Bangalore District Court
Smt. Hemalatha vs Ameer Crane Services on 29 November, 2016
1 SCCH-1
MVC 187/16
BEFORE THE MEMBER PRL.MOTOR ACCIDENT CLAIMS
TRIBUNAL AT BANGALORE
(S.C.C.H. - 1)
DATED THIS THE 29th DAY OF NOVEMBER 2016
PRESENT : SRI H.P.SANDESH, B.A.L, ., LL.B,
MEMBER, PRL. M.A.C.T.
M.V.C. No. 187/2016
Petitioners: 1. Smt. Hemalatha,
W/o. Late Bhaskar,
Aged about 44 years,
2. Mr. Harsha H.B.,
S/o. Late Bhaskar,
Aged about 24 years,
3. MS. Bindu Shree H.B.,
S/o. Late Bhaskar,
Aged about 19 years.
All are R/at,
No.20/3, 20th Cross,
Bhuvaneshwarinagar,
Magadi Main Road,
Bangalore - 560 0023
(By Sri. Bharath Kumar S., Advocate)
-Vs-
Respondents: 1. Ameer Crane Services,
No.100/2, 3rd Cross,
Hosur Main Road,
Bommanahalli, Bangalore.
(R.C.Owner of Crane bearing Reg.No. KA-
05-MD-264)
2 SCCH-1
MVC 187/16
2. Tata AIG Insurance Co. Ltd.,
No.69, 3rd Floor,
J.P. and Devi Jambukershwara
Arcade,
Millers Road,
Bangalore - 560 052.
(Insurer of Crane bearing Reg.No.
KA-05-MD-0264)
(Policy No.010104808301
Valid from 24.10.2015 to
23.10.2016)
(R-1-Sri. H.Dayananda,
R-2-Sri. Y.P.Venkatapathi, Advocates)
***********
JUDGMENT
The petitioners have filed this petition under Section 166 of the Motor Vehicles Act, 1989 claiming compensation of Rs.50,00,000/- from the respondents with regard to the death of Mr.Bhaskar in the road traffic accident which took place on 01.01.2016. The 1st petitioner is the wife, 2nd and 3rd petitioners are the children of the deceased.
2. The brief facts of the case are:
It is the case of the petitioners that, on 01.01.2016 at about 12.30 afternoon the deceased was proceeding in the
3 SCCH-1 MVC 187/16 motor cycle bearing Reg.No. KA-02-HN-0068 on Magadi Main Road from Sumanahalli towards Sunkadakatte and when he reached near Kottlegepalya bus stop, at that time, a crane bearing Reg.No. KA-05-MD-0264 driven by its driver came in a rash and negligent manner and dashed against the deceased motor cycle, as a result he succumbed to the injuries on the spot.
3. It is further contended that, after the Post Mortem conducted in the Victoria hospital the body was handed over to them to perform last rights and they have spent Rs.1,50,000/- for funeral and obsequies ceremonies.
4. It is further contended that, as on the date of the accident deceased was hale and healthy and he was aged about 48 years. He was working as Field Officer and was earning Rs.25,000/- p.m. Due to the demise of the deceased, petitioners have lost the only earning member of the family.
5. Petitioners have further contended that, the accident was occurred due to the rash and negligent driving of the offending vehicle and the Kamakshipalya traffic police have registered a case against him u/s. 279, 304-A of IPC. The 1st 4 SCCH-1 MVC 187/16 respondent being the owner and 2nd respondent being the insurer of the offending vehicle, both are jointly and severally liable to pay compensation of Rs. 50,00,000/- to the petitioners. Hence, prayed to allow the petition.
6. In pursuance of this claim petition, this Court issued notice against both the respondents. The respondent No.1 & 2 appeared through their respective counsel and filed separate written statements.
7. 1st respondent in his written statement has denied all the averments made in the petition and contended that the accident was occurred due to the negligence on the part of the deceased himself, since he has ridden the same in a rash and negligent manner without observing traffic norms dashed to the offending vehicle.
8. Further 1st respondent has contended that, petitioners have to prove the involvement of the offending vehicle and the negligence on the part of the driver of the offending vehicle in the alleged accident, age, avocation, income, relationship with the deceased and the amount spent towards hospitalization and other expenses. Also, contended 5 SCCH-1 MVC 187/16 that the compensation claimed by the petitioners is highly excessive. Hence, prayed to reject the petition.
9. The 2nd respondent in its written statement has denied all the petition averments and contended that, the petition itself is not maintainable either on facts or in law against it. Further the 2nd respondent admits the issuance of policy in favour of the 1st respondent in respect of the Crane bearing Reg.No. KA-05-MD-264 the liability if any is subject to the terms and conditions of the policy of insurance and provisions of the Motor Vehicles Act and valid and effective driving licence held by the driver of Crane as well as the deceased as on the date of the alleged accident. Further contended that, the accident has occurred due to the negligence on the part of the deceased himself and the offending vehicle has not at all involved in the accident. It is contended that, the respondent No.2/insured and jurisdictional police have not complied with the statutory obligations as per section 134(c) and 158(6) of MV Act. Hence it is not liable to pay compensation.
6 SCCH-1 MVC 187/16
10. Further it is contended that, petitioners have to prove the age, occupation, relationship with the deceased, occurrence of the accident, involvement of the vehicle in the alleged accident, expenses made towards funeral and other incidental expenses. Also the respondent No.1 has reserves the right to file additional written statement under the changed circumstance U/s. 170 of the M.V.Act. Hence prayed to dismiss the petition.
11. Based on the pleadings, this Court has framed the following:-
ISSUES
1. Whether the Petitioners prove that the deceased succumbed to injuries in a Motor Vehicle Accident that occurred on 1-1-2016 at about 12.30 p.m, Near Kottigepalya Bus stop, Bangalore, within the jurisdiction of Kamakshipalya Traffic Police Station on account of rash and negligent driving of the Crane bearing registration No.KA-05-MD-264 by its driver?
2. Whether the Respondent NO.1 proves that the accident occurred on account of negligent act of the Deceased?
3. Whether the Petitioners are entitled for compensation? If so, how much and from whom?
4. What order?
7 SCCH-1 MVC 187/16
12. In order to prove their claim, the 1st petitioner has been examined as PW-1 and got marked the documents Ex.P.1 to 14. On the other hand respondents have not adduced any evidence before the Court.
13. Based on the pleadings and the evidence available on record, I record my findings on the above issues as under:-
1. Issue No.1 ... In the Affirmative
2. Issue No.2 ... In the Negative
3. Issue No.3 ... Partly in the Affirmative
4. Issue No.4 ... As per final order For the following:
REASONS
14. Issue No.1 & 2: Since these two issues are interconnected to each other, hence taken up together for discussion in order to avoid repetitions.
15. It is the case of the petitioners that, on 01.01.2016 the deceased was proceeding in his motor cycle bearing Reg.No. KA-02-HN-0068 on Magadi Main Road from Sumanahalli towards Sunkadakatte when he reached Kottlegepalya bus stop, at that time, a crane bearing Reg.No. KA-05-MD-0264 driven by its driver came in a rash and 8 SCCH-1 MVC 187/16 negligent manner and dashed against deceased motor cycle, as a result he succumbed to the injuries on the spot. On the other hand the respondents have taken a defence that, the accident was occurred due to the negligence on the part of the deceased himself and the offending vehicle is not involved in the accident.
16. The petitioners in order to prove their contention, they have examined the first petitioner as PW.1 and she reiterated the averments made in the petition and got marked the documents FIR, Mahazar, Sketch, IMV Report and Charge Sheet, as Ex.P1 to 4 and Ex.P7.
17. The PW.1 was subjected to cross examination and in the cross examination it is elicited that, she has not produced the R.C and insurance of their vehicle and she has not produced the Driving License of her husband and the same was lost during the time of the accident. She has not given any complaint about the loss of Driving License. It is suggested that, her husband was not having the Driving License and there was no any insurance to the said vehicle and the same was denied. She admits that, the police have drawn the sketch 9 SCCH-1 MVC 187/16 properly. It is suggested that, her husband was proceeding on the right side of the road and without observing the vehicle, he himself fell down from the motor cycle and the same was denied. It is suggested that, instead of riding the motor cycle on the left side of the road, he was riding on the right side and the same was denied.
18. On the other hand, though the respondents have taken the defence that the accident was occurred due to the negligence on the part of the deceased himself, and the offending vehicle is not involved in the accident, they have not examined any of the witness nor produced any documentary evidence before the court to prove their contention.
19. Now let me appreciate both oral and documentary evidence available before the court with regard to the negligence is concerned. It is the contention of the petitioners that, the accident was occurred due to the negligence on the part of the driver of the offending vehicle Crane. On the other hand the 1st respondent who is the owner of the offending vehicle has taken the defence that, the accident was due to the 10 SCCH-1 MVC 187/16 negligence on the part of the deceased himself. The 2nd respondent insurance company also in Para 6 of the written statement has contended that the insured Crane was not at all involved in the accident.
20. In the cross examination PW.1 categorically admits that, she has not witnessed the accident and her husband alone was proceeding in the motor cycle. She has denied the suggestion that, her husband was proceeding on the right side of the road and without observing the vehicle, he himself fell down from the motor cycle. Though the respondents have disputed the involvement of the Crane, they have not led any evidence before the Court.
21. On perusal of Ex.P1, FIR it discloses that, the accident was occurred on 01.01.2016 at 12.30 hrs. and complaint was lodged on the same day at 14.15 hrs. i.e. within a span of 3 hrs. It has to be noted that, the complaint was lodged by the person who has witnessed the accident. In the complaint, complainant has made an allegation against the driver of the offending vehicle that, himself and the deceased were proceeding in the separate vehicles from Sumanahalli 11 SCCH-1 MVC 187/16 towards Sunkadakatte and when they reached near Kottigepalya bus stop, offending vehicle driver who came from behind, drove the same in a rash and negligent manner, and dashed to the deceased vehicle, as a result deceased fell down and the back wheel of the crane ran over the deceased, hence he seriously got injured. Immediately they took the deceased to the hospital, Doctors declared him dead. On perusal of the Charge Sheet Ex.P7 it discloses that, the police have also investigated the matter and filed Charge Sheet against the driver of the offending vehicle and the complainant is the Charge Sheet witness as CW.1 who had witnessed the accident.
22. The Sketch which is marked as Ex.P3 discloses that, the rider of the motor cycle was proceeding in his direction and the offending vehicle which came in the same direction came towards the right side and dashed to the motor cyclist from behind and the Sketch has not been disputed by the respondents.
23. On perusal of IMV report which is marked as Ex.P4 discloses that, there is no damage to the offending vehicle and 12 SCCH-1 MVC 187/16 the motor cycle has sustained damages to the front left indicator, head lamp assembly right side scratches, left view mirror was damaged, gear shifting lever bent, tail lamp assembly damaged, silencer assembly dent. Hence it is clear that, the accident has occurred on account of negligence on the part of the driver of the offending vehicle.
24. It is important to note that, though the respondent No.1 has filed the written statement stating that, the accident was occurred due to the negligence on the part of the deceased himself, the driver of the offending vehicle has not been examined before the Court who is the right person to speak with regard to the negligence on the part of the motor cyclist/deceased. Mere taking of the defence is not enough, if the driver had been subjected to examination and cross examination, there would have been force in the contention of the respondents. Sketch, IMV Report and Charge Sheet substantiates the contention of the petitioners that, the accident was occurred due to the negligence on the part of the driver of the offending vehicle. There is no rebuttal evidence against the evidence of PW.1. In the absence of any contra 13 SCCH-1 MVC 187/16 evidence this court has to consider the evidence of PW.1. In order to come to the conclusion of contributory negligence, there must be cogent evidence before this court. In the recent judgment reported in 2014 Kant MAC 330 (SC) wherein it was held as under:-
"....No cogent evidence to prove plea of contributory negligence - Doctrine of common law cannot be applied - Compensation awarded by Tribunal Just and proper...."
In view of the judgment referred supra and in the absence of cogent evidence as against the evidence of PW.1, I am of the opinion that the petitioner has proved that the accident was occurred due to the negligence on the part of the driver of the Crane bearing Reg.No. KA-05-MD-264. Hence issue No.1 is answered in the Affirmative and issue No.2 in the Negative.
25. Issue No.3:- The petitioner who has been examined as PW.1 in her evidence has reiterated the averments of the petition. It is their contention that, she is the wife and petitioner No.2 and 3 are children of the deceased. Also it is 14 SCCH-1 MVC 187/16 their case that, the deceased was aged about 48 years at the time of the accident and he was a Field Officer and was earning Rs.25,000/- p.m. and he was contributing his entire income to the family maintenance. In support of their claim they have also produced P.M.Report as Ex.P5, Inquest Report as Ex.P6, Ex.P8 Pay slips (2 in nos.), Ex.P9 Appointment letter, Ex.P10 letter issued by Bhuvaneshwari Co-operative viewers society, Ex.P11 to 14 Aadhaar cards of deceased as well as petitioners.
26. The PW.1 was subjected to cross examination and in the cross examination it is elicited that, her husband is not having his parents. It is suggested that, she is falsely claiming that she had spent an amount of Rs.1,50,000/- towards hospital expenses, funeral and obsequies and the same was denied. She admits that, her son Harsha has given the statement before the police stating that he was working in the Cable office. It is suggested that, she has not produced any documents regarding employment of her husband and the same was denied. It is suggested that, Ex.P.9 is created for the purpose of this case and the same was denied. It is suggested 15 SCCH-1 MVC 187/16 that, Ex.P10 is also created and produced and the same was denied. She says, she can examine the employer. She does not know in what mode her husband was getting the salary and she can produce the bank statement before the Court. It is suggested that, her husband was not working and earning Rs.25,000/- per month and the same was denied. It is suggested that, her son and herself were not depending on the income of her husband and the same was denied. It is suggested that, Ex.P.11 to 14 are created and produced and the same was denied.
27. Now let me appreciate both oral and documentary evidence available before the court. The petitioners have relied upon the Aadhaar card of the deceased which is marked as Ex.P11 as age proof in which deceased birth year is mentioned as 1966 and the accident was occurred on 01.01.2016, hence it is clear that, the deceased was aged 49 years at the time of the accident. For having taken note of the Date of birth mentioned in the Aadhaar card this Court has taken the age of 16 SCCH-1 MVC 187/16 the deceased as 49 years and the relevant multiplier applicable to the case on hand is 13.
28. It is their claim that, the deceased was working as Field Officer in GEERK Business Solutions and earning Rs.25,000/- p.m. The petitioners have produced Ex.P8 Salary Slips, Ex.P9 Letter issued by Geerks business solutions stating that, they have appointed deceased as Field Officer which will effect from 01.11.2015 and Ex.P10 Letter issued by the Bhuvaneshwari Power Looms Weaver's Cooperative Society Ltd., stating that, the deceased was working as Secretary and his service period is from 5 p.m. to 8 p.m. and he was getting Rs.5,000/- salary. The petitioners in order to prove Ex.P8 and 9 issued by Geerk business solutions they have not examined the author of the said documents. However, in the Inquest Report Ex.P6 which was conducted on 01.01.2016 it is specifically mentioned that, the deceased was working in Geerk company as a Field Officer and this document came into existence immediately after the accident. Hence it is clear that, he was working as Field Officer as contended in Ex.9. On 17 SCCH-1 MVC 187/16 perusal of Salary Slips Ex.P8 it reveals that, basic with DA Rs. 10,000/- and Petrol allowance Rs.2,000/- p.m. was given and total salary is Rs.12,000/- p.m. This Court cannot take petrol allowance into consideration and Rs.10,000/- p.m. can be taken salary of the deceased. Hence this Court has taken the income of the deceased as Rs.10,000/-p.m. since the accident was occurred in the year 2016.
29. In view of the principles laid down in the judgment reported in 2013 ACJ 1403 (Rajesh Vs. Rajbir Singh), the Apex Court held that "even if a person is self employed, loss of future prospects has to be taken into consideration to the extent of 50% of actual income (after deduction of tax) for persons below 40 years; 30% for age group of 40 to 50 years; 15% for age group of 50 to 60 years; but no addition thereafter." In the case on hand this Court has taken the income of the deceased as Rs.10,000/- p.m. and he is aged 49 years and hence out of the same 30% of which works out to Rs.3,000/- 18 SCCH-1 MVC 187/16 and thus the total works out to Rs.13,000/-. p.m. (10,000 + 3,000).
30. There are two dependants. On perusal of Ex.P12 Aadhaar card of 1st petitioner, her birth year is mentioned as 1971 and husband name is mentioned as Bhaskar. In the cross examination she has denied the suggestion that, she also working and hence it is clear that, she was aged 44 years at the time of the accident and she is depending on the income of the deceased. With regard to the dependency of the 2nd petitioner is concerned, in the cross examination PW.1 has categorically admitted that, her son has given the statement before the police stating that, he was working in the cable office. On perusal of Ex.P13 Aadhaar card of 2nd petitioner the birth year is mentioned as 1991 and hence it is clear that, he was aged 24 years at the time of the accident and had attained the age of majority. Since the 2nd petitioner is working and also he has attained majority, this Court cannot consider the 2nd petitioner as dependent. With regard to dependency of petitioner No.3 is concerned, on perusal of Ex.P14 Aadhaar 19 SCCH-1 MVC 187/16 card, her birth year is mentioned as 1996 and hence she has attained the age of majority. Though she is major, she can be considered as dependent for the reason that, in the documents as well as in the cross examination, nowhere it is mentioned as she is married. Hence this Court has considered the 3rd petitioner as dependent on the income of the deceased since she is unmarried. Hence, 1/3rd of the income of the deceased has to be deducted for personal expenses i.e. Rs.4,333/- (13,000/3) and it comes to Rs.8,667/- (13,000-4,333). Thus, the annual loss of dependency works out to Rs.1,04,004/- (8,667x12) and if we multiply the said amount by 13 multiplier which is applicable to the case on hand, it works out to Rs.13,52,052/-, (8,667 x 13) to which the petitioners are entitled to under the head loss of dependency. Hence I award Rs.13,52,052/- which is rounded off to Rs.13,53,000/- under the head loss of dependency.
31. 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 20 SCCH-1 MVC 187/16 AIR 2014 SUPREME COURT 706 (Puttamma Vs. Narayana Reddy) awarded Rs.1,00,000/- as compensation to the family members (children and family members other than wife) for loss of love and affection, deprivation of protection, social security etc., and Rs.50,000/- as compensation to the widow of the deceased for loss of love and affection, pains and sufferings, loss of consortium, deprivation of protection, social security etc., and Rs.10,000/- towards cost incurred on account of funeral and ritual expenses.
32. In this case also, since the deceased has left behind wife and children, I deem it proper to award Rs.1,00,000/- as compensation to the family members (children and family members other than wife) for loss of love and affection, deprivation of protection, social security etc., and Rs.50,000/- as compensation to the widow of the deceased for loss of love and affection, pains and sufferings, loss of consortium, deprivation of protection, social security etc., and Rs.10,000/- towards cost incurred on account of funeral and ritual expenses.
21 SCCH-1 MVC 187/16
33. The details of compensation I propose to award are as under:
Sl.No. Head of Compensation Amount/Rs. 1 Loss of dependency 13,53,000-00 2 Compensation to the family 1,00,000-00 members (children and family members other than wife) for loss of love and affection, deprivation of protection, social security etc. 3 Compensation to the widow of 50,000-00 the deceased for loss of love and affection, pains and sufferings, loss of consortium, deprivation of protection, social security etc. 4 Cost incurred on account of 10,000-00 funeral and ritual expenses Total 15,13,000-00 In all the Petitioners are entitled for compensation of Rs. 15,13,000/-.
34. Out of the total compensation amount, the petitioner NO.2 is entitled for Rs.1,00,000/- awarded under the head of loss of love and affection. Remaining amount is apportioned to petitioners No.1 and 3.
35. Interest:
Relying upon a judgment of the Apex Court reported in 2013 AIR SCW 5375 (Minu Rout and others Vs. Satya 22 SCCH-1 MVC 187/16 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. Accordingly, the petitioners are entitled to interest at the rate of 9% p.a.
36. Liability:
While answering issue No.1 & 2 it is held that the accident has occurred on account of rash and negligent driving of the Crane bearing Reg.No.KA-05-MD-0264. The respondent No.1 being the owner and respondent No.2 being the insurer of 23 SCCH-1 MVC 187/16 the offending vehicle are jointly and severally liable to pay compensation to petitioner with interest at 9% p.a. However, primary liability is fixed on respondent No.2. Accordingly, issue No.3 is answered.
37. Issue No.4: In the result 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.15,13,000/- with interest at the rate of 9% per annum from the date of petition till realisation.
The respondents No.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 - Rs. 8,48,000/- Petitioner No.2 - Son - Rs. 1,00,000/- Petitioner No.3- Daughter- Rs. 5,65,000/- 24 SCCH-1 MVC 187/16 Out of the compensation amount so apportioned in favour of the petitioner No.1 and 3, 50% amount with proportionate interest is ordered to be released to her and remaining is ordered to be invested in high yielding fixed deposit in the name of petitioner No.1 and 3 respectively in any of the nationalized or scheduled bank of their choice for a period of 5 years.
Entire compensation amount apportioned in favour of petitioner No.2 is ordered to be released to him with interest.
Advocate's fee is fixed at Rs.1,000/-. Draw an award accordingly.
(Dictated to the Stenographer, transcribed by her, corrected, signed and then pronounced by me in the open court dated this the 29th day of November, 2016) (H.P.SANDESH) Member, Prl. M.A.C.T. Bangalore ANNEXURES Witnesses examined on behalf of the petitioners:
P.W.1 : Smt. Hemalatha Witnesses examined on behalf of the respondents : Nil. Documents marked on behalf of the petitioners:
Ex.P.1 FIR
Ex.P.2 Mahazar
Ex.P.3 Sketch
25 SCCH-1
MVC 187/16
Ex.P.4 IMV report
Ex.P.5 PM report
Ex.P.6 Inquest report
Ex.P.7 Chargesheet
Ex.P.8 Pay slips (2 in nos.)
Ex.P.9 Appointment letter
Ex.P.10 Letter issued by Bhuvaneshwari Co-operative viewers
society
Ex.P.11 Notarized copy of Aadhaar card of deceased
Ex.P.12 Notarized copy of Aadhaar card 1st petitioner
Ex.P.13 Notarized copy of Aadhaar card of 2nd petitioner
Ex.P.14 Notarized copy of Aadhaar card of 3rd petitioner
Documents marked on behalf of the respondents: Nil.
(H.P.SANDESH) Member, Prl. M.A.C.T. Bangalore *S.D* ********* 26 SCCH-1 MVC 187/16 AWARD S.C.C.H.NO.1 BEFORE THE PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOILITAN AREA: BANGALORE CITY M.V.C. No. 187/2016 Petitioners: 1. Smt. Hemalatha, W/o. Late Bhaskar, Aged about 44 years,
2. Mr. Harsha H.B., S/o. Late Bhaskar, Aged about 24 years,
3. MS. Bindu Shree H.B., S/o. Late Bhaskar, Aged about 19 years.
All are R/at, No.20/3, 20th Cross, Bhuvaneshwarinagar, Magadi Main Road, Bangalore - 560 0023 (By Sri. Bharath Kumar S., Advocate)
-Vs-
Respondents: 1. Ameer Crane Services, No.100/2, 3rd Cross, Hosur Main Road, Bommanahalli, Bangalore.
(R.C.Owner of Crane bearing Reg.No. KA- 05-MD-264)
2. Tata AIG Insurance Co. Ltd.,