Bangalore District Court
) Smt. Padmavathamma vs Universal Sompo General Insurance on 4 June, 2016
1 SCCH-1
MVC No.2131/15
BEFORE THE MEMBER PRL.MOTOR ACCIDENT CLAIMS
TRIBUNAL AT BANGALORE
(S.C.C.H. - 1)
DATED THIS THE 4th DAY OF JUNE 2016
PRESENT : SRI H.P.SANDESH, B.A.L, ., LL.B,
MEMBER, PRL. M.A.C.T.
M.V.C. No.2131/2015
Petitioners: 1) Smt. Padmavathamma,
W/o. Nallappa,
Aged about 42 years.
2) Sri. Nallappa,
S/o. Late Venkatarayappa,
Aged about 46 years.
Both are residing at
Bandakota Village,
Mindigal Post,
Chinthamani Taluk,
Chikkabalappura District - 563125
(By Sri.Chidananda N.M., Advocate)
Vs.
Respondents: 1. Universal Sompo General Insurance
Co., Ltd.,
Express IT Park, Plot No.-EL-94,
T.T.C. Industrial Area,
MIDC Mahape,
Navi, Mumbai - 400710
(Policy No.2315/53693145/01/000
Valid from 24.06.2014 to 23.06.2015)
(By Sri.H.N.Keshavaprashanth, Advocate)
2 SCCH-1
MVC No.2131/15
2. Shantha Kumar,
S/o. Krishnappa,
R/at No.6/2, Appaiah Garden,
1st Cross, Saraswathipuram,
Ulsoor, Bengaluru - 560 008
(Owner of the vehicle)
(Exparte)
**********
JUDGMENT
This petition is filed u/s.166 of M.V.Act 1988 seeking compensation of Rs.25,00,000/- for the death of B.M.Manjunath, son of Petitioner Nos.1 and 2 in the Road traffic accident who took place on 17.09.2014.
2. The brief facts of the case are :
It is the case of the petitioners that, on 17.09.2014 at about 07.00 p.m. when the deceased was proceeding in a motor cycle TVS Sports bearing No.KA-40-S-1337 along with one Ashok to go to Bommanahalli, Hosakote, after taking treatment in MJV hospital by the said Ashok who was unwell and when they reached near Toll, Bengaluru - Kolar Road(NH-4) at Hosakote Town, at that time the driver of the vehicle - Tempo 407 bearing Reg.No. KA-03 AA 1785 drove the same in a rash
3 SCCH-1 MVC No.2131/15 and negligent manner and dashed the vehicle of the deceased, due to which deceased sustained severe injuries all over the body and pillion rider also sustained severely. Immediately deceased was shifted to MVJ hospital in an ambulance, but on the way he succumbed to the injuries.
3. It is further contended that, the claimants are the parents of the deceased and he was aged about 23 years. The deceased was working as an Assembly Engineer at M/s. Honda Motor Cycle and Scooter India Pvt. Ltd., at Hosakote and was earning Rs.9,921/- p.m. and he was contributing his entire income for the maintenance of his family members. The father of the deceased petitioner No.2 is a handicapped and not in a position of earning. On account of the death of deceased the family members lost their son and earning member of the family and they are put into great financial difficulty and untold misery.
4. Further contended that, the Hosakote police have registered case against the driver of the Tempo 407 bearing Reg.No. KA-03-AA 1785 u/s. 279, 337 and 304(A) of IPC. The accident is due to the sole negligence of the driver of the 4 SCCH-1 MVC No.2131/15 offending vehicle and hence the both the Respondents are liable to pay the compensation of Rs.25,00,000/- to them.
5. In pursuance of this claim petition, this Court issued notice against both the respondents. Respondent No.2 remained absent hence he was placed exparte. The respondent No.1 appeared through its counsel and filed its written statement by denying all the averments of the petition. Further contended that, very petition itself is not maintainable before court. Also it has admitted the issuance of policy in favour of the 2nd respondent in respect of the Tempo bearing Reg. No. KA-03-AA- 1785 and liability if any is subjected to the terms and conditions of the policy and also subject to the limits of liability and specifically and empathetically denied the accident.
6. Further contended that, the respondent No.2/insured and the jurisdictional police have not contemplated the statutory obligations as per Sec.134 (C) and 158(6) of M.V.Act. Also, the 2nd respondent has handed over the offending vehicle to the person who was not having valid driving licence, hence there is breach of terms and conditions of the policy. It is further contended that, the accident has occurred 5 SCCH-1 MVC No.2131/15 due to the rash and negligent riding of the motor cycle by the deceased and hence it is not responsible to indemnify the owner. Further this respondent seeks protection u/s.147 and 149 of M.V.Act.
7. It is contended that, petitioners have to prove the age, occupation, relationship with the deceased, occurrence of the accident, involvement of the vehicles in the alleged accident, expenses made towards funeral and other incidental expenses.
8. Further the respondent No.1 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.
9. Based on the pleadings, this Court has framed the following:-
ISSUES
1. Whether the petitioners proves that the deceased succumbed to injuries in a Motor Vehicle Accident that occurred on 17.09.2014 at about 07.00 p.m. near Toll, Bengaluru-Kolar Road, NH-4, Hosakote Town, Bangalore within the jurisdiction of Hosakote Police Station on account of rash and negligent driving of the Tata Motors SFC 407 bearing Reg. No. KA-03-AA-1785 by its driver?
2. Whether the Petitioner is entitled for compensation? If so, how much and from whom?
6 SCCH-1 MVC No.2131/15
3. What order?
10. In order to prove their claim, the 2nd petitioner is examined as PW-1, and a witness as PW.2 and they got marked the documents Ex.P.1 to 21. On the other hand respondents have not adduced any evidence before the Court.
11. 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 ... Partly in the affirmative
3. Issue No.3 ... As per final order For the following:
REASONS
12. Issue No.1: It is the case of the petitioners that, on 17.09.2014 at about 07.00 p.m. when the deceased was proceeding in a motor cycle TVS Sports bearing No.KA-40-S- 1337 along with one Ashok to go to Bommanahalli after taking treatment in MJV hospital by the said Ashok who was unwell and when they reached near Toll, Bengaluru - Kolar Road(NH-4) at Hosakote Town, the driver of the vehicle - Tempo 407 bearing Reg.No. KA-03 AA 1785 drove the same in a rash and negligent 7 SCCH-1 MVC No.2131/15 manner and dashed the vehicle of the deceased, due to which deceased sustained severe injuries all over the body and pillion rider also sustained severely. Immediately deceased was shifted to MVJ hospital in an ambulance, but on the way he succumbed to the injuries.
13. The petitioners in order to prove their contention, they have examined the 2nd petitioner as PW.1 and he reiterated the averments of the petition and got marked the documents Ex.P.1 to 4 i.e. FIR, Mahazar, IMV Report, Charge Sheet.
14. The PW.1 was subjected to cross examination and in the cross examination it was elicited that, he did not witness the accident. It is suggested that, the accident was occurred due to negligence of his son and not the driver of the offending vehicle and the same was denied. He says, his son was returning from the hospital on the date of the accident and he was riding the motor cycle. It is suggested that, his son was not having the Driving License and tried to learn the riding of motor cycle and in that process he fell down and sustained the injuries and the same was denied. On the other hand 8 SCCH-1 MVC No.2131/15 respondents have not led any evidence before the court to prove their contention.
15. 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 has occurred due to the negligence on the part of the driver of the Tempo bearing Reg. No. KA-03/AA-1785.
16. Petitioners have relied upon Ex.P1 FIR and on perusal of FIR it discloses that, this FIR was registered based on the complaint of Ashok who is an eye witness to the accident and in the complaint he has made an allegation against the driver of the Tempo contending that the tempo driver drove the same in a rash and negligence manner, as a result, there occurred an accident and in the accident, they sustained injuries and rider of their motorcycle died.
17. The petitioners have also relied upon the IMV report which is marked as Ex.P3 and it discloses that, the TATA 407 bearing Reg. No. KA-03-AA-1785 has sustained damages i.e., the rear bumper found pulled towards back at left side, rear wheel mudguard of left side and left side tail lamp set were 9 SCCH-1 MVC No.2131/15 damaged. As far as motorcycle is concerned, front fork, handle bar, head light assembly, front wheel mudguard damaged and crash guard found bent at left side, left side body, rear view mirror and front indicator were damaged.
18. On perusal of the Ex.P2 Mahazar, it appears that there is a U turn at the spot of accident. When the motorcycle, driven by the deceased and complainant as pillion rider came near the spot, Tempo driver took U turn without giving any signal or indication. This negligent act on the part of the driver of Tempo has lead to collusion between the two vehicles, in as much as, the front portion of the motorcycle collided with left side back portion of the tempo, as can be seen from the IMV Report. A driver of a vehicle is expected to keep his anticipatory reflex geared to be able to stop the vehicle at a short distance, in case of emergence. In this case, the driver of the Tempo, not only took U turn without giving any signal, but also went to the left side of the road. If the driver of the tempo had taken sufficient care and caution before taking U turn, the accident would not have occurred.
10 SCCH-1 MVC No.2131/15
19. It is further important to note that, the respondent No.1 though taken the defence that, there is no negligence on the part of the driver of the offending vehicle and the accident has occurred due to the negligence of the rider of the motor cycle, they would have examined the driver of the offending vehicle who is the right person to speak with regard to the negligence on the part of the deceased. Apart from that, the police have also filed Charge Sheet against the driver of the offending vehicle as per Ex.P4. In order to come to the conclusion of contributory negligence, there must be rebuttal and 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 ...."
20. In view of the judgment referred supra in the absence of cogent evidence as against the evidence of PW.1, I am of the opinion that the petitioners have proved that the accident was occurred due to the negligence on the part of the 11 SCCH-1 MVC No.2131/15 driver of the Tata Motors SFC 407 bearing Reg. No. KA-03-AA- 1785. Hence issue No.1 is answered in the Affirmative.
21. Issue No.2:- The petitioner who has been examined as PW.1 in his evidence has reiterated the averments of the petition. Also it is their case that, the deceased was aged about 23 years at the time of the accident and he was a bachelor and was working as Assembly Engineer at M/s. Honda motor cycle and Scooter India Pvt. Ltd., at Hosakote and earning Rs.9,921/- p.m. and he was contributing his entire income to the family maintenance.
22. In support of their claim petitioners have also produced PF list as Ex.P5, Inquest Report as Ex.P6, Ex.P7 Death Certificate, Ex.P8 PM report, Ex.P9 Pay-slips of the deceased, Ex.P10 Employment certificate, Ex.P11 Ration Card, Ex.P12 PAN card, Ex.P13 SSLC Marks card of the deceased, Ex.P14 training certificate, Ex.P15 and 16 notarised copy of Voter ID cards of petitioners, Ex.P17 Genealogical tree, Ex.P18 for having paid the B-extract charges, Ex.P19 B Extract online copy.
12 SCCH-1 MVC No.2131/15
23. The PW.1 was subjected to cross examination and in the cross examination he admits that, the deceased is his son and he has done ITI. It is suggested that, his son was not getting the salary of Rs.9,921/- and falsely claiming the same and the same was denied. Further he says that, he does not know whether he was an income tax assessee or not. Now he is 46 year old. It is suggested that, as per the records produced by him he is aged more than 60 years and he is falsely claiming as 46 years and the same was denied. It is suggested that, himself and his wife were earning and not depended on the income of their son and the same was denied.
24. With regard to the income is concerned, the petitioners have also relied upon the evidence of PW.2 who is the Client Relationship Officer at M/s. Honda Motor cycle and Scooter India Pvt. Ltd., He says, the deceased has joined in the year 2014. He got the salary at around Rs.12,000/- in the previous month. Rs.226/- was paid towards OT in the month of August. He admits that, if the employee works over time he will get the additional salary. If the employee works for a period of 26 days in a month, they make Rs.1,000/- additional payment. 13 SCCH-1 MVC No.2131/15 The canteen deduction is also subject to the number of days he works. They were crediting the salary to his bank account. PW.2 has got marked the document Ex.P21 Pay slip for the month of September 2014.
25. Now let me appreciate both oral and documentary evidence available before the court.
26. With regard to the relationship with the deceased is concerned petitioners have relied upon the Ex.P11 Ration Card, Ex.P15 and 16 Voter ID cards of petitioners No.1 and 2. Ex.P17 Genealogical tree and all these documents disclose that, the deceased is the son of petitioners No.1 and 2.
27. With regard to the age is concerned petitioners have produced SSLC Marks Card of the deceased which is marked as Ex.P13 and it discloses the date of birth of the deceased as 06.04.1991 and the accident was occurred on 17.09.2014, hence at the time of the accident the deceased was running 24 years. For having taken note of the Date of birth which is mentioned in the SSLC marks card, as on the date of the accident he was aged about 24 years. In the recent judgment 14 SCCH-1 MVC No.2131/15 reported in 2015 AIR SCW 3105 (Munna Lal Jain and another Vs.Vipin Kumar Sharma and others) "Compensation - Computation of - Deduction towards personal and living expenses - No exceptional circumstances or compelling reasons for deviation on basis of evidence - Deceased being of the age of 30 years - Deduction of 50% towards personal and living expenses is proper."
"Compensation of - Multiplier - Depend on age of deceased alone - Age of deceased was between 26 to 30 years at the time of accident - Proper multiplier is 17"
In view of the judgment referred supra, the age of the deceased was 24 years at the time of the accident and the relevant multiplier applicable to the case on hand is 18.
28. 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.
29. In the case on hand it is contended that, the deceased was working as an Assembly Engineer at M/s. Honda motor cycle and Scooter India Pvt. Ltd., and earning Rs.9,921/- p.m. To prove their contention the petitioners have examined 15 SCCH-1 MVC No.2131/15 the PW.2 who is the Client Relationship Officer at M/s. Honda Motor Cycle and Scooter India Pvt. Ltd., and in the Affidavit he says that, the deceased was working as Assemble Engineer/Semiskilled Operator in their company and his last gross salary for the month of July was Rs.12,157/-. In the cross examination he says that, decease got the salary at around Rs.12,000/- p.m. in the previous month and if the employee works in a over time, he will get the additional salary. On perusal of Ex.P9, 10 it is clear that, deceased was deputed through Essential Outsourcing Services to work in M/s. Honda motor cycle and scooter Pvt., ltd., as Assembly Engineer. Ex.P14 Certificate issued by CNC Centre discloses that, the deceased has taken training in the said Institute in the Fitter Trade. Hence it is clear that he was working as Assembly Engineer. On perusal of Ex.P9 and Ex.P21 Pay slips of the deceased, the deceased has drawn net salary in the month of January - Rs.9,921/-, July - Rs.12,157/-, August - Rs.8,506/- and in the month of September the salary was paid for 10 days as Rs.3,090/-.
16 SCCH-1 MVC No.2131/15
30. Also I would like to rely upon the judgment of Hon'ble High Court reported in MFA 2662/13 disposed off on 30th August 2013. In this case the injured was a driver and the income is taken as Rs.9,000/- p.m.
31. In the case on hand it is an admitted fact that, the deceased has taken training in Fitter trade and was working as an Assembly Engineer. Hence for having taken note that the deceased was doing skilled job and by taking into note of the judgment referred supra, the average income of the deceased is taken as Rs.9,000/- per month, 50% of loss of future prospectus which works out to Rs.4,500/- and thus the total works out to Rs.13,500/-. p.m. (9,000 + 4,500).
32. In the recent judgment of Apex court in 2009 ACJ 1298 (Sarala Varma Vs. Delhi Transport Corporation) it is held that, if the deceased is a bachelor 50% of the income has to be deducted towards personal expenses. Hence, 50% of the income of the deceased is to be deducted for personal expenses i.e., Rs.6,750/-. It comes to Rs.6,750/- (13,500-6,750). Thus, the annual loss of dependency works out to Rs.81,000/- (6,750x12) and if we multiply the said amount by the 18 17 SCCH-1 MVC No.2131/15 multiplier applicable to the case on hand, it works out to Rs.14,58,000/-, (81,000x18) to which the petitioners are entitled to under the head 'Loss of dependency'.
33. The Apex Court, in the case reported in 2013 ACJ 5800 (Sanobanu Nazirbhai Mirza Vs. Ahmedbad Municipal Transport Service) and also in the recent judgment reported in AIR 2014 SUPREME COURT 706 (Puttamma Vs. Narayana Reddy) awarded Rs.1,00,000/- as compensation to the family members (children and family members other than wife) for loss of love and affection, deprivation of protection, social security etc., and Rs.50,000/- as compensation to the widow of the deceased for loss of love and affection, pains and sufferings, loss of consortium, deprivation of protection, social security etc., and Rs.10,000/- towards cost incurred on account of funeral and ritual expenses.
34. In this case since the deceased has left behind his parents, 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.10,000/- 18 SCCH-1 MVC No.2131/15 towards cost incurred on account of funeral and ritual expenses.
35. The details of compensation I propose to award are as under:
Sl.No. Head of Compensation Amount/Rs.
1. Loss of dependency 14,58,000-00
2. Compensation to the 1,00,000-00 family members (children and family members other than wife) for loss of love and affection, deprivation of protection, social security etc.
3. Cost incurred on account 10,000-00 of funeral and ritual expenses Total 15,68,000-00 In all the Petitioner is entitled for compensation of Rs. 15,68,000/-.
36. Interest:
Relying upon a judgment of the Apex Court reported in 2013 AIR SCW 5375 (Minu Rout and others Vs. Satya Pradyumna Mohapatra and others), with regard to interest at the rate of 9% p.a. on the compensation amount, in para 13 of the judgment, the Apex Court held that Insurance Company is also liable to pay interest at the rate of 9% p.a. from the date of 19 SCCH-1 MVC No.2131/15 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.
37. Liability:
While answering issue No.1 it is held that the accident has occurred on account of rash and negligent driving of the Tata Motors SFC 407 bearing Reg. No. KA-03-AA-1785 by its driver.
The respondent No.2 being the owner and respondent No.1 being the insurer of 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.1 Insurance Company. Accordingly, issue No.2 is answered. 20 SCCH-1 MVC No.2131/15
38. Issue No.3: 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.15,68,000/- 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.1 - 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 - Mother - 50%
Petitioner No.2 - Father - 50%
Out of the compensation amount so apportioned in favour of the petitioner No.1 and 2, 50% amount with proportionate interest is ordered to be released to them and remaining 50% is to be invested in high yielding fixed deposit in the name of petitioner No.1 for a period of 5 years and petitioner No.2 for a period of 3 years in any of 21 SCCH-1 MVC No.2131/15 the nationalized or scheduled bank of their choice with liberty to draw the accrued interest periodically.
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 04th day of June 2016) (H.P.SANDESH) Member, Prl. M.A.C.T. Bangalore ANNEXURES Witnesses examined on behalf of the petitioners:
P.W.1 : Nallappa
P.W.2 : Channakeshava H.V.
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 : IMV report
Ex.P-4 : Chargesheet
Ex.P-5 : PF list
Ex.P-6 : Inquest report
Ex.P-7 : Death certificate
Ex.P-8 : PM report
22 SCCH-1
MVC No.2131/15
Ex.P.9 : 3 Pay slips of the deceased
Ex.P.10 : Employment certificate
Ex.P.11 : Notarized copy of ration card
Ex.P.12 : Notarized copy of PAN card
Ex.P.13 : Notarized copy of SSLC marks card
Ex.P.14 : Notarized copy of training certificate
Ex.P.15 & 16: Notarized copy of voter ID card of petitioner No.1 & 2 Ex.P.17 : Genealogical tree Ex.P.18 : Receipt for having paid the B extract charges Ex.P.19 : B extract online copy Ex.P.20 : Authorization letter Ex.P.21 : Pay slip for the month of September 2014 Documents marked on behalf of the respondents: -Nil-
(H.P.SANDESH) Member, Prl. M.A.C.T. Bangalore *S.D.* **********