C. owner and respondent No.2 are impleaded in the claim petition. This respondent admits his ownership over the lorry in question which was insured with respondent No.4 valid from 29-12-2015 to 28-12-2016 and policy was in force as on the date of alleged accident and his driver was possessing effective driving licence.
06. Respondent No.3 - Bajaj Allianz Insurance Company, the insurer of Car in question in its written statement stated that driver of the Car was not holding valid and effective driving licence at the time of accident and as such respondent No.1 handed over possession of the vehicle to the said driver and has contravened the terms and conditions of the policy and provisions of M.V. Act. It has further stated that Car in question did not hold valid permit and route permit as on the date of accident. It admits issuance of policy of insurance in favour of respondent No.1 in respect of 7 MVC 2620/2016 Car bearing reg. No.KA-03-AC-4672 and its liability if any is subject to terms and conditions of the policy. This respondent deny very occurrence of the accident and involvement of the Car and that at the time of accident the Car was being driven in a reasonable speed and careful manner and there was no negligence on the part of driver of the Car. It has further stated that Lorry bearing reg. No.KA-43-3038 was stationed on the tarred portion of said road in a dangerous position and it was stationed without switching on parking lights and as such accident occurred due to negligence on the part of the lorry itself. This respondent denied age, avocation and income of the deceased and further stated that compensation claimed by the petitioners is highly excessive and exaggerated.
06. Respondent No.4 - United India Insurance Company, the insurer of Lorry in question wherein it admits issuance of policy of insurance in favour of respondent No.2 in respect of Lorry bearing reg. No.KA-43-3038 and its validity as on the date of accident, but its liability if any is subject to terms and conditions of the policy. It has further pleaded that accident occurred on account of rash and negligent driving of driver of Meru Cab Car who was proceeding in a careless manner and dashed to rear portion of 8 MVC 2620/2016 lorry parked on the extreme left side of the road with clear indication due to tyre burst, eventhough there was plenty of space on the middle and right side of the said road, driver of Car moving on the left side of the road and dashed to hind portion of the lorry. It has further pleaded that Navayuga Highway Patrolling men fixed caution danger stop tape to the lorry since it was parked on the extreme left side of the road due to tyre burst. But the driver could not control the vehicle and dashed to the rear side of the lorry without observing the red tape attached to the lorry. It has further pleaded that the compensation claimed by the petitioners is highly excessive and exorbitant. It has denied the age, avocation and income of the deceased as alleged in the petition. Thus denying rest of the petition contents, these respondents have sought for dismissal of petition.
07. Based on the aforesaid rival contentions and materials available on record, the following Issues have been framed: -
ISSUES
1. Whether the petitioners prove that they are the LRs/dependants of deceased Sri.Kaushik Bose?
2. Whether the petitioners prove that deceased Sri.Kaushik Bose was died in RTA arising out of the accident alleged 9 MVC 2620/2016 to have been taken place on 22-02-2016 at about 4.30 a.m., near Jakkur Aero Drum, B.B.Road, on Flyover, Yelahanka, Bengaluru, due to the rash and negligent driving of the driver of Car bearing No. KA-03-AC-4672 and negligent parking of the Lorry bearing No.KA-43-3038 as alleged in the petition?
3. Whether the petitioners are entitled for compensation? If so, what amount & from whom?
4. What order or award?
08. In support of petition contents, petitioner No.1 examined herself as P.W.1 and also examined one more witness/HR Manager as P.W.2 and they got marked documents at Ex.P.1 to Ex.P.40. Respondents have examined totally five witnesses as R.W.1 to R.W.5. They got marked documents at Ex.R.1 to Ex.R.5.
09. Heard the arguments, perused materials available on record. Written arguments filed by the learned counsels for petitioners and respondent Nos.3 and 4 is taken into consideration.
10. My findings on the aforesaid Issues are as under:-
Issue Nos.1 & 2 In the Affirmative
10 MVC 2620/2016
Issue No.3 Partly in the Affirmative &
as per final order
Issue No.4 As per final order
for the following:
REASONS
11. Issue Nos.1 & 2:- As these Issues are inter- related to each other, hence in order to avoid the repetition of facts, these Issues are taken up together for common discussion.
12. As per the case of the petitioners, they are wife, children and mother of deceased Kaushik Bose, who met with an accident and succumbed to the injuries on 22-02-2016. In order to substantiate the relationship as contended, petitioner No.1 stepped into the witness box and led evidence as P.W.1, whose affidavit evidence is nothing but replica of petition averments. In addition to her ocular evidence, P.W.1 has relied upon documents such as Marriage certificate, Birth certificates of petitioner Nos.2 and 3, Passport of herself and petitioner Nos.2 and 3, Pan card of herself and petitioner Nos.2 and 3 and Death certificate of deceased marked respectively at Ex.P.1 to Ex.P.9 and Ex.P.13. Perusal of Ex.P.1, husband name of petitioner No.1 is mentioned as Kaushik Bose, deceased herein. Perusal of Ex.P.2 and Ex.P.3 it 11 MVC 2620/2016 discloses the parents name of petitioner Nos.2 and 3 as Joyeeta Bose and Kaushik Bose. Perusal of Passport of petitioner No.1 at Ex.P.4, it discloses her husband name as Kaushik Bose, the deceased herein, so also Passport of petitioner Nos.2 and 3 at Ex.P.5 and Ex.P.6, it discloses their parents name as Kaushik Bose and Joyeeta Bose. Pan card of petitioner Nos.2 and 3 at Ex.P.8 and Ex.P.9 discloses their father name as Kaushik Bose. Perusal of Ex.P.13 Death certificate of deceased discloses his father name as Sunit Kumar Bose and mother name as Dipali Bose, the petitioner No.4 herein and he died on 22-02-2016. The aforesaid documentary evidence coupled with ocular evidence of P.W.1 establish the fact that petitioners are none other than wife, children and mother of deceased Kaushik Bose.
13. It is further case of the petitioners that they being wife, children and mother of the deceased Kaushik Bose were financial dependants on the income of the deceased at the time of accident. There is no contra material produced by the respondents in order to disprove the same. Hence, petitioner Nos.1 to 4 are treated as dependants on the income of the deceased at the time of accident.
14. It is further contention of the petitioners that, on the relevant date, time and place while 12 MVC 2620/2016 deceased was travelling Meru Cab Car bearing reg. No. KA-03-AC-4672, the driver of the said car drove it in a rash and negligent manner and hit the backside portion of Lorry bearing reg. No.KA-43-3038 owned by respondent No.2 which was stationed negligently without following precautionary measures, as a result deceased suffered multiple injuries on head and other parts of the body. In order to substantiate these contents, P.W.1 has relied upon documents such as Complaint, FIR, Witness statements, Police intimation, Inquest report, spot Sketch, spot Mahazar, seizer Mahazar, IMV report, PM report and Charge sheet marked at Ex.P.20 to Ex.P.31 respectively.
15. Perusal of Complaint dt:22-02-2016 at Ex.P.20, it came to be lodged by Police Constable by name Kanta, PC No.7145, stating that he was deputed for duty on 21-02-2016 from 10.00 p.m. onwards till next day morning around 7.30 a.m. and he received the message about the accident and he rushed to the spot immediately and Lorry bearing reg. No. KA-43-3038 was stationed and behind which the Meru Cab Car bearing reg. No.KA-03-AC-4672 was stationed by hitting the lorry and the Car was completely damaged and he came to know that at about 4.30 a.m. on 22-02-2016 the driver of the Car drove it in a rash and negligent manner and dashed against the 13 MVC 2620/2016 stationed lorry which was parked negligently without any precautionary measures and indicators, due to which the inmate of the car sustained grievous injuries and was shifted to the hospital by the public. Based on the complaint, FIR came to be registered by Yelahanka Traffic Police as per Ex.P.21 against drivers of both Car and Lorry for the offences punishable U/Sec 279, 337 of IPC and Sec.134(a) & (b) r/w Sec 187 of IMV Act. The requisition sent by concerned I.O. to the Hon'ble Court to insert Sec.304(A) of IPC in view of death of deceased who was travelling in Meru Cab Car marked at Ex.P.22(a). The statement of witnesses is marked at Ex.P.22(b) to Ex.P.22(g). The Death memo issued by Apurva hospital discloses the death of Kaushik Bose due to alleged history of RTA marked at Ex.P.23. Inquest report at Ex.P.24 pertaining to deceased Kaushik Bose as well as his nature of death. Spot Sketch, spot Mahazar and Seizer Mahazar marked respectively at Ex.P.25 to Ex.P.27 corroborates Ex.P.20 and Ex.P.21. IMV report at Ex.P.28 discloses damages found on both the vehicles involved in the accident and the IMV Inspector has opined that accident was caused not due to mechanical defects. P.M. report marked at Ex.P.29 discloses cause of death due to head injury sustained. After investigation of the case, the I.O has filed Charge sheet as per 14 MVC 2620/2016 Ex.P.31 against drivers of Meru Cab Car bearing reg. No.KA-03-AC-4672 and Lorry bearing reg. No. KA-43-3038 by name Anil Kumar S/o Annaiah and Anand Kumar S/o L.N.Chikkabasappa, for the offences punishable U/Sec 279, 338 and 304(A) of IPC and Sec.134(a) & (b) r/w Sec 187 of IMV Act.
16. In the case on hand, it is not in dispute by the respondents that in the accident occurred on 22-02-2016 the deceased died. Respondent Nos.1 and 3 are R.C. owner and insurer of the Car in question and so also respondent Nos.2 and 4 are R.C. owner and insurer of Lorry in question. Respondent Nos.1 and 3 have specifically contended in their respective written statements that the Car driver was driving the Car slowly, cautiously, by observing traffic rules and regulations and the accident occurred since the Lorry was stationed on the tarred portion of the road in a dangerous position and which was stationed without switching on parking lights and as such accident was occurred on account of wrongful act on the part of driver of the Lorry.
17. On the otherhand, respondent Nos.2 and 4, the R.C. owner and insurer of the Lorry in question denied rash and negligent driving on the part of lorry driver and they have specifically contended that lorry was stationed on the extreme left side due to tyre burst 15 MVC 2620/2016 and National Highway Authority i.e., Navayuga Highway have tied caution danger tape around the said lorry and respondent No.1's offending vehicle i.e., Meru Cab Car driver himself came in a rash and negligent manner, endanger to human life, without observing traffic rules and regulations and dashed against stationed lorry and there is no negligence on the part of respondent No.2 lorry driver.
18. In order to substantiate such contents, the driver of the Car in question by name Sri.Anil Kumar examined himself as R.W.1. He was subjected to cross- examination by respondent No.3 wherein he has stated that accident occurred at 4.30 a.m. and it was dark night and there were no street lights. He has further stated that there is no provision for halting or stopping the vehicles on flyover. Lorry bearing reg. No. KA-43-3038 was stationed at the spot at the left side without any signal or parking lights and lorry persons came to the spot after the accident and there was no red flag and if there was no lorry at the spot, the accident could not have occurred and the accident occurred due to negligence stationing of the lorry without any signal.
19. This witness has been cross-examined by the counsel for petitioners wherein he has stated that accident road is 6 lanes road and 3 lanes on each side 16 MVC 2620/2016 i.e., slow moving lane, cruising lane i.e., moving in same speed, one more is overtaking lane and the lorry was parked at the left side of the road i.e., on slow moving lane. He has been cross-examined by the counsel for respondent No.4 wherein he has stated that the Car in question was attached to Meru Cab as an Airport taxi and that after picking up the passengers from Airport to Hennur at about 3.00 to 3.30 a.m., he received message at about 4.00 a.m. and picked up the passenger for Airport i.e., deceased and accordingly as per Ex.P.11 he reached the passenger's residence at about 4.20 a.m. He started driving the cab by picking up deceased at around 4.25 a.m. and he took around 30 minutes to reach accident spot and on that day he had only two trips and there was a gap of 3 to 4 hours in between the trips. He has further stated that there was no talk held between himself and passenger about flight timing or any talks held between them about reaching the destination i.e., Airport in a short span. He has denied the suggestion that he had been driving without rest throughout night on the date of accident and as such due to short of rest and sleep, he drove the car in a reckless manner and thereby accident caused due to his own wrongful act. He has further denied the suggestion that Highway Patrolling Authority by name Navayug has put parking 17 MVC 2620/2016 signs board like crossed stripe lines in order to alert other vehicles to show about stationing of the lorry. Witness volunteered that no such sign boards nor alert stickers were put behind the lorry. He has further stated that there was no street lights at that time and it was dark at the time of accident.
20. The R.C. owner of the Lorry in question is examined as R.W.2, who in his affidavit evidence has reiterated similar to his written statement averments. In addition to his ocular evidence, R.W.2 has produced Statement of lorry driver and spot Sketch marked respectively at Ex.R.1 and Ex.R.2. Ex.R.1 is the statement given by driver of lorry by name Anand Kumar as accused No.2 stating that he has taken his lorry at the left side of the road and Navayuga Authority have put precautionary measures like barricade and while he was changing the burst tyres accident occurred on account of rash and negligent driving of the driver of the Car in question. Spot Sketch is marked at Ex.R.2. This witness has been cross-examined by the counsel for respondent No.3 wherein he has stated that he was not in the spot of accident on that day and lorry driver and cleaner informed him about stationing of the lorry at the spot at about 4.00 a.m. on the date of accident and he has not informed the Police about stationing of lorry in 18 MVC 2620/2016 view of tyre burst at the spot. Admittedly this witness is not an eye-witness to the incident and as such any amount of evidence given by this witness is only hearsay evidence which does not come to his aid i.e., respondent No.2 or respondent No.4 either to prove his defence or to disprove the evidence of petitioner so far as this Issue is concerned.
21. The driver of the lorry by name Anand Kumar is examined as R.W.3, who in his affidavit evidence has corroborated the evidence of R.W.2 the owner of the lorry. In his evidence he has stated that accident in question has taken place due to wrongful act of driver of Car in question. This witness has been cross-examined by the counsel for respondent No.3 wherein he has admitted that charge sheet is also filed against him. A question was put to him stating that in the charge sheet there is a mentioning that without taking any precautionary measures, he parked the lorry at the spot, to which the witness has stated that charge sheet contents speaks so, but there was indication by way of sign board put around the lorry. He has admitted that vehicles shall not be parked on the flyover, but as the tyre got burst, therefore having left with no option, he parked the lorry at the spot. This witness is also cross-examined by the counsel for 19 MVC 2620/2016 petitioners, wherein he has admitted that in IMV report there is no mention of tyre burst.
22. Perusal of Ex.P.28 IMV report which discloses damages found on the lorry such as right tail lamp assembly, right rear wheel mud guard damaged. Admittedly there is no mention of tyre burst in IMV report.
23. This witness has been cross-examined by respondent No.4 i.e., his insurer, wherein he has stated that soon after tyre burst, he put four indicators i.e., two lights at front and two lights at rear side of the lorry. The question that arise before the tribunal is, if at all he had really put the lights, two lights at the front side and two lights at the rear side as an indication to the moving vehicles, the same could have been mentioned in the charge sheet or in any Police records, but absolutely there is no such mentioning in Police records nor there is any independent proof relied upon by either respondent No.2 or any witness to corroborate such version.
24. The Public Relation Officer in Navayuga Tollway Pvt. Ltd., Devanahalli, is examined as R.W.4 by respondent No.4 and this witness has produced Authorization letter at Ex.R.3. In his evidence he has stated that his toll gate authority received information through his helpline number about the accident on 20 MVC 2620/2016 22-02-2016 at around 4.00 a.m. that the vehicle has been brake down due to tyre puncture at Jakkur Flyover junction and as a safety precautionary measures their RPO (Road Patrolling Officer) team immediately came to the spot and tied caution tape around the vehicle i.e., lorry and the vehicle was on the left side of the road and thereafter one more information was received that yellow board Swift Dzire Car came and dashed against the parked vehicle. He has further stated in his examination-in-chief that at the spot no street lights are installed because the accident spot is driving zone and there is school nearby Jakkur Aerodrum and therefore street lights are not installed in view of agreement between Government and the National Highway Authority.
25. This witness has been cross-examined by the counsel for petitioners, wherein he has stated that he has no personal knowledge about the accident. He has further stated that there is a proof to say that they received the aforesaid information about the accident, but said proof is maintained only for 45 days and he has not produced any such proof. There is a log book maintained in this regard but he has not produced the same before the Court. They have taken photograph of the lorry tied with caution tape but he has not 21 MVC 2620/2016 produced any such photograph. He has also not produced log book.
26. This witness has also been cross-examined by the counsel for respondent No.3 wherein he discloses his nature of work as laizoning work i.e., Court, Police station etc., and on the date of accident he was on duty. There is 12 kms distance from the spot to base camp which received information. He has admitted that there is no light facility in the spot and whenever the any accident takes place they inform to the Police only in case of damage to properties. He has further stated that he has not personally seen the condition of the vehicle prior to the accident and after the accident, but based on photographs he can assess the vehicle condition, but he has not produced any such photographs before the Court. This witness admits that whenever vehicles are brake down on highway such vehicle to be towed from the place in order to release the traffic.
27. Admittedly he has not seen the accident, but this witness says that their RPO team received an information about the vehicle brake down due to tyre burst at the spot of accident and as such as safety precautionary measures they tied caution tape around the lorry. However, this witness in the course of his cross-examination by petitioners and also respondent 22 MVC 2620/2016 No.3 clearly deposes that there is no proof to say that they received information about the accident and that he has not produced the log book maintained in this regard, although he states that log book is maintained. He states that there are photographs to show that lorry was tied with caution tape but he has not produced any such photographs. If at all being National Highway Authority, their RPO team had really came to the spot soon after receiving the information about stationing of lorry due to tyre puncture and it tied with caution tape around the vehicle and there are photographs taken to that effect and also log book maintained in that regard, absolutely there was no difficulty for this witness to produce any of those documents to show that they have received such information from the lorry soon after it was stationed due to tyre burst and they have taken precautionary measures to alert the moving vehicles. But for the reasons best known to the witness as well as respondent No.2 and respondent No.4, this witness has not produced any single documents much less photographs to substantiate their case. It is material to note here itself that the Tollgate Authority that collects huge amount from vehicle drivers owe heavy responsibility of ensuring road safety and protection since it is question of life and property. Simply collecting toll fee and no responsibility is 23 MVC 2620/2016 unexpected from the authority, which amounts to violation of safety and protection norms by the National Highway Authority. As stated above, the driver of the lorry in his evidence has stated that soon after tyre burst to the lorry, he put indicator lights, two lights at the front and two lights on the rear portion of the lorry, but unfortunately this aspect has not been revealed by this witness R.W.4. Under such circumstances, it becomes very difficult to accept the evidence of R.W.4 that they received information with regard to tyre burst of the lorry and soon after that their RPO team rushed to the spot and took precautionary measures by tieding caution tape around the lorry.
28. The Administrative Officer working in respondent No.4 is examined as R.W.5, who in his affidavit evidence has reiterated similar to written statement averments. In addition to his ocular evidence, this witness has produced Ex.R.4 and Ex.R.5 such as Authorization letter and Policy of the Lorry. This witness has been cross-examined by counsel for both respondent No.3 and petitioners. However, the evidence of this witness does not come to the aid of respondent No.4 to disprove the records available which shows that accident occurred due to rash and 24 MVC 2620/2016 negligent driving of drivers of both vehicles, since this witness is not an eye-witness to the incident.
29. As stated above, both R.C. owners and their Insurance companies denied the rash and negligent driving on the part of their respective drivers and have accordingly led their evidence. However, perusal of charge sheet and other Police records, it is stated that present accident occurred on account of rash and negligent driving of the driver of Car as well as negligence of the driver of Lorry for having stationed it without any precautionary measures. Admittedly both vehicles owners and insurers have not examined any independent witnesses who have seen the accident in question. The driver of the Car Anil Kumar although examined as R.W.1, but no convincing materials produced before the tribunal to show that accident was occurred solely on the negligence act of driver of lorry who stationed the same without any precautionary measures. It is material to note that any careless or negligent act of driver who sits in responsible position may take away the lives of inmates of the vehicles and it becomes bounden duty of driver of the vehicle to be alert throughout the driving either in the day hours or in the night. So also whenever any vehicle is brake down due to puncture or tyre burst or any reason for that matter, the driver and R.C. owner of the said 25 MVC 2620/2016 vehicle shall take extra precautions to see that other passerby vehicles to be alerted about such stationing of the vehicle by showing the indicators like lights, barricade particularly in night or dark hours.
30. In the case on hand, although R.W.2 and R.W.3, the R.C. owner and driver of the lorry have stated that they put lights in front and back side of the lorry and also telephoned the National Highway Authority about stationing of the lorry, but absolutely no proof of evidence is produced by these witnesses to show that they took all required precautionary measures to alert the other moving vehicles. Even the Public Relation Officer in Navayuga Tollway although stated that there are log book maintained in this regard and also photographs taken to show that their Road Patrolling Officers took immediate precautionary measures by tieding caution tapes around the lorry, but for the reasons best known to him he has not made any endeavour to produce those minimum documents. Under such circumstances, it becomes difficult to accept the contention of drivers and R.C. owners of both vehicles that accident in question has not taken place on account of rash and negligent driving of their respective drivers. Hence, the tribunal is of the considered opinion that the accident has occurred due to actionable negligence of drivers of both 26 MVC 2620/2016 vehicles in question equally. Hence Issue Nos.1 and 2 are answered in the affirmative.
Issue No.3:-
Loss of dependency:-
31. While answering previous Issues, the tribunal has held that petitioner Nos.1 to 4 being wife, children and mother are considered as financial dependants on the income of the deceased at the time of accident and they are entitled for compensation under the head loss of dependency.
32. P.W.1 - Joyeeta Bose being wife of the deceased in her evidence has stated that at the time of the accident her husband was employed in M/s WIPRO GE Healthcare Private Limited, Brigade Metropolis, Garudachar Palya, Mahadevapura Post, Bengaluru, as General Manager - Radiology Solutions and was drawing annual salary excluding any performance linked bonuses of Rs.31,41,000-00 and he was an income tax assessee and his PAN being ACWPB3824H. She has further stated that her deceased husband held senior managerial position in WIPRO GE Healthcare Private Limited and had a bright future. He had a prospect of becoming the Chief Executive Officer also and now they have been suffering from financial loss, which is inestimable and finding difficulty to manage their livelihood and their 27 MVC 2620/2016 future has become dark and economic standards have become low.
33. In support of said contents, P.W.1 has produced IT working sheet, IT returns for the year 2016-2017, Form No.16, IT returns for the year 2015- 2016 and Form No.16 marked respectively at Ex.P.14 to Ex.P.18. Petitioners have also examined HR Manager of M/s WIPRO GE Healthcare Private Limited, Bengaluru, as P.W.2. This witness in his evidence has stated that deceased joined their company in March 2001 and as on February 2016 he was holding position of General Manager - Radiology Solutions and as on that date his annual emoluments was Rs.31,41,000-00 excluding performance linked bonuses. If he had continued and performing at the same level, his annual salary would have grown based on his performance. The average salary growth for the last 8 years was 10.93% p.a. and he was entitled for only increments and higher bonus for higher performance. Further this witness has stated that on 22-02-2016 i.e., on the date of accident deceased was assigned with official work of their company in New Delhi and enroute in the car owned by respondent No.1 to the International Airport and unfortunately he met with an accident.
28 MVC 2620/201634. In support of such contents, P.W.2 has produced Authorization letter, ID card of himself, Service letter, Salary statement, Salary slips, Form No.16 for the assessment year 2015-2016 and 2016- 2017 respectively marked at Ex.P.32 to Ex.P.38.
35. This witness has been cross-examined by the counsel for respondent Nos.3 and 4, wherein he has stated that promotions are given purely on the basis of merits and salary gets hiked periodically. He has stated that all the employees of WIPRO GE company are provided with Life Insurance and accident compensation or insurance is provided in their company, but that benefit is available only for physically disabled, but not in death case. He has further produced two more documents such as Accident insurance policy done by their company to the employees and Performance appraisal - 2013 marked respectively at Ex.P.39 and Ex.P.40. It has come in his evidence that deceased joined their company in 2001 and the age of superannuation is 60 years. He has denied the suggestion that deceased was not drawing yearly income of Rs.31,41,000-00.
36. This witness has also been subjected to cross-examination by respondent No.4 wherein he has stated that apart from salary, their company has not paid any amount to the deceased family as a death 29 MVC 2620/2016 benefit and no deceased family members approached their company seeking job on compassionate ground and salary was credited to the deceased through his HDFC Bank account. He has further stated that his company provided air tickets to the deceased to travel to Delhi on the date of accident.
37. Ex.P.34 is Service letter of deceased Kaushik Bose working with WIPRO GE Healthcare Private Limited as General Manager - Radiology Solutions, GE, Healthcare India and his date of joining is mentioned as 26-03-2001. Salary certificate at Ex.P.35 discloses the salary of the deceased, wherein his annual fixed salary for the year 2016 is stated as Rs.34,84,311-00 and his annual variable pay is mentioned as Rs.17,42,156-00. Pay slip at Ex.P.36 for the month of August to December 2015, January and February 2016 are produced by P.W.1. The deceased died on 22-02-2016. Pay slip for the month of January 2016 discloses the monthly gross salary of the deceased was Rs.2,34,181-00. Form No.16 pertaining to the deceased for the assessment year 2015-2016 i.e., from 01-04-2014 to 31-03-2015 is marked at Ex.P.17, Ex.P.18/Ex.P.37. As per this document the total amount of tax deducted is shown as Rs.7,65,777-00 for the said period and total annual income is shown as Rs.30,61,576-00, so also Form No.16 for the 30 MVC 2620/2016 assessment year 2016-2017 from 01-04-2015 to 31-03-2016 is marked at Ex.P.15, Ex.P.16/Ex.P.38, wherein the total amount of tax deposited or deducted is shown as Rs.10,33,321-00 for the said period and total annual income is shown as Rs.39,27,410-00. Hence, as per Ex.P.15, Ex.P.16/Ex.P.38, taxable amount of Rs.10,33,320-00 has to be deducted in Rs.39,27,410-00, the total annual income comes to Rs.28,94,090-00. Although, P.W.1 and P.W.2 have been cross-examined at length by the counsel for respondents, but nothing material has been elicited from them to disbelieve their version as far as salary of the deceased is concerned. Hence, it appears just and proper to consider the monthly income of the deceased as Rs.2,41,175-00 i.e., Rs.28,94,090-00 divided by 12.
38. Perusal of cause title of petition, the age of deceased is mentioned as 44 years, but P.W.1 has not produced any cogent proof regarding age of the deceased. Perusal of PM report marked at Ex.P.29, the age of deceased is mentioned as 45 years at the time of accident. Therefore, the age of the deceased is considered as 45 years at the time of accident.
39. This tribunal has drawn its attention on the decision of the Hon'ble Supreme Court of India in Special Leave Petition (Civil) No.25590/2014 in between National Insurance Company Limited Vs. 31 MVC 2620/2016 Pranay Sethi and others in which it is observed that "in case if the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition to 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation".
40. In the instant case the deceased was died in a road traffic accident when he was 45 years old and the decision as stated above is clear that the Tribunal has to consider future prospects even for self-employed or were engaged on fixed wages. The deceased falls below the age group of between 40 to 50 years. So, 25% of the future prospects is taken into consideration, it comes to Rs.2,41,175 + 25% (Rs.60,294) = Rs.3,01,469-00 which can be rounded off to Rs.3,01,500-00. Then annual salary comes to Rs.36,18,000-00.
41. In the case on hand, petitioner No.1 is the wife, petitioner Nos.2 and 3 minor children, aged about 16 and 14 years respectively and petitioner No.4 is the mother of the deceased. From this it is clear that petitioners are the financial dependants of the deceased & hence they are entitled for compensation.
32 MVC 2620/2016So, by virtue of decision reported in 2009 ACJ 1298 in between Sarla Verma Vs. Delhi Transport Corporation where the number of dependants is 4 to 6, 1/4th has to be deducted as his personal and living expenses of the deceased. In the instant case there are four dependants to the deceased. So, 1/4th has to be deducted towards his personal and living expenses, so it comes to (Rs.36,18,000 - 9,04,500) = Rs.27,13,500-00. So, deceased age is taken into consideration as 45 years, as per Sarla Verma Vs. Delhi Corporation Limited reported in ACJ 1298, the proper multiplier applicable is "14". So, Rs.27,13,500 x 14 = Rs.3,79,89,000-00 is granted towards loss of dependency to the petitioners.
42. As per SLP (Civil) No.25590/2014 in between National Insurance Company Limited Vs. Pranay Sethi and Others loss of estate is awarded as Rs.15,000-00, loss of consortium is awarded as Rs.40,000-00 and Rs.15,000-00 is awarded for funeral and obsequies.
43. Thus the total award stands as follows:
1.Loss of dependency Rs.3,79,89,000-00
2.Loss of estate 15,000-00
3. Loss of consortium 40,000-00
4.Transportation of dead 33 MVC 2620/2016 body and funeral expenses 15,000-00 Total Rs.3,80,59,000-00 Thus, the petitioners are entitled for total compensation of Rs.3,80,59,000-00 only.
44. With regard to the liability:- While answering previous Issue, this Tribunal has reached to the conclusion that the accident in question has taken place due to wrongful act on the part of drivers of both vehicles i.e., Meru Car Cab and Lorry in question.
44. As per the case of the petitioners that all the respondents being R.C. owners and insurers of both the vehicles are jointly and severally liable to pay compensation to them.
46. All the respondents have denied their part of liability to pay compensation to the petitioners, but have ultimately failed to substantiate their defence. But however respondent Nos.3 and 4, Insurance companies of both vehicles have admitted issuance of policy of insurance in favour of respondent Nos.1 and 2 in respect of their respective vehicles. Under such circumstances, respondent Nos.1 to 4 being the owners and insurers of both the vehicles are jointly and severally liable to pay compensation to the petitioners with interest at 8% p.a. from the date of petition till its realization. In view of existence of policy 34 MVC 2620/2016 of insurance, respondent Nos.3 and 4 - Insurance Companies shall equally indemnify respondent Nos.1 and 2 - owners. Hence, Issue No.3 is answered partly in the Affirmative.
47. Issue No.4:- In view of my finding on Issue Nos.1 to 3, I proceed to pass the following:
ORDER The petition filed by the petitioner U/Sec 166 of the M.V. Act, 1989 is allowed in part, with costs.
Petitioners are entitled for Rs.3,80,59,000-00 as compensation with interest at 8% p.a. from the date of petition till the date of deposit.
Respondent Nos.1 to 4 are jointly and severally liable to pay the compensation to the petitioners. In view of valid insurance policy, respondent Nos.3 and 4 Insurance Companies are equally liable to pay compensation amount and shall deposit the same within two months from the date of this award.
On deposit of the compensation amount together with interest, 60% is allotted to petitioner No.1, 15% each is allotted to petitioner Nos.2 and 3 and 10% is allotted to petitioner No.4, by way of apportionment of compensation amount.35 MVC 2620/2016
Out of the share amount of petitioner Nos.1 and 4, 40% each of the amount shall be deposited in their names in any nationalized or scheduled bank of their choice for a period of three years and the remaining 60% each shall be released to them by means of A/c payee cheques on proper identification without any further proceedings. However, they are at liberty to withdraw the periodical interest accrued on their deposit amounts from time to time.
The entire compensation amount awarded to the petitioner Nos.2 and 3 shall be deposited in their names in any nationalized or scheduled bank of the choice of P.W.1, till they attain the age of majority. However, P.W.1 is at liberty to withdraw the periodical interest accrued on their deposit amount from time to time.
Advocate fee is fixed at Rs.1,000-00.
Draw award accordingly.
(Dictated to the Stenographer transcribed by him, corrected and pronounced by me in open court, on this the 24th day of March 2018).
(GOMATI RAGHAVENDRA) VII Addl. Judge & XXXII ACMM, Bengaluru.36 MVC 2620/2016
ANNEXURE List of witnesses examined for the petitioners:
P.W.1 Joyeeta Bose
P.W.2 Tarun Thomas
List of documents marked on behalf of the
petitioners:
Ex.P.1 Marriage Certificate
Ex.P.2 Birth certificate of petitioner No.2
Ex.P.3 Birth certificate of petitioner No.3
Ex.P.4 Notarised copy of Passport of petitioner
No.1
Ex.P.5 Notarised copy of Passport of petitioner
No.2
Ex.P.6 Notarised copy of Passport of petitioner
No.3
Ex.P.7 Notarised copy of PAN card of petitioner
No.1
Ex.P.8 Notarised copy of PAN card of petitioner
No.2
Ex.P.9 Notarised copy of PAN card of petitioner
No.3
Ex.P.10 Certificate issued by the employer along
with certificate U/S 65(B) of Indian
Evidence Act
Ex.P.11 Cab booking status dt.20-02-2016
Ex.P.12 Cab booking status dt.22-02-2016
Ex.P.13 Death certificate of Kaushik Bose
Ex.P.14 Income Tax working sheet
Ex.P.15 Income Tax returns for the year 2016-2017
Ex.P.16 Form No.16
Ex.P.17 Income Tax returns for the year 2015-2016
Ex.P.18 Form No.16
Ex.P.19 Certified copy of the order sheet in CC
11439/16
Ex.P.20 Copy of Complaint
Ex.P.21 Copy of FIR
Ex.P.22 Copy of witness statements (7 in Nos.)
(a to g)
37 MVC 2620/2016
Ex.P.23 Copy of Police intimation
Ex.P.24 Copy of Inquest report
Ex.P.25 Copy of spot Sketch
Ex.P.26 Copy of spot Mahazar
Ex.P.27 Copy of seizure Mahazar
Ex.P.28 Copy of IMV report
Ex.P.29 Copy of PM report
Ex.P.30 Copy of Wound certificate
Ex.P.31 Copy of Charge sheet
Ex.P.32 Authorization letter
Ex.P.33 Notarised copy of ID card P.W.2 Ex.P.34 Service letter Ex.P.35 Salary statement Ex.P.36 Salary slips (7) Ex.P.37 Form-16 for the assessment year 2015-16 Ex.P.38 Form-16 for the assessment year 2015-16 Ex.P.39 Accident Insurance policy Ex.P.40 Performance Appraisal-2013 List of witnesses examined for the Respondents:
R.W.1 A.Anil Kumar
R.W.2 Nanjegowda
R.W.3 Anand Kumar
R.W.4 Nagendra Prasad
R.W.5 M.S.Savitha
List of documents marked on behalf of the
Respondents:
Ex.R.1 Copy of statement of lorry driver
Ex.R.2 Copy of spot Sketch
Ex.R.3 Authorization letter
Ex.R.4 Authorization letter
Ex.R.5 Policy copy of Lorry bearing reg. No.
KA-43-3038
(GOMATI RAGHAVENDRA)
VII Addl. Judge & XXXII ACMM,
Bengaluru.