Bangalore District Court
Sri.Sannappa vs Branch Manager on 9 November, 2016
BEFORE VII ADDL. JUDGE & XXXII ACMM
Court of Small Causes, Bangalore, (SCCH-3)
DATED THIS THE 9th NOVEMBER 2016
PRESENT:
Smt.GOMATI RAGHAVENDRA
LL.M, D.I.P.R, D.C.L
VII Addl. Judge & XXXII ACMM,
Court of Small Causes, Bengaluru.
M.V.C.No.6097/2012
Petitioners 1. Sri.Sannappa,
S/o.Late.Somappa,
Aged about 65 years.
2. Kum.Renukamma.B.S.,
D/o.Sannappa,
Aged about 20 years.
3. Sri.Revana Siddappa.B.S.,
S/o.Sannappa,
Aged about 32 years.
4. Sri.Srinivas.B.S.,
S/o.Sannappa,
Aged about 29 years.
5. Sri.Sharanappa.B.S.,
S/o.Sannappa,
Aged about 23 years.
All are residing at Bidarikere
Village, Jagalur Taluk,
Davanagere District.
Also residing at No.203,
II Cross, Bapujinagar,
Bengaluru.
(Sri.C.R.Srinivas, Advocate)
Vs.
2 SCCH-3 MVC.No.6097/2012
Respondents 1. Branch Manager,
National Insurance Co., Ltd.,
II Floor, Thantai Periyar,
Market Complex, Opp. Old Bus
Stand, Govindaswamy Pillai Street,
Selam, Tamil Nadu-01.
(Exparte)
2. Regional Manager,
National Insurance Co., Ltd.,
No.22/1, II Floor,
Shubhram Complex, M.G.Road,
Bengaluru-1.
(Sri.S.N.Ramaswamy, Advocate)
3. Sri.Sundar Rajan.S.,
S/o.Sella Muthu,
No.38, Manickavasagar Street,
Ammapet,
Salem-636 053.
(Exparte)
JUDGMENT
This is a claim petition filed by the petitioners against the respondents under Section 166 of Motor Vehicles Act 1989, for seeking compensation of Rs.40,00,000/- for the 3 SCCH-3 MVC.No.6097/2012 death of Sri.Somesha.B.S., S/o Sannappa in a road traffic accident.
2. The case of the petitioners in brief is as under; That on 02.11.2011 at about 12.15 p.m., when deceased Somesha.B.S. was traveling in a Tempo bearing Reg.No.KA-27-3029 Maxi Cab from Shiggav to Bankapur, when the said Maxi Cab stopped near D.B. Cross Bus Stop, at that time Lorry bearing Reg.No.TN-30-AA-0895 came from back side in a rash and negligent manner and dashed against the tempo and hit to the right side of the back portion of the tempo. Due to which the tempo was thrown by the lorry. The deceased being the inmate of the tempo fell down and sustained multiple grievous injuries all over the body and immediately he was shifted to S.D.M.Hospital, Dharward by the help of the public. The concerned police have registered case in 4 SCCH-3 MVC.No.6097/2012 Crime.No.117/2011 against the driver of the lorry for the offence punishable U/s.279, 337, 338 & 304(A) of IPC.
3. It is stated that deceased was working in 108 Yashaswini Ambulance "Medical Attendant" (Brother) Haveri & also working in part time "Brother" Sanjivini Hospital, Davanagere and drawing a salary of Rs.30,000/- per month. Respondent No.1 to 3 being the insurer and R.C. Owner of the offending vehicle are liable to pay compensation to them.
4. Inspite of service of summons, respondent No.1 & 3 failed to appear before the court and placed exparte. Respondent No.2 put its appearance through his counsel and resisted the petition by filing written statement stating that respondent No.3 had knowingly entrusted the vehicle to the driver who had no valid and effective driving license to drive the class of vehicle and as such this respondent has no obligation to indemnify any amount. It has 5 SCCH-3 MVC.No.6097/2012 specifically denied the involvement of alleged lorry in the said accident and there was no permit and fitness certificate for the said lorry and same is in violation of policy conditions and that the accident occurred because of rash and negligent driving of the tempo, but not the lorry driver. Denying rest of the petition contents, this respondent has sought for dismissal of the petition.
5. On the basis of the aforesaid rival pleadings and materials available on record, the following issues were framed.
ISSUES
1. Whether the petitioners prove that deceased Sri.Somesha.B.S., S/o.Sannappa died due to the injuries sustained in an accident occurred on 02.11.2011 at about 12.15 p.m., Hubli to Haveri NH-4 Road Near Bisanahalli-Village, Shiggaon-Tq, Haveri-Dist., due to rash nor negligent driving of Ashok Leyland Lorry bearing Reg.No.TN-30-AA-0895 by its driver?
2. Whether the petitioners are entitled for compensation? If so, what amount & from whom?
6 SCCH-3 MVC.No.6097/2012
3. What order or award?
6. The petitioners in order to prove their claim petition, the petitioner No.1 has examined himself as PW1 and also examined one more witness as PW.2 and got marked the documents as Ex.P1 to Ex.P21 and closed their side evidence. Respondents led no evidence.
7. Heard arguments, perused, materials available on record.
8. My finding on the above issues are as under:
Issue No.1: In the Affirmative
Issue No.2: Partly Affirmative
Issue No.3: As per the final order
for the following.
REASONS
9. Issue No.1: In order to substantiate the petition
averments, petitioner No.1 stepped into the witness box and led evidence as PW.1. The affidavit evidence of PW.1 is 7 SCCH-3 MVC.No.6097/2012 nothing but replica of petition contents. In addition to his ocular evidence, PW.1 has placed reliance of documentary evidence at Ex.P.1 to Ex.P.20. The FIR with complaint, Spot Sketch and Spot Mahazar, IMV Report, Inquest Report, PM Report and Charge Sheet are marked respectively at Ex.P.1 to Ex.P.6.
10. According to the petitioners, petitioner No.1 is the father and petitioner No.2 to 5 are the brothers and sisters of deceased Somesha, who died in the accident that occurred on 02.11.2011. In support of such contents, PW.1 has produced Notarized Copy of Death Certificate of said Somesha, perusal of which, the father name is mentioned as Sannappa, the petitioner No.1 herein. He has also produced Notarized Copy Voter ID Card, Notarized Copy of SSLC Marks Card, Notarized Copy of PUC Marks Card, Notarized Copy of Degree Marks Card, Notarized Copy of Nursing internship Marks Card, Notarized Copy of 8 SCCH-3 MVC.No.6097/2012 Completion Certificate, Notarized Copy of Nursing and Midwifery Certificate and Notarized Copy of Nursing Registration Certificate, which are marked at Ex.P.10 to Ex.P.17 respectively. Perusal of these documents father name is mentioned as Sannappa. The aforesaid documentary evidence coupled with the evidence of PW.1 makes it clear that petitioner No.1 is the father of deceased and petitioner Nos. 2 to 5 are the sisters and brother of deceased Somesha and they become LR's of the deceased person.
11. As per the case of the petitioners that on the relevant date, time and place deceased Somesha was traveling as a passenger in a Maxi Cab bearing Reg.No.KA- 27-3029, at that time the Lorry bearing Reg.No.TN-30-AA- 0895 driven by its driver in a high speed with rash and negligent manner to endanger to human life and dashed against the tempo as a result of which the tempo toppled 9 SCCH-3 MVC.No.6097/2012 and said Somesha thrown out of the tempo, and succumbed to the injuries while under treatment and as such the accident has occurred due to the wrongful act on the part of the driver of the lorry.
12. Perusal of complaint, which came to be lodged by one Revanashiddappa, S/o Basappa, who was one of the inmates in the Tempo bearing Reg.No.KA-27-3029 has stated in the complaint that accident occurred due to rash and negligent driving on the part of the driver of the Lorry bearing Reg.No.TN-30-AA-0895. Based on the compliant, FIR at Ex.P.1 came to be registered by Bankapura Police Station against the driver of the accused by name Manikandan, S/o Raju for the offence punishable U/s.279, 337, 338 & 304(A) of IPC. The spot sketch and spot mahazar prepared at the scene of the occurrence corroborate Ex.P.1. IMV Report at Ex.P.3 discloses the damages found on the vehicles in question and the IMV 10 SCCH-3 MVC.No.6097/2012 Inspector has opined that accident was not due to any mechanical defect of both the vehicles. PM Report is marked at Ex.P.5, after investigation of the case, the I.O. has submitted charge Sheet at Ex.P6 against the accused for the offence punishable U/s.279, 337, 338 & 304(A) of IPC.
13. Besides producing the aforesaid documentary evidence, petitioners have also examined the complainant, who has lodged the complaint and also an eye witness to the incident being an inmate of the Tempo as PW.2. This witness during the course of his evidence has in an unequivocal terms deposed that while he was traveling as a passenger to go to his village in a Tempo bearing Reg.No.KA-27-3029, the tempo stopped in kaccha road, at that time the driver of the Lorry bearing Reg.No.TN-30-AA- 0895 drove the same in a rash and negligent manner and hit to the right side of the tempo from its behind. Due to which passengers of tempo sustained injuries and one 11 SCCH-3 MVC.No.6097/2012 Somesha died due to the accident. This witness got marked his Notarized Copy of Aadhaar Card at Ex.P.21. Although the witness has been cross examined at length by the respondents, but nothing worth materials has been elicited from him to disbelieve his version.
14. The respondent has although resisted the petition and denied the manner of the incident as alleged in the petition, but has failed to substantiate its defence. Absolutely there are no contra materials to disprove the petition contents as well as to discard the evidence relied upon by the petitioners both oral and documentary. Hence, this tribunal is of the considered opinion that the accident occurred due to the actionable negligence on the part of the driver of the Lorry. Hence, Issue No.1 is answered in the Affirmative.
12 SCCH-3 MVC.No.6097/2012
15. Issue No.2:
PW1 being father of the deceased in his evidence has stated that himself and the petitioner Nos.2 to 5 are the legal heirs and financial dependants of the deceased.
16. PW1 in his evidence has clearly stated that prior to the accident his son was aged about 24 years, hale and healthy and working as a medical attendant in 108 ambulance and getting salary of Rs.7,840/- per month. Apart from the said job he was also working at Sanjeevini hospital and earning a sum of Rs.8,000/- per month. His son was contributing his entire earnings towards the maintenance and welfare of the family The petitioners have produced Ex.P7 to Ex.P20 such as ID card of BVK EMRI 108 ambulance, confirmation letter of BVK EMRI with pay slip, death certificate, voter ID card, SSLC marks card, nursing internship marks card, completion certificate, copy of nursing and midwifery certificate, nursing registration 13 SCCH-3 MVC.No.6097/2012 certificate front page of cheque book, sanction letter given by SBI for ATM card and Magzine GVK EMRI. On perusal of salary slip at Ex.P8 it reveals that the deceased was earning Rs.7,840/- per month. Ex.P11 SSLC Marks card reveals his date of birth as 10.9.1987. The accident occurred on 2.11.2011. So, as on the date of accident the deceased was aged about 24 years. On perusal of Ex.P8 the deceased was earning Rs.7,840/- per month. Therefore, it is just and necessary to consider the income of the petitioner as Rs.7,840/- per month.
17. This Court has drawn the Court attention on the principles laid down in Rajesh and others Vs. Rajabir Singh for future prospects and relied upon the decision reported in 2013 ACJ 1403 in between the Rajesh and others Vs. Rajabir Singh and Others if the deceased falls under the age group of below 40 years, 50% of the future prospects should be taken into consideration. In the 14 SCCH-3 MVC.No.6097/2012 instant case the deceased falls under the age group of below 40 years. So, if 50% of the future prospects is taken into consideration the deceased monthly salary of Rs.11,760/-. His annual income comes to Rs.1,41,120/-.
18. Admittedly the deceased was a bachelor, 50% should be deducted as personal and living expenses of the deceased. So, if 50% is deducted from his yearly income it comes to Rs.70,560/-. The deceased age has been already considered at 24 years as on the date of alleged accident. So as per Sarla Verma Vs. Delhi Corporation Limited reported in ACJ 1298 the multiplier applicable is 18. So, Rs.70,560X18=Rs.12,70,000/- towards loss of dependency.
19. In the instant case the petitioner No.1 is the father of the deceased, the petitioner Nos. 2 to 5 are sister and brothers of the deceased. PW1 in his cross- examination has admitted that the petitioner Nos. 2 to 5 15 SCCH-3 MVC.No.6097/2012 are not yet married. The petitioner No.2 being the sister of the deceased, she has not married. So, she is also financial dependant of the deceased. The petitioner Nos. 3 to 5 are the brothers of the deceased they are major and hence they are not considered as dependants of the deceased. Moreover PW1 has not produced any documents to show that petitioner Nos. 3 to 5 are the financial dependants of the deceased. So, they are entitled for loss of love and affection and loss of estate only.
20. It is an admitted fact that the petitioner Nos. 1 to 5 are father, sister and brothers of the deceased, they lost love and affection. So, it is just and necessary to grant Rs.20,000/- each under the head of loss of love and affection. So, Rs.10,000/- is awarded under the head of loss of estate. So, Rs.20,000/- is granted for transportation of dead body and funeral and obsequies.
16 SCCH-3 MVC.No.6097/2012
21. Thus the total award stands as follows:
1.Loss of dependency Rs.12,70,000-00
2.Loss of love and affection Rs. 1,00,000-00
3.Loss of estate Rs. 10,000-00
4.Transportation of dead body Rs. 20,000-00 and funeral expenses Total Rs.14,00,000-00
22. With regard to liability:- While discussing the previous issue, this tribunal has reached to the conclusion that the accident has taken place due to the rash and negligent driving on the part of the driver of the offending vehicle. Respondent has admitted the issuance of policy of insurance in respect of the said lorry as well as validity of the insurance as on the date of the accident. It has although denied possessing of valid and effective driving license by the driver of the lorry, but ultimately has failed to prove its defence. Respondent No.1 & 3 inspite of service of summons failed to appear before the court and placed 17 SCCH-3 MVC.No.6097/2012 exparte. If at all they had any grievance against claim petition, they could have appeared before the court and resisted the petition. But for the reasons best known to them, they have not done so, which in turn leads to an adverse inference against them. Respondent No.2 on the other hand has though taken up defence of non possessing driving license by driver, unauthorizedly allowing the driver to drive the lorry by the insured etc., but failed to lead his evidence in this regard. Under such circumstances, the R.C. Owner as well as the insured of the offending vehicle are jointly and severally liable to pay compensation to the petitioners. Accordingly, this issue has been answered Partly in the Affirmative.
23. Issue No.4: In view of my finding on issue Nos.1 and 2, I proceed to pass the following:
ORDER The petition filed under section of 166 of the M.V. Act is partly allowed, with costs. The petitioners are entitled for 18 SCCH-3 MVC.No.6097/2012 compensation of Rs.14,00,000/- together with interest at the rate of 8% p.a. from the date of the claim petition till its realisation.
The respondents are jointly and severally liable to pay the compensation. But in view of the valid insurance the respondent No.2 alone is liable to pay the compensation with interest at the rate of 8% p.a. from the date of the claim petition till its realisation within two months from the date of this order.
On deposit of the compensation amount together with interest, Rs.30,000/- each is allotted to the share of petitioner Nos. 3 to 5 and from the remaining amount 70% is allotted to the share of 1st petitioner and 30% is allotted to the share of 2nd petitioner by way of apportionment of compensation amount.
19 SCCH-3 MVC.No.6097/2012 With regard to the quantum of compensation of 1st and 2nd petitioners, 40% of the amount shall be deposited in the name of the petitioners in any nationalised or scheduled bank of their choice for a period of three years and the remaining 60% shall be released to them by means of A/c payee cheque on proper identification. The petitioners are at liberty to withdraw the periodical interest accrued on their deposit amount from time to time.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
(Dictated to the stenographer, transcript thereof, corrected by me and then pronounced in the open court on this 9th day of November 2016).
(GOMATI RAGHAVENDRA) VII Addl. Judge & XXXII ACMM, Bengaluru.
ANNEXURE List of the witnesses examined on behalf of petitioner:
PW1 Sri.Sannappa 20 SCCH-3 MVC.No.6097/2012 PW2 Sri.Revanasiddappa Basappa Yeligeer
List of the documents exhibited on behalf of petitioner:
Ex.P1 : True copy of FIR with complaint, Ex.P2 : True copy of Spot Sketch & spot Mahazar, Ex.P3 : True copy of IMV report, Ex.P4 : True copy of Inquest report, Ex.P5 : True copy of PM report, Ex.P6 : True copy of Charge Sheet, Ex.P7 : Original ID card of GVK EMRI 108 ambulance, Ex.P8 : Confirmation letter of GVK EMRI with pay slip, Ex.P9 : Notarised copy of Death certificate Ex.P10 : Notarised copy of Voter ID card Ex.P11 : Notarised copy of SSLC marks card Ex.P12 : Notarised copy of PUC marks card Ex.P13 : Notarised copy of Degree marks cards (6 in nos.) Ex.P14 : Notarised copy of nursing internship marks card Ex.P15 : Notarised copy of Completion certificate Ex.P16 : Notarised copy of nursing and midwifery certificate Ex.P17 : Notarised copy of nursing registration certificate Ex.P18 : Notarised copy of front page of the cheque book Ex.P19 : Sanction letter given by SBI for ATM card, Ex.P20 Magzine "GVK EMRI"
Ex.P21 : Notarised copy of Aadhaar card List of the witnesses examined on behalf of respondents:
-Nil-
21 SCCH-3 MVC.No.6097/2012 List of the documents marked on behalf of respondents:
-Nil-
(GOMATI RAGHAVENDRA) VII Addl. Judge & XXXII ACMM, Bengaluru.