Bangalore District Court
Rs. 2 vs Insurance Company. In The Light on 2 February, 2016
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 2nd day of February, 2016.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com.,LL.B.(Spl.),L.L.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C.No.654/2014
1. Smt. Latha Mani, ..... PETITIONERS
W/o Late R. Mahadeva,
Aged 34 years.
2. Kumari M.Manasa,
D/o Late R. Mahadeva,
Aged 11 years.
3. Master M. Deepak,
S/o Late R. Mahadeva,
Aged 6 years.
4. Smt.Puttamma,
W/o Late R.Ramaiah,
Aged about 65 years.
All are R/at No.35,
1st Main, K.P. Agrahara,
Bangalore - 560 023.
Since the Petitioners No.2 and 3 are
minor, they are represented through
mother and natural guardian M.N.Latha
Mani, the Petitioner No.1.
(By Sri. M. V. Murthy, Adv.,)
2 M.V.C.NO.654/2014
(SCCH-7)
V/s
1. Sri. Pradeep. B. R., .....RESPONDENTS
S/o Rajanarasimha Shetty,
M/s. SLR Travels,
Indranagar,
Huliyar,
C.N.Halli Taluk,
Tumkur District.
(R.C. Owner of the Bus bearing
Registration No.KA-44-1998)
2. IFFCO TOKIO General Insurance
Co. Ltd.,
Represented by its Manager,
3rd Floor, 'Sudev Plaza'
Opp: Shri Laxmi Temple,
Dajibanpeth,
Hubli - 580 029.
(Insurance Policy No.1-1XRLYE/P400
83070264, valid from 19.02.2013 to
18.02.2014)
(R-1 Exparte)
(R.2 By Sri. S. Maheshwara, Adv.,)
JUDGMENT
The Petitioners No.1 to 4 have filed the present petition as against the Respondents No.1 and 2 under Section 166 of the Motor Vehicles Act, 1989, praying to award compensation of Rupees 39,30,000/- with interest at the rate of 12% p.a., with 3 M.V.C.NO.654/2014 (SCCH-7) costs in respect of death of Sri.R.Mahadeva S/o Sri. Late R. Ramaiah.
2. The brief averments of the Petitioners' case are as follows;
a) On 17.10.2013 at about 0.30 a.m., the deceased R.Mahadeva was sleeping along with the tourist and visitors in thevopen field at AKKA NAGALAMBIKA TEMPLE, Kudalasangama, Hungund Taluk, Bangalore. There was no boarding place were available because of some special Mahothsava was celebrating in Kudalasangama and the deceased and other visitors having no other alternative, they were sleeping in the field, which is meant for utility place for devotees and visitors. At that time, a Bus bearing Registration No.KA-44-1998, which belongs to the Respondent No.1 was driven by its driver by reverse direction with great speed, rash and negligent manner, endangering to human life and he drove his vehicle unmindfully without the assistance of the Conductor or Cleaner and drove his vehicle over the deceased and another tourist by name, Anil Kumar, who were sleeping there. Consequent to the terrific impact, the deceased sustained multiple grievous injuries and succumbed to the fatal injuries on spot.
b) They attributes the cause of the accident to the rash and negligent manner of driving of the Bus bearing Registration No.KA-44-1998 by its driver, subsequently, on the same day, post mortem was done at Hungund General Hospital and shifted the 4 M.V.C.NO.654/2014 (SCCH-7) dead body to Bangalore and the deceased was cremated as per Hindu rites at Bangalore.
c) Prior to the date of the accident, the deceased was hale and healthy and he was working as a Travel Advisor/Tour Manager, at M/s. Jatin Tours and Travels, Bangalore and he was earning income of Rupees 20,000/- per month from his employment. The deceased had a very brightly carrier and future prospects and good earning capacity.
d) The deceased was the only earning member in their family and he was contributing his entire income to them for their maintenance. The deceased was very much helpful to them in all aspects, particularly for great financial help and he would be continued making very valuable monetary contributions to them.
e) The first claimant is the wife and she is not working anywhere and she is a house wife. The second claimant is 11 years old daughter and the 3rd claimant is aged 6 years, both of them studying at Gurukula International School, No.52/4, 9th Cross, Magadi Road, Bangalore, in 6th and 2nd Standard respectively. The Claimant No.4 is the mother of the deceased and she is suffering from several deceases.
f) They have no sources of income and they are totally depending upon the deceased for their livelihood and for their daily needs. In view of the unfortunate demise of the deceased, they are undergoing untold hardship, great suffering and mental 5 M.V.C.NO.654/2014 (SCCH-7) agony. Their conditions have become very pathetic, miserable, exposing to untold hardship and they are struggling very hard for their livelihood.
g) The first claimant lost the company of the beloved husband, the 2nd and 3rd claimants have lost love and affection and care of their father and the 4th claimant lost her beloved son, who is taking care of her health.
h) They spent a sum of Rupees 20,000/- to shift the dead body from Hungund to Bangalore. They further spent a sum of Rupees 50,000/- towards the funeral and obsequies ceremonies of the deceased and claims the same from the Respondents.
i) The said accident occurred solely due to the rash and negligent driving of the driver of the Bus bearing Registration No.KA-44-1998, which belongs to the first Respondent. The Hungund Police have registered a case as against the driver of the offending vehicle under Crime No.190/2013 and after completion of the investigation, they have filed a Charge Sheet under Section 279, 338 and 304-A of IPC as against the driver.
j) The Respondent No.1 is the owner and the Respondent No.2 is the insurer of the offending vehicle and the insurance is in force as on the date of the accident. Hence, both the Respondents are jointly and severally liable to pay the compensation as claimed hereunder;
i) Towards Loss of Dependency Rs. 33,60,000/-
6 M.V.C.NO.654/2014(SCCH-7)
ii) Towards Loss of Expectation of life Rs. 2,00,000/-
iii) Loss of consortium Rs. 1,00,000/-
iv) Funeral and Obsequies
ceremonies Rs. 70,000/-
v) Loss of Love and Affection of
claimants Rs. 2,00,000/-
Total Rs. 39,30,000/-
k) They declare that, they have not filed any other case or
claim petition in respect of the same accident except the present claim petition as against the Respondents either in past or present before the any Court, Tribunal, Forum or Authorities. Hence, this petition.
3. Though the notice was duly served on the Respondent No.1, he was remained absent and hence, he is placed as exparte on 05.04.2014.
4. In response to the notice, the Respondent No.2 has appeared before this Tribunal through its Learned Counsel. But, initially, inspite of giving sufficient opportunities, the Respondent No.2 had not filed the written statement. Later, as per the Order dated 09.12.2014 passed on I.A.No.I, the written statement filed by the Respondent No.2 is taken on file.
5. The Respondent No.2 inter-alia denying the entire case of the Petitioners, has further contended as follows;
7 M.V.C.NO.654/2014(SCCH-7)
a) At the very out-set, the petition is not maintainable either in law or on facts of case.
b) It has issued the alleged Policy bearing No.83070264 as against the alleged Bus bearing Registration No.KA-44-1988, valid from 19.02.2013 to 18.02.2014. However, the liability/obligation of it shall be strictly subject to the terms and conditions, exceptions and limits and endorsements of/to the policy compliance of 64 VB of the Insurance Act and law governing thereto and also the other enactments corresponding to the incident and other aspects and matters involved in adjudicating the matter and finally ascertainment of the liability of them.
c) Without prejudice, without admitting the alleged accident and involvement of the said vehicle, when the Petitioners claims are examined there is contributory negligence on the part of the deceased, in occurrence of the alleged accident. The Petitioners are called upon to prove that, there was no violation of traffic rules on the part of deceased. Therefore, the Petitioners are put to strict proof that, there is no contributory negligence on the part of deceased to any extent, in occurrence of the alleged accident.
d) Without prejudice, the Petitioners are put to strict proof that, the driver of the alleged Bus and had valid and effective driving licence to drive the class of vehicle and he is not disqualified to drive the same. The insured, i.e., the Respondent No.1 has knowingly entrusted the insured vehicle to the driver, 8 M.V.C.NO.654/2014 (SCCH-7) who had no valid and effective driving licence. Therefore, the insured has consciously breached the terms and conditions of the policy and absolved it from indemnifying the liability, if any, under the alleged cause of action.
e) It may kindly be permitted to avail all or any of the defences available to the insured, under the circumstances enunciated under Section 170 of the M.V. Act, 1988 and also to amend the Written Statement under the changed circumstances of the case as the copies of the documents, on which, the Petitioners would rely are not specifically and emphatically denied, corresponding to the alleged accident and their eligibility to claim the compensation.
f) It is not award of the claimed relationship of the Petitioners to the alleged deceased and hence, the Petitioner are put to strict proof of the same.
g) Even if the Petitioners prove their claimed relationship with the deceased, the amount as claimed is highly exaggerated and baselessly claimed. The Petitioners are not entitled for the same.
h) The Petitioners put to strict proof that, they have not filed any other petition before any Tribunal/Authority and they are the legal representatives and they alone are the legal heirs of the alleged deceased.
9 M.V.C.NO.654/2014(SCCH-7)
i) As per Section 158(6) of the M.V. Act, 1988, it is a mandatory duty of the concerned Police Station to forward all the relevant documents to the concerned insurer within 30 days from the date of the information, but, the jurisdictional Police have failed to forward the documents and not obeyed/complied with the statutory responsibility and obligation, hence, it is unable to file comprehensive Written Statement. Hence, this Hon'ble Tribunal may kindly be pleased to direct them to produce all the documents and furnish copies of the same to it and permit it to file further comprehensive Written Statement later.
j) As per Section 134(c) of the M.V. Act 1988, it is the mandatory duty of the insured/Respondent No.1 to furnish the particulars of Policy, date, time and place of accident, particulars of injured and the name of the driver and particulars of the driving license but the insured/Respondent No.1 has not complied with statutory and contractual obligation/requirement. Hence, it is not liable to indemnify any amount to him, as against the alleged cause of action, even if the Petitioners establish their claim and hence, the case is liable to be dismissed as against it for non- compliance of statutory contractual obligations.
k) Without prejudice, the policy insurance is issued subject to the terms and conditions and the insured was/is obligated to satisfy and act in accordance with Sections 3 and 66 of M.V. Act, 1988 and Rule 3 of the Central Motor Vehicles Rules and also subject to limits and defences under Sections 147 and 149 of the said Act. There is no obligation on the part of it to 10 M.V.C.NO.654/2014 (SCCH-7) indemnify the liability of the insured, i.e., the Respondent No.1 under the said Policy unless the Petitioners prove the liability and obligation of it. The said Bus was plying without valid permit, fitness certificate and the insured was consciously plying the said Bus by violating the terms and conditions of the Policy and law.
l) Without prejudice and saving rights, in the event of the petition being allowed to any extent, the rate of interest may kindly be restricted to 6%. Hence, prayed to dismiss the petition.
6. Based on the above said pleadings, I have framed the following Issues;
ISSUES
1. Whether the Petitioners prove that, they are the dependents and legal representatives of deceased SRI.
R.MAHADEVA?
2. Whether the Petitioners prove that, the accident occurred due to rash and negligent driving of the Bus bearing Registration No.KA-44-
1998 by its driver and Sri.R.Mahadeva died due to the injuries sustained in the accident?
3. Whether the Petitioners are entitled for compensation? If so, how much and from whom?
4. What Order?
11 M.V.C.NO.654/2014(SCCH-7)
7. In order to prove their case, the Petitioners have examined the Petitioner No.1 as P.W.1 and have also examined one witness as P.W.2 by filing the affidavits as their examination- in-chief and have placed reliance upon Ex.P.1 to Ex.P.21 and Ex.P.22. On the other hand, the Respondent No.2 has examined its Assistant Executive Legal as R.W.1 and has also examined ARTO, Tumkur as R.W.2 and has placed reliance upon Ex.R.1 to Ex.R.3. Ex.P.22 is marked during the course of cross-examination of R.W.1, by confrontation.
8. Heard the arguments.
9. In support of the submission, the Learned Counsel appearing for the Petitioners Sri.M.V.Murthy has placed reliance upon the decisions reported in,
i) 2014 ACJ 1565 Supreme Court of India at New Delhi (Anjani Singh and Others V/s Salauddin and others), wherein, it is observed that, Quantum-Fatal accident - Deceased aged 35, Sergeant in Air Force, drawing Rupees 4,020 per month-Claimants: widow, 3 minor children and parent-Tribunal assessed income at Rupees 4,030, deducted 1/3rd for personal expenses of the deceased, adopted multiplier of 8 on the ground that, age of superannuation in Air Force if 45-50 years and awarded Rupees 2,49,600-High Court deducted 1/4th for personal expenses, adopted multiplier of 10 and allowed Rupees 3,70,200- Apex Court added 50 percent of 12 M.V.C.NO.654/2014 (SCCH-7) salary for future prospects, deducted 1/4th for personal expenses, adopted multiplier of 16 and allowed Rupees 8,70,528 plus Rupees 25,000/- towards funeral expense, Rupees 1,0,000/- towards loss of love and affection, Rupees 1,00,000/- towards loss of consortium and Rupees 25,000/- for cost of litigation-Award of Rupees 3,70,300/-
enhanced to Rupees 11,20,528/- (2009 ACJ 1298(SC) and 2013 ACJ 1403 (SC) followed.
Quantum- Interest-Allowed at the rate of 9 percent per annum from the date of claim application till the date of payment (2012 ACJ 48 (SC) followed.
ii) 2014 ACJ 1388 Supreme Court of India at New Delhi (Kalpana Raj and Others V/s Tamil Nadu State Transport Corporation), wherein, it is observed that, Quantum-Fatal accident - Deceased aged 46, earning Rupees 7,330 p.m.-
Claimants: widow and 2 minor children-
Tribunal on the basis of statement of widow fixed the income at Rupees 15,000/- p.m. assessed compensation at Rupees 32,40,000/- but, awarded Rupees 20,90,000 as per claim-High Court assessed income at Rupees 7,330 per month as per income tax return made certain deductions and allowed Rupees 5,76,000-Apex Court taking income at Rupees 7,330 p.m. added 30 per cent for future prospects, deducted 1/3rd for personal expenses, adopted multiplier of 13, allowed Rupees 9,9,016 plus Rupees 1,00,000/- towards loss of consortium, Rupees 1,00,000/- towards loss of love and affection to minor children, Rupees 13 M.V.C.NO.654/2014 (SCCH-7) 1,00,000/- towards loss of estate, Rupees 1,00,000/- towards loss of expectation of life, Rupees 50,000/- for funeral expenses and cost of litigation and Rupees 10,000/- towards damage to Motor Cycle -Award of Rupees 5,76,000 enhanced to Rupees 14,51,000/-.
Quantum- Interest- Allowed at the rate of 9 percent per annum (2012 ACJ 48 (SC) followed).
iii) 2014 ACJ 903 High Court of Karnataka at Bangalore (Amulya Reddy and Others V/s New India Assurance Co. Ltd., and Another), wherein, it is observed that, Quantum-Fatal accident-Deceased aged 35, Senior Systems Engineer in multinational company, drawing Rupees 1,05,400 p.m., Claimants: widow, minor child and parents-Tribunal assessed income at Rupees 20,000 p.m., deducted 1/3rd for persona expenses of the deceased, adopted multiplier of 18 awarded Rupees 43,38,000- Appellate Court assessed income at Rupees 1,05,400/- p.m., added 50 per cent of income for future prospects, deducted Rupees 47,430 p.m., for income tax and Rupees 200/- p.m., for professional tax and fixed income at Rs1,10670/- p.m., deducted 1/4th for personal expenses of the deceased, assessed dependency at Rs 82,853/- p.m., adopted multiplier of 16 and awarded Rupees 1,59,07,776/- plus Rupees 45,000/- under conventional heads-Award of Rupees 43,38,000 enhanced for Rupees 1,59,52,776/-.
14 M.V.C.NO.654/2014(SCCH-7)
iv) 2014 ACJ 1671 High Court of Karnataka, Gulburga (Hema and Others V/s Santoshi Shivaji Deshmukh and Another), wherein, it is observed that, Quantum-Fatal accident - Deceased aged 34, employed in government polytechnic college, drawing Rupees 12,707/- per month-Claimants; widow, minor son, daughter and mother-Tribunal assessed income at Rs.12,867 p.m. and awarded Rupees 12,04,130-Appellate Court after deducting Rupees 200 for professional tax assessed income at Rupees 12,707 p.m added 50 percent of income for future prospects and fixed at Rupees 19,060 per month deducted 1/4th for personal expenses, assessed dependency at Rupees 14,295/-
p.m. adopted multiplier of 15 and awarded Rupees 25,73,200 plus 40,000/- for loss of love and affection Rupees 50,000/- for medical expenses, Rupees 10,000/- for loss of consortium and taking into consideration that, deceased remained Hospitalized for 7 days under shadow of death awarded Rupees 25,000 for pain and sufferings.
Rupees 10,000/- for loss to estate, Rupees 10,000/- for transportation and Rupees 5,000/- for funeral expenses-Award of Rupees 12,04,130 enhanced to Rupees 27,23,200/-.
v) 2014 ACJ 160 High Court of Himachal Pradesh at Shimla (ICICI Lombard General Insurance Co. Ltd V/s Ram Kumar and Others), wherein, it is observed that, Motor Vehicles Act, 1988, Sections 149 (2) (a) (i) (c) and 66-Motor Insurance Policy-
15 M.V.C.NO.654/2014(SCCH-7) Breach of-Permit Route permit-Liability of Insurance Company- pay and recover order- Insurance Company disputes its liability on the ground that, offending vehicle had no route permit on the date of accident-
Tribunal found that, as there was registration certificate of the vehicle and effective and valid driving licence of the driver, vehicle was not being driven in violation of the conditions of policy and muleted liability on the Insurance Company- Whether Insurance Company is liable where offending vehicle was being driven without route permit-Held; no; Insurance Company directed to pay awarded amount to the claimant and thereafter recover it from the owner (2004 ACJ 2094 (SC), 2013 ACJ 1008 (HP), 2008 ACJ 574 (HP) and 2013 ACJ 2785 (HP) followed).
vi) 2014 ACJ 1284 High Court of Chhattisgarh at Bilaspur (Bajaj Allianz General Insurance Co. Ltd V/s Powel Julius and Others), wherein, it is observed that, Motor Vehicles Act, 1988, Section 149 (1) (a) (i) (c)-Motor Insurance Permit-Violation of -Liability of Insurance Company-
Insurance Company disputes its liability on the ground that, offending Jeep was being plied in Raipur District whereas permit was issued for Kanker District thus the vehicle was plied on route not covered by the permit-fixing of the route and timings would amount to providing restrictions in the manner of plying the vehicle as a stage carriage but, these restrictions in the manner of plying the vehicle as a stage carriage but, these restrictions have nothing 16 M.V.C.NO.654/2014 (SCCH-7) to do with the purpose for which the permit is granted-Plying the offending Jeep on any of the routes not specified n the permit would amount to breach of condition of permit but, it is not a breach of purpose for which it was issued-Whether there was breach of policy and Insurance Company is absolved from liability-Held; no.
vii) 2014 ACJ 2711 High Court of Karnataka, Bangalore (Rangappa V/s Jayaramaiah and Another), wherein, it is observed that, Motor Vehicles Act, 1988, section 149(2) Motor insurance- fitness certificate Expiry of-Liability of Insurance Company-Tribunal fastened liability on the owner of offending vehicle and exonerated the Insurance Company on the ground that, fitness certificate issued to the offending vehicle had expired prior to the accident- Insurance Company should not insure vehicle which did not possess fitness certificate and after collecting premium and insuring the vehicle cannot deny its liability towards the claimants on the ground of non-possession of fitness certificate by the offending vehicle- whether Insurance Company has to satisfy the award in favour of claimants and then recover the same from the owner-insured- Held: yes.
10. In support of the submission, the Learned Counsel appearing for the Respondent No.2, Sri.S.Maheswara has placed reliance upon the decisions reported in, 17 M.V.C.NO.654/2014 (SCCH-7)
i) M.F.A.No.9582 of 2007 (MV) High Court of Karnataka, Bangalore (Sri.B.T.Venkatesh V/s Sri.Jagadeesh Kumar and others), wherein, it is observed that,
6. So far as fastening the liability on Insurance Company is concerned, the findings of the Tribunal is clear that, there is violation of the policy conditions by the owner and driver of the offending Auto Rickshaw which is insured with the 3rd Respondent Insurance Company. In the light of the policy conditions being violated, the question of fastening the liability on the Insurance Company to indemnify the liability of paying compensation does not arise for consideration. Accordingly, the findings of the Tribunal in restricting the liability to pay the compensation on the owner of the offending Auto Rickshaw appears to be just and proper and same does not call for any interference in this appeal. Accordingly, the appeal filed by the claimant fails on both the grounds and it is dismissed without any order as to costs.
ii) M.F.A.No.7723of 2011 (MV) High Court of Karnataka, Bangalore (Smt. Kempamma @ Chikkatayamma V/s Ramesh and Another), wherein, it is observed that, Tribunal has absolved the insurer of indemnifying the claim on the ground that, there was violation of permit condition and has directed the owner to indemnify the claim.
7. Fact that, the accident in question occurred at Malavalli Taluk is not in dispute. It is also not in dispute that, said offending 18 M.V.C.NO.654/2014 (SCCH-7) vehicle was issued with policy by appellant. Insurer as per Ex.R.1 Though a plea was raised that, drive did not possess a valid driving licence and negatived by tribunal and this court is not embarking upon enquiry to find out as to whether said finding is erroneous or otherwise since such plea is not raised by insurer. In the instant case permit issued to offending vehicle was produced and marked as Ex.R.3 before Tribunal. Perusal of same would indicate that, said permit issued to the offending vehicle had to be plied within the jurisdiction of Channapatna Taluk. As already discussed herein above the vehicle in question was plying beyond the jurisdiction of Channapatna Taluk., In other words it was Plying at Malavalli Taluk. As to whether violation of permit condition would be a defence available to the insurer or not, is no more res integra as held in the case of National Insurance Company Ltd., V/s Challa Bharathamma and others reported in 2004 ACJ 2094 where under similar factual matrix was present and their Lordships having adjudicated such a claim has answered as under:
"11. As was observed in the said case the statutory defences which are available to the insurer to contest the claim are confined to those provided in sub section (2) of section
149.
12. High Court was of the view that, since there was no permit, the question of violation of any condition thereof does not arise. The view is clearly fallacious. A person without permit to ply a vehicle cannot be placed at a better pedestal vis-a-vis one who has no permit, but, has violated any 19 M.V.C.NO.654/2014 (SCCH-7) condition thereof. Plying of a vehicle without a permit is an infraction. Therefore, in terms of section 149(2) defence is available to the insurer on that aspect. The acceptability of the stand is a matter of adjudication. The question f policy being operative had no relevance for the issue regarding liability of insurer. High Court was, therefore, not justified in holding the insurer liable"
8. In view of the Judgment of Apex Court referred to herein above it cannot be said that, the words used in clause (c) of 149(2)(a)(i) has to be read in the context of use of vehicle and not relating to violation of permit condition. Violation of permit condition is a defence available to the insurer. In fact Division Bench of this Court in unreported Judgment in the case of B.T.Venkatesh Vs. Jagadeesh Kumar and others in MFA No.9582/2007 disposed of on 24.08.2012 has held as follows:
6. So far as fastening the liability on Insurance Company is concerned, the findings of the Tribunal is clear that,, there is violation of the policy conditions by the owner and driver of the offending Auto Rickshaw which is insured with the 3rd Respondent Insurance Company. In the light of the policy conditions being violated, the question of fastening the liability on the Insurance Company to indemnify the liability of paying compensation does not arise for consideration. Accordingly, the findings of the Tribunal in restricting the liability to pay the compensation on the owner of the offending Auto Rickshaw appears to be just and proper and same does not call for any interference in this appeal. Accordingly, the appeal filed by the claimant fails on both the 20 M.V.C.NO.654/2014 (SCCH-7) grounds and it is dismissed without any order as to costs."
9. So also Complainant-ordinate Bench of this court in MFA 8742/2008 disposed of on 09.10.2012 and MFA 226/2010 disposed of on 23.11.2010 has applied the principles laid down by Apex Court and accepted the plea put forward by insurer, namely it is entitled to contend violation of permit condition as a ground to stave of its liability.
In that, view of the matter, I am not inclined to accept the submission made by Sri.K.T.Gurudeva Prasad, Learned Counsel appearing for claimant and it stands rejected.
10. Tribunal on appreciation of evidence tendered by the insurer has found as per Ex.R.3 the permit condition stipulating that, offending vehicle ought to have plied within the jurisdiction of Channapatna Taluk and at the time of accident it was plying at Malavalli Taluk. Hence, there was violation of permit condition. In that view of the matter tribunal was fully justified in absolving the insurer of its liability and there is no error much less material irregularity committed by tribunal calling for interference at the hands of this court.
iii) M.F.A.No.0742 of 2008 (MV) High Court of Karnataka, Bangalore (Oriental Insurance Co. Ltd. V/s K.C.Pappanna and Another), wherein, it is observed that,
2. The primary contention of the appellant is that, the Auto was plying beyond the limits of its permit. The permit has been granted in terms of Ex.R.1. I have examined 21 M.V.C.NO.654/2014 (SCCH-7) the same. It is granted for an area within the Bangalore City Corporation and at a distance of about 25 kilometers radius thereafter. That, the accident has taken place near Kempanahalli near Ramangara Taluk. By taking judicial notice of the fact that, the accident has taken place beyond the limit of 25 kilometer for the border of Bangalore south necessarily it would amount to violation of permit.
3. The Learned Counsel for the appellant submits that, the accident has taken place beyond the limits of 25 kilometer from the border of the Bangalore City Corporation. Under these circumstances, the Judgment and award of the Tribunal is erroneous. The Respondent defends the impugned order.
4. In view of the violation of the terms of the permit necessarily the insurer would not be held liable to satisfy the award. Hence on this ground I am of the considered view that, the appeal requires to be allowed.
Consequently the appeal is allowed. The order dated 31.12.2007 passed in m.V.C.No.74/2005 by the Additional Civil Judge (Senior Division), MACT, Ramanagara is set aside in so far as it pertains to foisting the liability on the insurer is concerned. The appellant is absolved of its liability to satisfy the award. The claimants are at liberty to pursue their remedy against the owner of the vehicle.
11. My answers to the above said Issues are as follows;
22 M.V.C.NO.654/2014
(SCCH-7)
Issue No.1 : In the Affirmative,
Issue No.2 : In the Affirmative,
Issue No.3 : Partly in the Affirmative,
The Petitioners are
entitled for compensation
of Rupees 14,90,400/-
with interest at the rate of
8% p.a. from the date of
the petition till the date of
payment, from the
Respondent No.1.
Issue No.4 : As per the final Order,
for the following;
REASONS
12. ISSUE NO.1 :- The P.W.1, who is the Petitioner No.1 has stated in her examination-in-chief that, the Petitioner No.2 is her daughter aged about 11 years, the Petitioner No.3 is her son, who is aged about 8 years and the Petitioner No.4 is her mother- in-law and deceased R.Mahadeva is her husband, who died in the road traffic accident, which was taken place on 17.10.2013 in the midnight at 00.30 p.m., when the offending Bus bearing Registration No.KA-44-1998 moved, when it was driven by his driver in a reverse direction at Akka Nagalambike Ashrama Temple Open Field, Kudalasangama, Hungund Taluk, Bagalkote and he died at the accidental spot itself. She has further stated that, she is a house wife and the Petitioner No.2 is studying in 7th Standard and the Petitioner No.3 is studying in 3rd Standard at 23 M.V.C.NO.654/2014 (SCCH-7) Gurukula International School, No.52/4, 9th Cross, Magadi Road, Bangalore and the Petitioner No.4 is her mother-in-law, who is aged about 66 years and she is suffering from heart problem and eye sight problems.
13. No doubt, the P.W.1 in her cross-examination has stated that, Nagendra and Shankaraiah are the brothers of her deceased husband and her deceased husband is also having three other brothers. But, based on the same, it cannot be said that, the Petitioner No.4, who is a mother of the deceased was not depending upon the deceased at the time of accident, as, admittedly the Petitioner No.4 is a mother of the deceased and as such, it was a duty caste upon the deceased to look after his mother, even though he is having other brothers to look after his mother. Further, the Petitioners have produced Ex.P.17 Admission and Discharge Book relating to the Petitioner No.4 issued by Sri. Jaidev Hospital, which clearly disclosed that, the Petitioner NO.4 is an aged person and she is suffering from heart problem and eye sight problems. Further, the P.W.1 in her cross-examination has clearly stated that, she is not doing any work. The Petitioners have produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.6 Inquest, Ex.P.7 Post Mortem Report, Ex.P.8 Death Certificate relating to R.Mahadeva, Ex.P.9 Marriage Invitation Card relating to the deceased and Petitioner No.1, Ex.P.10 Aadhar Card relating to Petitioner No.1, Ex.P.11 Aadhar Card relating to Petitioner No.2, Ex.P.12 Aadhar Card relating o the Petitioner No.3, Ex.P.14 Study Certificate dated 30.10.20132 relating to Petitioner No.2, Ex.P.15 Study Certificate dated 30.10.2013 relating to Petitioner No.3, 24 M.V.C.NO.654/2014 (SCCH-7) Ex.P.16 Rental Agreement dated 05.12.2013 and Ex.P.21 Charge Sheet, which clearly disclosed that, the Petitioner No.1 is a wife, the Petitioner No.2 is a minor daughter, the Petitioner No.3 is a minor son and the Petitioner No.4 is a mother of the deceased R.Mahadeva S/o Late R.Ramaiah, who succumbed to the accidental injuries on the accidental spot itself at Akka Nagalambike Sharama Temple Open Field, Kudalasangama, Hungund Taluk, Bagalkote on 17.10.2013 at 2.30 a.m., which caused by the driver of the offending Bus bearing Registration No.KA-44-1998, who drove it in reverse direction and ran over on the said deceased, when he was sleeping by the side of the Bus bearing Registration No.KA-11-A-8199. From this, it is made crystal clear that, the Petitioners are the legal representatives of the said deceased R.Mahadeva S/o Late Ramaiah. Since the Petitioner No.1 is a wife, the Petitioner No.2 is a minor daughter, the Petitioner No.3 is a minor son and the Petitioner No.4 is a mother of the deceased R.Mahadeva, they are considered as dependents of the deceased at the time of accident. Accordingly, I answered Issue No.1 in the Affirmative.
14. ISSUE NO.2 :- The P.W.1 has stated that, on 17.10.2013 in the midnight at about 2.00 a.m., she received a telephone message/call from one Krishnappa, who is the driver of the Bus bearing Registration No.KA-11-A-8199, in which Bus, her husband is also working as a Travel Manager and he informed that, her husband R.Mahadeva was met with an accident around 00.30 p.m., in the midnight at Akka Nagalambike Ashrama Temple Open Field, Kudalasangama, Hungund Taluk, Bagalkote 25 M.V.C.NO.654/2014 (SCCH-7) and due to which, her husband sustained severe injuries and he was shifted to the Government General Hospital, Hunagund, for necessary treatment. She has further stated that, immediately after receiving the said message, her husband's brother rushed to Hunagund Government Hospital to look after the status of her husband and subsequently, it is informed that, her husband was died or succumbed to the fatal injuries sustained in the said accident on the spot due to negligent driving on the part of the driver of offending Bus bearing Registration No.KA-44-1998, which belongs to the Respondent No.1 and the said accident occurred as the driver of the said offending Bus bearing Registration No.KA-44-1998 drove his vehicle in a reverse direction in a rash and negligent manner and endangering to human life without the help or assistance of his cleaner or helper in the dark night and he drove his Bus with great speed without observing deceased and injured one Anil Kumar and his offending Bus ran over her husband body and due to which, her husband succumbed to the total injuries and died on the spot and after the accident, the driver of the offending Bus was absconded from the accidental spot by leaving the offending Bus. She has further stated that, the said accident was occurred due to the rash and negligent manner of driving by the driver of the offending Bus bearing Registration No.KA-44-1998 and in the said accident, Mr. Anil Kumar has also sustained with grievous injuries. She has further stated that, on the same day her husband's body was shifted to the Government General Hospital, Hunagunda and the post mortem was done by the Defendants. She has further stated that, the Hunagunda Police have registered a case as against the 26 M.V.C.NO.654/2014 (SCCH-7) driver of the offending vehicle under Section 279, 338 and 304-A of IPC in Crime No.190/2013 and after completion of the investigation, they have filed a Charge Sheet as against the driver of the said offending vehicle.
15. No doubt, the P.W.1 is not an eye witness of the accident. In this regard, she has stated in her examination-in- chief as well as in her cross-examination that, she has not seen the accident. She has further stated that, her husband was sleeping on the left side of the Bus. She has further stated that, she has not given statement before the Police about the accident.
16. But, based on the said grounds, it cannot be thrown away the above said oral version of P.W.1, which has been stated by her in the examination-in-chief, as, to consider the oral version of P.W.1 as well as their case, the Petitioners have produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Spot Hand Sketch, Ex.P.4 Crime Details Form, Ex.P.5 MVI Report, Ex.P.6 Inquest Report, Ex.P.7 Post Mortem Report, Ex.P.8 Death Certificate relating to R.Mahadeva and Ex.P.21 True Copy of Charge Sheet, which clearly disclosed that, due to rash and negligent manner of driving of the offending Bus bearing Registration No.KA-44-1998 by its driver itself, the said road traffic accident was taken place on 17.10.2013 at 12.00 a.m., in the open field at Akka Nagalambike Ashrama Temple, Kudalasangama, Hungund Taluk, Bagalkote, which ran over the deceased R.Mahadeva S/o Late Ramaiah, who was slept in the said open field and due to the said impact, the said deceased succumbed to the injuries on the accidental spot 27 M.V.C.NO.654/2014 (SCCH-7) itself, which is clear from the following discussion. Furthermore, the P.W.1 in her cross-examination has clearly stated that, one Krishnappa has lodged a complaint after the accident caused to her husband, which was taken place at about 12.00 a.m. and at the time of accident, her deceased husband was sleeping on the left side of the Bus. Further the Petitioners have examined the eye witness, in the said road traffic accident, who has clearly stated in his examination-in-chief that, on 16.10.2013 along with his friends, he was traveling in Bus bearing Registration No.KA-44- 1998 of Jatin Travels as one of the passenger to visit tourist places of Uttara Karnataka and on the next day, after visiting badami, Ihole and other tourist places, they halted along with other passengers at Kudalasangama, Bagalkote and since there were more passengers and visitors, they had not secured the hotel rooms and as such, most of the passengers of the said Bus were slept in the open space belonging to the Akka Nagalambike Ashrama and the Manager of the Bus bearing Registration No.KA- 11-A-8199, namely, Sri.R.Mahadeva was also slept by his side on the mat and at 12.30 a.m., the Bus belonging to SRS Travels bearing Registration No.KA-44-1998 came suddenly in a rash and negligent manner in reverse direction and ran over the said R.Mahadeva and due to which, they sustained grievous injuries and the said R.Mahadeva died at the accidental spot itself as he had sustained grievous injuries and the local public along with other passengers were shifted him to Bagalkote Hospital for treatment. He has further stated that, the accident was taken place due to rash and negligent manner of driving of the offending SRS Bus bearing Registration No.KA-44-1998 and he is an eye 28 M.V.C.NO.654/2014 (SCCH-7) witness to the said road traffic accident and as such, he lodged a complaint before the Hungunda Police as against the driver of the said offending Bus and he lost his conscious after 5- 10 minutes after the accident. He has further clearly stated in his cross- examination that, when he was traveling as a passenger in Jathin Travels Bus bearing Registration No.KA-11-A-8199, the deceased known to him and at that night, he and the deceased were slept at the side of the Bus at 12.00 a.m.. He has further clearly stated that, he has given statement before the Police about the accident caused to the deceased Mahadev. It is pertinent to note here that, in the cross-examination of P.W.1, the statement given by the P.W.1 before the Police is marked at Ex.R.1 and there is discrepancy in stating about the place of accident, i.e., either by the side of the said Bus bearing Registration No.KA-11-8199 of its behind and the same is also clearly admitted by the P.W.1 in the cross-examination. Further the P.W.2 has clearly admitted that, according to the Respondent No.1, he and cleaner were sleeping together. But, the said discrepancy in stating about the place of occurrence of the accidental spot no way affect to consider the case of the Petitioners, as, the above said material documents clearly disclosed that, at the time of accident, the deceased was sleeping by the side of the Bus, which is also the open field belonging to Akka Nagalambike Ashrama. Further, both the P.W.1 and P.W.2 have clearly denied the suggestions put to them by the Respondent No.2 that, the accident was taken place due to own negligence on the part of the deceased and not on the part of the driver of the offending Bus and neither the P.W.2 and the deceased was sleeping behind the Bus and the said road traffic 29 M.V.C.NO.654/2014 (SCCH-7) accident was not occurred as stated by them in their evidence. From this, it appears that, though the P.W.1 and P.W.2 have been cross-examined by the Respondent No.2, nothing has been elicited from their mouth to consider its defence. Further except denial of the case of the Petitioners, the R.W.1, who is the Assistant Executive Legal of the Respondent No.2, has not stated anything about the alleged negligence of the deceased in the commission of the said road traffic accident. Furthermore, the R.W.1 in his cross- examination has clearly stated that, based on the available records, he has given evidence in respect of the accident in question, which clarified the fact that, whatever stated and mentioned in the above said Police and medical documents are true and correct. Further, though the R.W.1 has stated that, in respect of the accident, they have appointed an Investigating Officer, the Respondent No.2 has not produced the said Investigating Report submitted by its Investigating Officer in respect of the accident in question. Further, the R.W.1 has clearly admitted that, as against the driver of the offending Bus, the Police have filed a Charge Sheet.
17. The contents of Ex.P.1 FIR and Ex.P.2 Complaint clearly disclosed that, the driver of the Bus bearing Registration No.KA-11-8199, wherein, the deceased and the P.W.2 were traveling, has lodged Ex.P.2 Complaint before the Hunagunda Police as against the driver of the offending Bus bearing Registration No.KA-44-1998, by alleging that, on 17.10.2013 at 12.30 a.m., when the deceased R.Mahadeva S/o Late R.Ramaiah was sleeping in the open filed, the driver of the said offending 30 M.V.C.NO.654/2014 (SCCH-7) Private Bus came with rash and negligent manner on reverse direction and ran over the said deceased R.Mahadeva and Anil Kumar and they have sustained grievous injuries and the said R.Mahadevaiah had succumbed to the said injuries on the spot itself and Anil Kumar has sustained grievous injuries and the driver of the offending Private Bus ran away from the accidental spot by leaving the said offending Bus in the accidental spot and as such, he prayed to take necessary legal action as against the driver of the said Bus and based on the said complaint, the Hunagunda Police have registered a case as against the driver of the offending vehicle under Section 279, 338 and 304-A of IPC in Crime No.190/2013. It is also clear from the contents of Ex.P.1 FIR and Ex.P.2 Complaint that, there is no delay as such in lodging Ex.P.2 Complaint by the complainant, i.e., the driver of the said Private Bus bearing Registration No.KA-11-A-8199, in respect of the road traffic accident, wherein, the deceased and the other passengers were traveling to visit the tourist places.
18. The contents of Ex.P.3 Spot Hand Sketch, Ex.P.4 Crime Details Form and Ex.P.5 MVI Report further clearly disclosed that, the accidental spot is an open field belonging to the said Ashrama and the said accident was not occurred due to any mechanical defects of the said Bus bearing Registration No.KA-44- 1998 and there was no negligence on the part of the deceased in the commission of the said road traffic accident.
19. The contents of Ex.P.6 Inquest, Ex.P.7 Post Mortem Report and Ex.P.8 Death Certificate clearly disclosed that, the 31 M.V.C.NO.654/2014 (SCCH-7) deceased R.Mahadeva S/o Late R.Ramiaah succumbed to the said accidental injuries on the spot itself and the cause of death is due to hemorrhage shock, fracture of neck of left femur and fracture of left forearm due to the road traffic accident, which was taken place on 17.10.2013 at 12.30 a.m.
20. The contents of Ex.P.21 Charge Sheet further clearly disclosed that, since during the course of investigation, it is found that, due to the negligent driving of the offending SLR new version Bus bearing Registration No.KA-44-1998 by its driver itself in driving it on reversion direction, the said road traffic accident was taken place on 17.10.2013 at 12.30 a.m., on the open field belonging to Akka Nagalambike Ashrama, Kudalasangama, which ran over the deceased R.Mahadeva S/o Late R.Ramaiah, when he was sleeping on the accidental spot and also over Anil Kumar S/o Appaiah, i.e., P.W.2 and due to the said impact, the deceased R.Mahadeva succumbed to the injuries on the accidental spot itself and the P.W.2 had sustained grievous injuries and the driver of the said offending Bus left the offending Bus at the accidental spot and fled away from the accidental spot and as such, after thorough investigation, the Investigating Officer has filed a charge sheet as against the driver of the offending Bus bearing Registration No.KA-44-1998 for the offences punishable under Section 338 and 304 (A) of IPC and Section 187 of IMV Act. There is no allegation leveled by the Investigating Officer in Ex.P.21 Charge Sheet as against the deceased in the commission of the said accident.
32 M.V.C.NO.654/2014(SCCH-7)
21. From the above said material evidence, both oral and documentary, it is clearly proved by the Petitioners that, due to the negligence on the part of the driver of the offending Bus bearing Registration No.KA-44-1998 itself, the said accident was taken place, which ran over the deceased R.Mahadeva S/o Late R.Ramaiah, when he was sleeping in the open filed belonging to Akka Nagalambike Ashrama Temple, Kudalasangama, Bagalkote and due to the impact, the deceased succumbed to the accidental injuries at the accidental spot itself and the said offending Bus bearing Registration No.KA-44-1998 as well as its driver are very much involved in the said road traffic accident and there was no negligence on the part of the deceased in the commission of the said accident. Accordingly, I answered Issue No.2 in the Affirmative.
22. ISSUE NO.3 :- The P.W.1 has stated that, her deceased husband R.Mahadeva was aged about 41 years at the time of accident. No authenticated documents are produced by the Petitioner to consider the actual age of the deceased at the time of accident. But, the above said Police and medical documents clearly disclosed that, at the time of accident, the deceased was 41 years old. Hence, the age of the deceased is considered as 41 years at the time of accident.
23. The P.W.1 has stated that, prior to the date of accident, her husband was hale and healthy with good physique, active and hard worker and had no voices and he was working as a Travel Manager, at Jatin Tours and Travels, Bangalore and he 33 M.V.C.NO.654/2014 (SCCH-7) was earning Rupees 20,000/- from his employment. She had further stated that, before joining the Jatin Tours and Travels, her husband was working as a Senior Assistant Billing in S-3 Level at Vardhaman Yarns and Threads Limited and he was getting salary of Rupees 8,500/- per month and he left the said job as the present employer has offered to give higher salary of Rupees 20,000/- per month.
24. The Petitioners have produced Ex.P.19 Confirmation of Service Letter dated 25.10.2010 and Ex.p.20 Salary Slips for the months June 2010, October 2010 and June 2011, 2 in numbers relating to Vardhaman Yarns and Thread Limited. The said documents disclosed that, the deceased was working as a Senior Assistant-Billing at Vardhaman Yarns and Threads Limited and his Gross Salary was Rupees 8,500/- and net salary was Rupees 7,886/- in the months of June 2010, October 2010 and June 2011. But, the Petitioners have not produced any authenticated documents issued by the employer or the deceased to show that, at the time of accident, i.e., on 17.10.2013, the deceased was working as a Travel Manager at Jatin Tours an Travels by drawing a salary of Rupees 20,000/- per month. Therefore, the case made out by the Petitioners in respect of the avocation and income of the deceased at the time of accident cannot be considered. However, the Petitioner No.1 is a wife, the Petitioner No.2 is a minor daughter, the Petitioner No.3 is a minor son and the Petitioner No.4 is a mother of the said deceased R.Mahadeva S/o Late R.Ramaiah, which disclosed that, at the time of accident, he was having a wife, minor children and aged mother and as such, 34 M.V.C.NO.654/2014 (SCCH-7) he had to maintain his family by earning himself. Further, at the time of accident, the deceased was 41 years old. By considering the family status and age of the deceased, this Tribunal feels that, it is just, proper and necessary to consider the notional income of the deceased is of Rupees 8,000/- per month, which is reasonable, acceptable and believable one. Hence, the notional income of the deceased is considered as Rupees 8,000/- per month at the time of accident.
25. The P.W.1 has stated that, her husband is a honest hard worker and having very good skill and intelligence in his work and he might have earn good and handsome income out of his work in the future, but, unfortunately, he lost his bright future. She has further stated that, the deceased was the only earning member in their family and he was looking after them and contributing his entire income to the family maintenance, education of his children and for treatment for his aged mother and he was very much helpful to them in all aspects and particularly for great financial help and he should have continued making very valuable monetary contributions to them. She has further stated that, they are totally depended upon the deceased for their daily needs and they are living in a rented premises and both the Petitioners No.2 and 3 were studying and the Petitioner No.4 is at her old age and she required frequent medical care and they need a sum of Rupees 15,000/- per month to maintain her family and provide education to the Petitioners No.2 and 3 and provide treatment to the Petitioner No.4. She has further stated that, due to sudden demise of her husband, they are undergoing 35 M.V.C.NO.654/2014 (SCCH-7) untold hardship, great suffering, mental agony and their condition has became very pathetic, miserable, exposing to untold hardship and they are struggling very hard for their livelihood. She has further stated that, she lost the company of her beloved husband and the Petitioners No.2 and 3 lost the love and affection and care of their father and the Petitioner No.4 lost her beloved son and his love and affection.
26. Since the Petitioners are the legal representatives and dependents of the deceased at the time of accident and the accident was taken place due to the negligent driving of the driver of the offending Bus bearing Registration No.KA-44-1998, wherein, the deceased succumbed to the accidental injuries on the accidental spot itself, the Petitioners are entitled for the compensation under the following heads.
27. As per the decision reported in 2013 ACJ 1403 (Rajesh and Others V/s Rajbir Singh and Others) and as the deceased was aged 41 years at the time of accident, towards future prospects 30% of the income has to be added. So, 30% of Rupees 8,000/- comes to Rupees 2,400/-. Therefore, the income of the deceased comes to Rupees 10,400/- p.m. (Rs.8,000/- + 2,400/-).
28. The Petitioners No.1 to 4 are considered as dependents of the deceased. Therefore, deceased left behind 4 dependents. As per the principles laid down in Sarala Varma's Case, considering the number of the dependents, i.e., 4, 1/4th of the income has to 36 M.V.C.NO.654/2014 (SCCH-7) be deducted towards personal expenses of the deceased, i.e., Rupees 2,600/- (1/4th of Rs.10,400/-). Therefore, loss of dependency comes to Rupees 7,800/- (Rs.10,400/- (-) Rs.2.600/). The multiplier corresponding to the age of the deceased, i.e., 41 years, is 14 as per Sarala Varma's Case. Therefore, loss of dependency comes to Rupees 13,10,400/- (Rs.7,800 x 12 x 14). Therefore, the Petitioners are entitled for Rupees 13,10,400/- towards loss of dependency due to death of R.Mahadeva S/o Late R.Ramaiah.
29. The P.W.1 has stated that, the dead body was shifted to Bangalore and on 18.10.2013, the deceased was criminated as per Hindu rites at Bangalore. But, to consider the same, the Petitioners have not produced any documents.
30. As per the principles laid down in the decision reported in 2013 ACJ 1403 (Rajesh and Others V/s Rajbir Singh and Others), loss of consortium to the Petitioner No.1, who is a wife of the deceased, should be Rupees 1,00,000/-, loss of love and affection has to be compensated by awarding Rupees 25,000/- and funeral expenses should be Rupees 25,000/-. As this Tribunal has already observed that, the Petitioner No.1 is a wife, Petitioner No.2 is a minor daughter, Petitioner No.3 is a minor son and the Petitioner No.4 is a Mother of the deceased. Hence, the Petitioner No.1 is entitled for a sum of Rupees 1,00,000/- towards Loss of consortium and all the Petitioners are entitled for a sum of Rupees 25,000/- towards loss of love and affection and Rupees 25,000/- towards funeral expenses.
37 M.V.C.NO.654/2014(SCCH-7)
31. The place of accident is at Kudalasangama, Hulagund Taluk, Bagalkote and the place of residence of the deceased and the Petitioners is at Bangalore. Hence, it is just, proper and necessary to award a sum of Rupees 10,000/- towards transportation expenses of the dead body of deceased and Rupees 20,000/- towards loss of estate. Hence, the Petitioners are entitled for Rupees 10,000/- towards transportation expenses of the dead body of the deceased and Rupees 20,000/- towards loss of estate.
32. The P.W.1 has stated that, the Petitioner No.4, who is her mother-in-law, is suffering from heart problem and eye sight problems and she undergone for surgeries for the same, apart from that, she is also suffering from B.P. and diabetic and still she is under regular follow-up treatment. In this regard, the Petitioners have produced Ex.P.17 Admission and Discharge Book and Ex.P.18 Cash Bills relating to Petitioner No.4. The Petitioners have filed the present petition claiming compensation in respect of death of R.Mahadeva S/o Late R.Ramaiah. No doubt, admittedly, the Petitioner No.4 is a mother of the said deceased. But, she has no independent right to claim compensation in the present petition in respect of her aliments. Hence, the said case made out by the Petitioners relating to Petitioner No.4 covered under Ex.P.17 and Ex.P.18 cannot be considered in the present petition and hence, they are discarded.
33. In this way, the Petitioners are entitled for the following amount of compensation:-
38 M.V.C.NO.654/2014(SCCH-7) Sl.No. Compensation heads Compensation amount
1. Loss of Dependency Rs. 13,10,400-00
2. Loss of Consortium Rs. 1,00,000-00
3. Funeral Expenses Rs. 25,000-00
4. Loss of Love and affection Rs. 25,000-00
5. Expenses of transportation Rs. 10,000-00 of dead body
6. Loss of Estate Rs. 20,000-00 TOTAL Rs. 14,90,400-00
34. In all, the Petitioners are entitled for total compensation of Rupees 14,90,400/-. As this a matter of 2014, the Petitioners are also entitled for interest at the rate of 8% per annum on the above said sum from the date of petition till payment, which is reasonable and acceptable one.
35. The P.W.1 has stated that, the Respondent No.1 is the owner and the Respondent No.2 is the insurer of the offending vehicle under valid Insurance Policy and therefore, both the Respondents are jointly and severally liable to pay the compensation as claimed in the claim petition.
36. While answering Issue No.2, this Tribunal has already come to the conclusion that, due to the negligence on the part of the driver of the offending Bus bearing Registration No.KA-44- 1998 itself, the said accident was taken place, which ran over the deceased R.Mahadeva S/o Late R.Ramaiah, when he was sleeping in the open filed belonging to Akka Nagalambike Ashrama 39 M.V.C.NO.654/2014 (SCCH-7) Temple, Kudalasangama, Bagalkote and due to the impact, the deceased succumbed to the accidental injuries at the accidental spot itself and the said offending Bus bearing Registration No.KA- 44-1998 as well as its driver are very much involved in the said road traffic accident and there was no negligence on the part of the deceased in the commission of the said accident. The Petitioners in the cause title of the petition has clearly mentioned that, the Respondent No.1 is a R.C. Owner and the Respondent No.2 is an insurer of the offending Bus bearing Registration No.KA-44-1998 and its Insurance Policy Number is IP No.1- 1XRLYE/P400 83070264, valid from 19.2.2013 to 18.02.2014. The Respondent No.2 in its written statement has stated that, it has issued the Policy bearing No.83070264 as against the alleged Bus bearing Registration No.KA-44-1998. There is no allegation leveled as against the driver of the offending Bus in Ex.P.21 Charge Sheet that, at the time of accident, he was not having a valid and effective driving licence to drive such class of vehicle. From this, it appears that, at the time of accident, the Respondent No.1 is a registered owner and the Respondent No.2 is an insurer of the offending Bus bearing Registration No.KA-44-1998 and its insurance policy was valid, which covers the date of accident.
37. But, based on the same, it cannot be said that, the Respondent No.1 being a registered owner and the Respondent No.2 being an insurer of the offending Bus bearing Registration No.KA-44-1998 are jointly and severally liable to pay the above said compensation and interest to the Petitioners, as, the R.W.1 has clearly stated in his examination-in-chief that, the Bus 40 M.V.C.NO.654/2014 (SCCH-7) bearing Registration No.KA-44-1998 did not having a valid permit and fitness certificate as on the date of accident and the owner of the vehicle has violated the terms and conditions of the policy and hence, their Insurance Company is not liable to pay any compensation to the Petitioner. Further, the Respondent No.2 has also examined the ARTO, Tumkur, as R.W.2, who has stated by producing Ex.R.3 Permit relating to the vehicle bearing Registration No.KA-44-1998, i.e., Bus, which is authorized to move from Hosadurga Road to Bangalore and the said Bus is not having a valid permit to move in entire Karnataka. Further, Ex.P.22 X-ray Copy of permit relating to the offending Bus is marked through R.W.1, which has been produced by the Petitioners in the present case. On perusal of the contents of Ex.P.22 and Ex.R.3 Permit, it clearly goes to show that, though the period of the said Insurance Policy is valid from 30.04.2013 to 29.04.2018, which covers the date of accident, it is clearly endorsed to renewal of permit that, it is valid for the route Hosadurga to Bangalore and back, which is renewed for further period of 5 years from the date of its expiry, i.e., from 30.04.2013 up to 29.04.2018 subject to usual condition already attached to the permit. The place of accident is at open field belongs to Akka Naglambike Ashrama Temple, Kudalasangama, Hunagunda Taluk, Bagalkote, which is not coming within the permitted route of Hosadurga Road from Bangalore and back. It is also clearly mentioned in Ex.R.2 Insurance Policy that, the said offending vehicle can be used only in connection with insured Business, use only for carriage for passengers in accordance with permit (contract carriage or stage carriage) instead within the meaning of 41 M.V.C.NO.654/2014 (SCCH-7) the Motor Vehicles Act. Further the R.W.1 in his cross- examination has clearly stated that, the said offending vehicle was not having a permit to move on the accidental place, i.e., route permit. No doubt, the Respondent No.2 has not produced any authenticated documents to show that, the offending Bus was also not having a fitness certificate at the time of accident and it was not valid at the time of accident. But, it no way affects to consider the defence taken by the Respondent No.2, as, it is very much clear from the oral version of R.W.1 and R.W.2 as well as the contents of Ex.P.22 and Ex.R.3 that, at the time of accident, the offending Bus bearing Registration No.KA-44-1998 was not having a valid permit to use the route of the accidental place, but, it was having only a valid permit for the route Hosadurga to Bangalore and back. Further, though the Respondent No.1 was a registered owner of the said offending Bus at the time of accident, he has not appeared before this Tribunal to contest the case of the Petitioners and he is placed as exparte. The Respondent No.1 did not care to produce the valid permit and fitness certificate relating to the offending Bus belonging to him to consider the liability. From this, it is made crystal clear that, the Respondent No.1 being a owner of the offending Bus bearing Registration No.KA-44-1998 has violated the terms and conditions of Ex.R.2 Insurance Policy. Hence, the Respondent No.2 being the insure is not liable to pay any compensation and interest to the Petitioners by indemnifying the Respondent No.1. Further, the rule of pay and recovery also not available to the present facts and circumstances of the case on hand, as, the Respondent No.1 being the R.C. owner of the offending Bus bearing Registration No.KA-44-1998 is placed as 42 M.V.C.NO.654/2014 (SCCH-7) exparte and he has not come before this Tribunal to contest the case of the Petitioners as well as its liability to pay compensation to the Petitioners. Hence, the petition filed by the Petitioners as against the Respondent No.2 is liable to be rejected and the petition filed by the Petitioners as against the Respondent No.1 is liable to be allowed. In view of the above said reasons, the principles enunciated in the decisions cited by the Learned Counsel appearing for the Petitioners are not applicable to the present facts and circumstances of the case on hand. On the other hand, the principles enunciated in the decisions cited by the Learned Counsel appearing for the Respondent No.2 are applicable to the present facts and circumstances of the case on hand. Hence, Issue No.3 is answered accordingly.
38. ISSUE NO.4 :- For the aforesaid reasons, I proceed to pass the following, ORDER The petition filed by the Petitioners under Section 166 of the Motor Vehicles Act, 1989, is hereby partly allowed with costs as against the Respondent No.1.
The petition filed by the Petitioners under Section 166 of the Motor Vehicles Act, 1989, is hereby rejected without costs as against the Respondent No.2.
43 M.V.C.NO.654/2014(SCCH-7) The Petitioners are entitled for compensation of Rupees 14,90,400/-
with interest at the rate of 8% p.a. from the date of the petition till the date of payment, from the Respondent No.1.
The Respondent No.1 shall deposit the said compensation and interest in this Tribunal, within one month from the date of this Order.
The Petitioners No.1 to 4 shall share the compensation amount in the ratio of 50:20:20:10.
In the event of deposit of compensation and interest, 50% shares relating to the Petitioners No.1 and 4 shall be released in their respective names through account payee cheques, on proper identification.
Remaining 50% shares relating to the Petitioners No.1 and 4 shall be kept in FD in their respective names, in any nationalized Bank of their choice, for a period of 3 years.
44 M.V.C.NO.654/2014(SCCH-7) The entire shares relating to the Petitioners No.2 and 3 shall be kept in FD in their respective names, in any nationalized Bank of the choice of their guardian, till they attain the age of majority.
Advocate's fee is fixed at Rupees 1,000/-.
Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then, pronounced by me in the open Court on this, the 2nd day of February, 2016.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONERS :-
P.W.1 : M.N. Lathamani
P.W.2 : Anil Kumar
2. DOCUMENTS MARKED BY THE PETITIONERS :-
Ex.P.1 : True copy of FIR
Ex.P.2 : True copy of Complaint
Ex.P.3 : True copy of Spot Panchanama
45 M.V.C.NO.654/2014
(SCCH-7)
Ex.P.4 : True copy of Crime Details Form
Ex.P.5 : True copy of MVI Report
Ex.P.6 : True copy of Inquest
Ex.P.7 : True copy of PM Report
Ex.P.8 : Death Certificate relating to
R.Mahadeva
Ex.P.9 : Marriage Invitation Card
Ex.P.10 : Notarised Xerox copy of Adhaar Card relating to M.N.Lathamani Ex.P.11 : Notarised Xerox copy of Adhaar Card relating to M.Manasa Ex.P.12 : Notarised Xerox copy of Adhaar Card relating to M.Deepak Ex.P.13 : Notarised Xerox copy of Adhaar Card relating to M.Puttamma Ex.P.14 : Study Certificate dated 30.10.2013 relating to Manasa. M. Ex.P.15 : Study Certificate dated 30.10.2013 relating to Deepak. M. Ex.P.16 : Notarised Xerox copy of Rental Agreement dated 05.12.2013 Ex.P.17 : Notarised Xerox copy of Admission and Discharge Book relating to Puttamma issued by Sri. Jaidev Hospital Ex.P.18 : Cash Bills 4 in numbers Ex.P.19 : Confirmation of Service Letter dated 25.10.2010 Ex.P.20 : Salary Slips for the months of June 2010, October 2010 and June 2011 3 in numbers Ex.P.21 : True copy of Charge Sheet Ex.P.22 : Zerox copy of Permit
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
R.W.1 : Girisha. M.
R.W.2 : S. Balakrishna
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
46 M.V.C.NO.654/2014(SCCH-7) Ex.R.1 : Statement of P.W.2 Ex.R.2 : True copy of Insurance Policy Ex.R.3 : True copy of Permit relating to Vehicle bearing Registration No.KA-44-1998 (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.