Bangalore District Court
Sri. M.S.Muttu vs Sri.D.Srinivas Murthy on 5 September, 2019
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
BANGALORE. (SCCH-11)
DATED THIS 5th DAY OF SEPTEMBER 2019
SCCH-25
PRESENT: SMT. B.S. RAYANNAWAR, B.A., L.L.B.
I ADDL.SMALL CAUSES JUDGE & MACT
M.V.C No.1440/2016
PETITIONERS: 1. Sri. M.S.Muttu
S/o Sri.Sathyappa,
Since deceased Rept. by his LR's.
2. Smt.Selvi
W/o Late M.S.Muttu,
No.8/1, 21st Cross,
Aged about 64 years,
Occ:Household,
Bhuvaneshwari Nagar,
Magadi Road.
3. Smt.Sumathi S
W/o Sasikumar N,
Bangalore - 560 023,
Occ: HOusehod,
(Owner of Tempo Traveller
Bearing Reg.No.KA-02-AE-5068).
4. Sri.Kalai Arashan M
S/o Late M.S.Muthu,
Aged about 32 years,
Occ: Building Work.
Petitioner Nos.1 & 3 are
No.28/5, East Wing,
R/at NO.82, 3rd Cross,
2 MVC 1440/2016
SCCH-25
Centenary Building,
Kausarnagar, Sadashivanagara,
M.G - Road,
Bangalore - 560 001.
SVK Nagar, Coimbatore - 641 402.
(Tamilnadu)
(By Sri.K.L.........Advocate)
RESPONDENTS: 1. Sri.D.Srinivas Murthy
S/o Sri.Dodde Gowda,
No.8/1, 21st Cross,
Bhuvaneshwari Nagar,
Magadi Road,
Bangalore - 560 023.
(Owner of Tempo Traveler bearing
Reg.No.KA-02-AE-5068)
(Ex-parte)
2. The Manager
Reliance General Ins. Co., Ltd.,
No.28/5, East Wing,
Centenary Building,
M.G.Road,
Bangalore - 560 001.
(Insurer of Tempo Traveler
Bearing Reg.No.KA-02-AE-5068
Policy : 14095523400001144
Valid: 24.01.2015 to 23.01.2016)
(By Sri. T.N.M..............Advocate)
JUDGMENT
This petition is filed by the petitioners under Section 166 of 3 MVC 1440/2016 SCCH-25 M.V. Act against the respondents claiming compensation of Rs.30,00,000/- for the death of the husband of Petitioner No.2, father of Petitioner Nos.3 and 4 in the accident that occurred on 31.12.2015.
2) The brief facts of the petitioner case as averred in the petition are as under:
That on 31.12.2015 at about 11.50 a.m. the deceased was traveling on Scooter bearing Reg.No.KA-04-HK-8845 on Bellary byepass road, when he reached in front of HP Petrol Bunk, at that time a Tempo Traveler bearing Reg.No.KA-02-AE-5068 came from Devanahalli road in high speed with rash and negligent manner and dashed against deceased Scooter, due to which deceased sustained grievous injuries as stated in column 11 of claim petition. Immediately after the accident he was taken to Prolife hospital, Bengaluru, but unfortunately died in the hospital, due to injuries sustained in accident. Later, Post mortem was conducted and confirmed that the death is caused due to injuries sustained in the accident. So far Petitioners have spent Rs.18,00,000/- towards 4 MVC 1440/2016 SCCH-25 transportation and funeral expenses. The above accident occurred due to rash and negligent driving of the Tempo Traveller bearing Reg.No.KA-02-AE-5068. The Yelahanka jurisdictional police have registered criminal case against the driver the offending vehicle Tempo traveler bearing reg.No.KA-02-AE-5068 in Cr.No.234/2015 under section 279 & 337 of IPC the accident in issue is occurred due to negligent driving of the said offending vehicle. The Respondent No.1 being RC owner and the Respondent No.2 being insurer of the said offending vehicle is liable to pay the compensation to Petitioners. Therefore, they prayed for allowing the petition.
3) After service of notice, Respondent No.1 remained absent and was placed ex-parte. The Respondent No.2 appeared through their counsel and filed the written statement. They have further disputed the manner of the accident, age of the deceased and quantum of the compensation claimed under different heads. They have further contended that, the alleged accident occurred not due to the negligent act of the offending vehicle. Hence, they prayed for dismissal of the petition.5 MVC 1440/2016
SCCH-25
4) On the basis of the above rival pleadings, the following issues have been framed:
1. Whether petitioners prove that, he has sustained injuries on account of road traffic accident took place near H.P.Petrol Bunk, B.B.Service Road, Bypass Yelahanka, Bangalore due to rash and negligent driving of the driver of Tempo Traveler bearing Reg.No.KA-02-AE-5068 dated 31.12.2015 at about 11.50 a.m. as alleged in the petition?
2. Whether the petitioners are entitled for compensation ? If so, how much and from whom?
3. What order or award?
Additional Issue No.1
1. Whether the Petitioner proves that Sri.M.S.Muttu died due to accidental injuries?
5) To prove the petitioners case, petitioner No.4 filed affidavit in lieu of examination in chief and examined as PW.1. Besides his evidence, he has produced 18 documents and got them marked as Ex.P.1 to 18. Kaviyarasu - eye witness examined as PW.2 and not produced any documents. 2nd Respondent examined Pradeep D.S.- working in legal department as RW.1 and produced 2 documents as 6 MVC 1440/2016 SCCH-25 per Exs.R.1 & R.2. One Sureshrao -ASI examined as RW.2 and produced 2 documents as per Ex.R.3 and Ex.R.4 on their behalf.
6) I have heard the arguments of learned counsel appearing for the Petitioners. The learned counsel for the Petitioner relied upon the following citations.
1) 2005 ACJ 433 (Calcutta)
2) 2003 ACJ 1353 (Gujarat)
3) 2001 ACJ 479 (KAR)
4) 2010 Kant.M.A.C.556 (Kant) The learned counsel for the 2nd Respondent relied upon the following citations.
1)Order passed by Hon'ble High Court in MFA1165/2010
2) Judgment passed by Hon'ble S.C. in SLP © No(s) 31406/17
3) Judgment passed by Hon'ble H.C. in MFA Nos.23290 (12CMV),23291 and 23292/12 dt: 10.4.2018
4) Law (SC) 2012 100
5) 2013 (3) TAC 29(SC) 7 MVC 1440/2016 SCCH-25
7) My answers to the above said issues are as follows:
Issue No.1 In the Affirmative;
Additional In the Affirmative;
Issue No.1
Issue No.2 Partly in the Affirmative;
Issue No.3 As per final order, for the following :
-:REASONS:-
8) ISSUE No.1 & ADDITIONAL ISSUE No.1: It is the case of
the PW.1 that, on 31.12.2015 at about 11.50 a.m. the deceased was traveling on Scooter bearing Reg.No.KA-04-HK-8845 on Bellary byepass road, when he reached in front of HP Petrol Bunk, at that time a Tempo Traveler bearing Reg.No.KA-02-AE-5068 came from Devanahalli road inhigh speed with rash and negligent manner and dashed against deceased Scooter, due to which deceased sustained grievous injuries as stated in column 11 of claim petition. Immediately after the accident he was taken to Prolife hospital, Bengaluru, but unfortunately died in the hospital, due to injuries sustained in accident. In the present case accident occurred on 31.12.2015 and M.S.Muttu died on 07.08.2016 their case after the 8 MVC 1440/2016 SCCH-25 death Post Mortem was not conducted. The Petitioner No.2 mother of the PW.1 wife of the deceased aged about 60 years, third Petitioner is married daughter of the deceased. It is denied by the Petitioner that death of M.S.Muttu is due to his old age and not due to the accidental injuries. PW.2 is the eye witness, deposed that the accident caused by Tempo Traveler, during cross-examination PW.2 denied there is head on collusion in between both the vehicles. It is the contention of the Respondent that accident was occurred due to the negligence of the Petitioner. In support of their contention 2nd Respondent examined Investigation officer as RW.2, who denied that, even though the accident occurred due to negligence of the rider of the motorcycle, he submitted false charge sheet against the driver of the offending vehicle. Further RW.2 deposed that, the accused was convicted in criminal case. During cross-examination by the Petitioner advocate RW.2 deposed that " ªÁºÀ£ÀzÀ ZÁ®PÀ¤UÉ HfðvÀªÁzÀ ZÁ®£Á ¥ÀgÀªÁ£ÀV EzÀÝ PÁgÀt¢AzÀ¯Éà DgÉÆÃ¥À ¥ÀnÖAiÀÄ°è F §UÉÎ ªÉÆÃmÁgÀÄ ªÁºÀ£ÀUÀ¼À PÀ®AUÀ¼À£ÀÄß G¯ÉèÃR ªÀiÁr®è JAzÀgÉ ¸Àj.". Hence the contention of the 2nd Respondent that on the date of accident driver of offending vehicle not holding DL is not proved. The Petitioner produced document FIR, 9 MVC 1440/2016 SCCH-25 complaint, Panchanama, rought sketch, IMV report and charge sheet by which reveals that after the accident police filed charge sheet against the driver of the offending vehicle. There is nothing is elicited from the mouth of PW.1 in cross-examination of PWs.1 & 2, by perusal of documents reveals that the deceased sustained injury in the said accident under these circumstances, it can be safely held that, the accident occurred due to the rash and negligent driving of offending vehicle. Hence I answer issue No.1 & additional issue No.1 in the Affirmative.
9) ISSUE No.2:- According to the petitioners, they are the legal heirs and dependents of the deceased. To prove the same, Petitioners have produced Family Tree and Adhar Cards as per Exs.P.12 & P.16 to P.18.
10) Due to the untimely death of the deceased, they lost their dependency. It has come in the evidence of PW.1 that, at the time of the accident deceased was doing Real Estate business and was earning Rs.50,000/- per month. But no supportive documents produced. As admitted by the PW.1 reveals that Petitioner No.3 who 10 MVC 1440/2016 SCCH-25 is daughter of the deceased is married and Petitioner No.4 i.e., PW.1 is also major son and during cross-examination admitted that he is supplying the building construction materials. It shows that the Petitioner Nos.3 & 4 are not dependent on the income of the deceased. Hence, Petitioner Nos.3 & 4 are not considered as not dependents. The Petitioners have produced Exs.P.13 & P.14 bank pass book but there is no uniformity with regard to the income of the deceased every month. However, considering the nature of avocation, age of the deceased and year of accident, I constrain to assess the notional income of the deceased at Rs.8,000/- per month. Hence, considering the date of accident, to assess the loss of dependency this court is taken notional income of the deceased at Rs.8,000/- per month. As per wound certificate Ex.P.6 the age of the deceased was 70 years. Hence, the age of deceased is considered as 70 years to assess loss of dependency, the proper multiplier would be 5 as per Sarla Verma Case. Petitioner No.2 lost her husband, Petitioner Nos.3 & 4 has lost their father. Under the circumstances as per the Decision reported in Supreme court of India in Special Leave Petition (Civil) No.25590 of 2014, (National Insurance Company Limited V/s 11 MVC 1440/2016 SCCH-25 Pranay Sethi and Others), it is just and reasonable to award Rs.15,000/-, Rs.40,000/- and Rs.15,000/- under the heads of loss of estate, loss of consortium and funeral expenses respectively.
11) Income of the deceased is already considered as Rs.8,000/- per month. The Petitioner Nos.3 & 4 are major children and they are not dependant on the deceased income. Hence they are not considered as the dependant of the deceased. The Petitioner No.2 is the wife of the deceased who is dependent of the deceased she will be considered as the dependent of the deceased. As such, if 1/2 of his income has to be deducted towards his personal expenses out of Rs.8,000/- then it would comes to Rs.4,000/- per month (Rs.8,000/- - Rs.4,000/-). Since the deceased was aged about 70 years, the proper multiplier would be 5 as per the ruling reported in:
2009 ACJ 1298 Sarala Varma Vs. Delhi Transport Corporation. So, the loss of dependency would be Rs.2,40,000/- (Rs.4,000/- x 12 X 5 = Rs.2,40,000/-).
12) The PW.1 further stated that, deceased M.S.Muthu was 12 MVC 1440/2016 SCCH-25 admitted to Prolife Hospital, Bangalore, took first aid treatment later admitted to Columbia Hospital, Bangalore, treated conservatively. He use to spend Rs.1,200/- per trip ambulance charges. Due to sever pain again deceased M.S.Muttu was re-admitted to Columbia Asia on 04.08.2016 and on the same day operation was done to his head, due to blood clot he died on 07.08.2016. So far the Petitioners have spent a sum of Rs.20,00,000/- towards transportation, medical and funeral expenses. In this regard the Petitioners have produced medical bills as per Ex.P.15 for a sum of Rs.10,53,726/-, it has to be awarded under the heads of Medical Expenses.
13) Hence, the petitioners are entitled for total compensation under different heads as below:-
1. For loss of Estate Rs. 15,000/-
2. For loss of Consortium Rs. 40,000/-
3. For funeral Expenses Rs. 15,000/-
4. For Loss of Dependency Rs.2,40,000/-
5. Medical Expenses Rs.10,53,726/-
Total Rs.13,63,726/-
13 MVC 1440/2016
SCCH-25
14) While discussing above, I have already come to the
conclusion that, accident occurred due to the rash and negligent driving of the offending vehicle which belongs to the respondent no.1, hence first respondent being the owner and second respondent being the insurer liable to pay the compensation.
Hence, in view of above decisions respondent is liable to pay compensation of Rs.13,63,726/- to the petitioners along with interest at the rate of 9% per annum from the date of petition till its realization. So, I answered issue No.2 partly in the affirmative.
15) ISSUE No.3: In view of the findings given on the above said issues and reasons thereon, I proceed to pass the following:
ORDER Petition filed by the Petitioners u/s 166 of Motor Vehicles Act is hereby partly allowed with costs.
Accordingly, a sum of Rs.13,63,726/- is awarded to the petitioners as compensation with interest at the rate of 9% p.a from the date of petition till the date of realization.
14 MVC 1440/2016
SCCH-25
Respondents 1 & 2 are liable to pay the
compensation to the petitioners.
The Respondent No.2 shall deposit the
compensation amount within 30 days from the date of this order.
In the event of deposit of the said compensation amount apportioned in favour of petitioner No.2, 25% shall be deposited in the name of petitioner No.2, for a period of 3 years in any nationalized bank or scheduled bank and the remaining 75% shall be released in favour of petitioner No.2, on proper identification.
Advocate fee is fixed at Rs.1,000/-.
Office to draw award accordingly.
(Dictated to the stenographer directly on computer, corrected and pronounced by me in open court on this 5th day of September, 2019.) (B.S.RAYANNAWAR) C/C XXIII ADDL.SMALL CAUSES JUDGE ANNEXURE WITNESSES EXAMINED FOR PETITIONERS:
PW.1 - Kalai Arashan.M.
PW.2 - Kaviyarasu
15 MVC 1440/2016
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DOCUMENTS MARKED FOR PETITIONERS:
Ex.P.1 - FIR & complaint
Ex.P.2 - Charge sheet
Ex.P.3 - Panchanama
Ex.P.4 - Sketch
Ex.P.5 - IMV report
Ex.P.6 - Wound certificate
Ex.P.7 - Statement of witnesses (3)
Ex.P.8 & 9 - Discharge summaries (2)
Ex.P.10 - Death summary
Ex.P.11 - Death certificate
Ex.P.12 - Genealogical tree and certificate
Ex.13&14 - Bank pass books (2)
Ex.P.15 - Medical bills
Ex.P.16 to 18 - Notarised copy of Adhar cards (3) WITNESSES EXAMINED FOR RESPONDENTS:
RW.1 - Pradeep.D.S. RW.2 - Sureshrao 16 MVC 1440/2016 SCCH-25 DOCUMENTS MARKED FOR RESPONDENTS: Ex.R.1 Spot sketch Ex.R.2 Reply to Notice u/s.133 Ex.R.3 Notice u/s.133 Ex.R.4 Reply to notice (self attested) C/C XXIII ADDL.SMALL CAUSES JUDGE