Bangalore District Court
In: 1. Sri. D.C.Krishnamurthy vs Sri. Noorahmed.B. Raichgar on 23 January, 2017
BEFORE THE COURT OF XXI ADDITIONAL SMALL CAUSES
JUDGE AND THE MOTOR ACCIDENT CLAIMS TRIBUNAL
(SCCH-23) AT BENGALURU
DATED THIS THE 23rd DAY OF JANUARY 2017
PRESENT: Sri.N.N.YALAVATTI, B.Com, LL.B, (Spl).,
XXI ADDL. SCJ & XIX ACMM
MEMBER - MACT
BANGALORE
MVC No.3010/2016 c/w 3011/2016
PETITIONER IN: 1. Sri. D.C.Krishnamurthy,
MVC 3010/2016 S/o late Chenniah,
Father of late D.K.Madukumar,
Aged about 52 years.
2. Smt. Rathnamma,
W/o D.C.Krihnamurthy,
M/o late D.K.Madukumar,
Aged about 46 years.
Both are R/at Doddahejjaji Village,
Doddam Belavangala Hobli,
Doddaballapura Taluk,
Bengaluru Rural District.
PETITIONER IN: 1. Smt. Kala.S,
MVC 3011/2016 W/o Late Honnegowda,
Aged about 25 years.
2. Chi. Kishore Gowda,
S/o late Honnegowda,
Aged about 9 months.
2 MVC No.3010/2016 c/w 3011/2016
Since 2nd petitioner is minor,
Rep. by his mother and natural
Guardian Smt. Kala.S.
3. Smt. Sharadamma,
W/o late Hanumantharayappa,
M/o late Honnegowda,
Aged about 65 years.
All are R/at Doddahejjaji Village,
Doddam Belavangala Hobli,
Doddaballapura Taluk,
Bengaluru Rural District.
(By Sri.D.C.Krishna Murthy., Advocate)
Vs.
RESPONDENTS 1. Sri. Noorahmed.B. Raichgar,
IN BOTH THE CASES S/o Basha Sab Alias
Noor Ahamed Nichagar,
Islampur Lane,
Rannebennur,
Rannebennur Taluk, ,
Haveri District - 581115.
(RC Owner of Bolero car
Bearing No.KA-27-B-4593)
(By Sri. K.Murulidhara., Advocate)
2. Shriram General Insurance Co. Ltd.,
Regional Office,
No.5, Monarch Chambers,
2nd Floor, Infantry Road,
Bangalore - 560001.
3 MVC No.3010/2016 c/w 3011/2016
(Policy No.10003/31/16/524730,
Valid from 30.01.2016 to 29.01.2017)
(By Sri. K.Prakash., Advocate)
****
JUDGMENT
These petitions are filed by claimants under Sec.166 of M.V. Act against the respondents claiming compensation of Rs.50,00,000/- each in MVC 3010 and 3011 of 2016.
2. The brief facts of the case of the petitioners as averred in their respective claim petitions are as follows:
On 08.03.2016 at about 8:25 a.m., on Dabaspet-
Doddaballapura Road, in front of Lavanyam School at Doddaballapura, the driver of the Bolero car bearing No.KA-27-B-
4593 belonging to 1st respondent insured with 2nd respondent, driven it rashly and negligently and dashed against ongoing ahead motor cycle bearing No.KA-02-HX-7613. As a result of which, the rider of motor cycle by name Honnegowda and pillion rider by name D.K.Madukumar were fell down and sustained multiple head injuries. They were shifted to nearby hospital. But, 4 MVC No.3010/2016 c/w 3011/2016 the pillion rider Madukumar and rider Honnegowda died to their injuries. This accident was occurred due to rash and negligent driving of the driver of the offending vehicle, same was insured with 2nd respondent and policy was in force. The petitioners of MVC 3010/2016 who were the parents of deceased D.K.Madukumar have filed claim petition alleging that the Madukumar was a student and was earning Rs.12,000/- p.m., from his tuition work and milk wending business along with his studies. He was a brilliant and intelligent student. He would have earn more if he alive. The petitioners were depending upon the earnings of deceased person. Now they are under the dark. The LR's of Honnegowda have filed MVC 3011/2016 alleging that the deceased Honnegowda was 35 years old on the date of his death.
He was earning Rs.15,290/- p.m., from his employment. He was working as a cutter in cutting section in a BIL TEEK Factory, Doddaballapura. The petitioner who are the wife, son and mother of the deceased Honnegowda were depending on the earnings of deceased Honnegowda. Due to the untimely death of Honnegowda they were under the dark. The petitioner of both the 5 MVC No.3010/2016 c/w 3011/2016 cases have requesting to pass the award as prayed in their respective claim petition.
3. In response to the notice, the 1st and 2nd respondents have appeared through their counsel. But, the 2nd respondent alone resisted the case of the petitioners by filing objection by contending that the claimants of both the cases have filed their respective claim petition on a imaginary ground and compensation claimed by them is excessive, exorbitant and arbitrary. This accident was occurred on a rash and negligent riding of the rider of the motor bike by name Honnegowda. So, the owner of motor bike and insurer are the necessary parties. Therefore, the claim petition filed by the petitioners are bad for non-joinder of necessary parties. The 2nd respondent has contended that the driver of offending vehicle did not have a valid and effective driving licence on the date of accident. The 2nd respondent has denied the earnings of deceased Madukumar and Honnegowda. Hence, the 2nd respondent has requested to dismiss the claim petitions.
6 MVC No.3010/2016 c/w 3011/2016
4. On the basis of the pleadings of the parties, my learned Predecessor framed the following:
Issues in MVC Nos.3010 of 2016
1. Whether the petitioners prove that the deceased Sri.D.K.Madukumara was died in a road traffic accident that occurred on 08.03.2016 at about 8:50 a.m., on Dabaspet-Doddballapura Road, in front Lavanya School, near the road hump whether deceased was pillion rider in a motor cycle bearing No.KA-02-
HX-7613, due to rash and negligent act of driving of the Bolero car driver, vehicle bearing No.KA-27-B-4593 as alleged in the petition?
2. Whether the petitioners prove that they are the legal representative of deceased and they are depending on the income of the deceased?
3. Whether the petitioners are entitled for compensation from whom?
4. What order or award?
7 MVC No.3010/2016 c/w 3011/2016
Issues in MVC Nos.3011 of 2016
1. Whether the petitioners prove that the deceased Sri.Honnegowda was died in a road traffic accident that occurred on 08.03.2016 at about 8:50 a.m., on Dabaspet-Doddballapura Road, in front Lavanya School, near the road hump whether deceased was pillion rider in a motor cycle bearing No.KA-02-HX-7613, due to rash and negligent act of driving of the Bolero car driver, vehicle bearing No.KA-27-B-4593 as alleged in the petition?
2. Whether the petitioners prove that they are the legal representative of deceased and they are depending on the income of the deceased?
3. Whether the petitioners are entitled for compensation from whom?
4. What order or award?
5. In order to prove the case of the petitioners, the 1st petitioner of MVC 3010/2016 got himself examined as PW-1 and documents Ex.P-1 to Ex.P-20 are got marked. 8 MVC No.3010/2016 c/w 3011/2016
In order to prove the case of petitioners, the 1st petitioner of MVC 3011/2016 who is the wife of deceased Honnegowda got herself examined as PW-2 and PW-3 is examined on her behalf and documents Ex.P-21 to Ex.P-36.
In order to prove the defence of respondents, the respondents have failed to enter into witness box.
6. I have heard lengthy arguments from both sides.
7. After assessing the oral and documentary evidence and after hearing the arguments, my findings to the above issues are as under:
Issue No.1: Affirmative Issue No.2: Petitioners are entitled compensation of Rs.9,39,000/- in MVC 3010/2016 and Rs.18,77,800/- in MVC 3011/2016 from the 1st respondent with 6% p.a, interest on the said amount from the date of petition, till deposit of amount before the Court, Issue No.3: As per final order, For the following:
9 MVC No.3010/2016 c/w 3011/2016
REASONS
8. Issue No.1 in both the cases: I have carefully scrutinized the oral evidence of PW-1, PW-2 along with documents pertaining to the criminal case. The PW-1 and PW-2 are not a eye witness to the incident. But know the manner of accident from the person who have seen the same. I have carefully scrutinized the FIR, complaint, charge sheet and rough sketch. These documents are marked at Ex.P-3 to Ex.P-15 and Ex.P-18 respectively. As per these documents the Honnegowda was riding his motor bike slowly by following all traffic rules. When his motor bike was moving on the road, the driver of the offending vehicle drove the same rashly and negligently and dashed against ongoing ahead motor cycle of the Honnegowda. As a result of impact, the rider and pillion rider of the motor cycle fell down along with their motor cycle and sustained multiple head injuries. The available records speaks that both of them succumbed to their injuries sustained in the accident. The rough sketch speaks that this accident was occurred on a rash and negligent driving of the driver of the offending vehicle. So, the question of 10 MVC No.3010/2016 c/w 3011/2016 contributory negligence does not arise at all. Hence, I answered this issue in both the cases Accordingly.
9. Issue Nos.2 and 3 in MVC 3010/2016: The petitioner of MVC 3010/2016 are the parents of deceased D.K.Madukumar, who was studying 2nd year B.A. on the date of accident. He was 19 years old. The evidence of PW-1 who is the father of deceased Madukumar reveals that deceased Madukumar was 19 years old on the date of accident and he was earning Rs.12,000/- p.m., from his milk wending business and tuition and contributing Rs.10,000/- towards his family. But, the petitioners do not produced any documents to prove his exact income. But, the available records i.e., SSLC marks card and BA marks card of the deceased D.K.Madukumar reveals that he was a brilliant student and had a bright future. He did passed his SSLC in first class. The marks card pertaining to the education of deceased Madukumar are sufficient to show that he was a brilliant student and had a bright future. He would have earn more if he alive. The advocate for petitioner vehemently argued that the income of 11 MVC No.3010/2016 c/w 3011/2016 deceased Madukumar may be fixed at Rs.12,000/- p.m., and future prospects may be consider while calculating the loss of dependency. In support of his argument he has relied on a decision reported in 2014 ACJ 1441 and 2013 ACJ 1403. I have gone through the law laid down in the decision cited by the advocate for the petitioners. The facts of the above 2 decisions and facts of the case on hand are altogether different. Therefore, the law laid down in the above 2 decisions would not applicable to the case on hand. As I have already discussed in my above judgment and held that the deceased Madukumar was a brilliant student and had a bright future. He would have earn more if he alive. As per educational record of the deceased Madukumar, he was 20 years old on the date of his death. We have to fix his monthly income by considering his age, education and where he was staying. Admittedly, he is a brilliant student and studying at rural areas. Considering his qualification, intelligence, his profession, it is just and proper to fix his monthly income notionally at Rs.8,000/-. He was a bachelor. Therefore we have to deduct 50% in his monthly income. If we deduct 50% in his 12 MVC No.3010/2016 c/w 3011/2016 income, the net income would become as 8,000 - 4,000 = Rs.4,000/-. He was 20 years old on the date of his death. So, the appropriate multiplier is '18'. Therefore, the loss of dependency would work out as 4,000 X 12 X 18 = Rs.8,64,000/-. Hence, I am awarding Rs.8,64,000/- under the head of "loss of dependency".
10. In addition to this, I am awarding Rs.50,000/- towards "loss of love and affection" and Rs.25,000/- towards "transportation of dead body".
11. In all I award Rs.9,39,000/- under the following heads:
Sl.No. Particulars Amount
1 Loss of dependency Rs.8,64,000/-
2 Loss of love and Rs.50,000/-
affection
3 Transportation of dead Rs.25,000/-
body
Total Rs.9,39,000/-
12. The advocate for the petitioner vehemently submits that the future prospects of the petitioner may be taken while calculating the loss of dependency. In support of their argument they had relied on the decisions reported in 2014 ACJ 1441 and 13 MVC No.3010/2016 c/w 3011/2016 2013 ACJ 1403. But, the facts of the above decisions are altogether different facts of the case on hand. Therefore, the law laid down in the above decision are not applicable to the case on hand. Here we shall turn our attention on a decision of Hon'ble High Court of Karnataka reported in MFA 9119/2008 between Smt. Ayesha Begum and another V/s Saradarulla Khan and others. The Hon'ble High Court of Karnataka held in para No.22 of its judgment as the additional amount towards the future prospects depends on the evidence in each case regarding the age of victim, his occupation, nature of his employment, the prospects of earning steady and increased income. Therefore, that only in respect of a person, who has an assured job or a government employment, entitlement for award of compensation under the head future prospects would arise. In the case on hand the deceased Madukumar was not a permanent employee and did not have a steady income. Therefore, the petitioners are not entitle any future prospects. With these observations, I answered these issues Accordingly.
14 MVC No.3010/2016 c/w 3011/2016
13. Issue Nos.2 and 3 in MVC 3011/2016: I have carefully scrutinized the oral evidence of PW-2 along with Ex.P-
26. The PW-2 is the wife of deceased Honnegowda. As per her evidence her husband was working as an cutter in cutting section in BIL TEEK Factory on Doddaballapura on a monthly salary of Rs.15,290/-. As per the evidence of PW-3 who is the Manager of BILTEEK Fashions Pvt. Ltd., the deceased Honnegowda was working in their company as an permanent employee and was earning R.15,290/-. The petitioner has produced notarized documents to show that deceased Madukumar working in their company. The Ex.P-31 is a appointment letter. I have carefully scrutinized the Ex.P-31. The Ex.P-31 thrown much light on subject, whether the deceased Honnegowda was a permanent employee? But, the Ex.P-31 speaks that he is not a permanent employee and he did not have steady income. As per Ex.P-31 the company may take decision for termination of Honnegowda without notice or intimation. The company has mentioned terms and conditions in the appointment letter of the Honnegowda marked at Ex.P-31. As per terms and conditions mentioned at 15 MVC No.3010/2016 c/w 3011/2016 serial No.16 speaks that the company may take action for termination by giving one month notice or salary in lieu of notice. It goes to shows that he is not a permanent employee and his employment was not a secured and assured. Therefore, the petitioner is not entitle future prospects in addition to loss of existing salary.
14. Once again, I have gone through the entire documents produced by PW-3. All the document are sufficient to say that the deceased Honnegowda was working as a cutter in cutting section on a monthly salary of Rs.15,290/- p.m. But, his employment is not secured and assured and he was not a permanent employee under the company. I have gone through the Ex.P-26 which is pay slip of the deceased Honnegowda. As per this document, the gross salary of Honengowda was Rs.15,290/-. Out of this gross salary we have to deduct Rs.200/- towards PT, Rs.300/- towards canteen expenses and Rs.600/- towards conveyance charges. If we deduct above compulsory deduction in his gross salary the net salary would become 16 MVC No.3010/2016 c/w 3011/2016 Rs.15,290 - Rs.1,100 = Rs.14,190/-. Out of this we have to deduct 1/3rd towards his personal expenses of deceased Honnegowda. If we calculate his monthly net income after deducting 1/3rd in his monthly income it would become Rs.14,190 X 1/3rd = Rs.9,460/-. As per available records the deceased Honnegowda was 36 years old on the date of accident. So, the appropriate multiplier is '15'. Therefore, the loss of dependency would work out as 9,460 X 12 X 15 = Rs.17,02,800/-. Hence, I am awarding Rs.17,02,800/- under the head of "loss of dependency".
15. In addition to this, I am awarding Rs.1,00,000/- towards "loss of consortium", Rs.50,000/- towards "loss of love and affection to the 2nd and 3rd petitioners" and Rs.25,000/- towards "transportation of dead body".
16. In all I award Rs.18,77,800/- under the following heads:
17 MVC No.3010/2016 c/w 3011/2016
Sl.No. Particulars Amount
1 Loss of dependency Rs.17,02,800/-
2 Loss of consortium Rs.1,00,000/-
3 Loss of love and Rs.50,000/-
affection to the 2nd and
3rd petitioners
4 Transportation of dead Rs.25,000/-
body
Total Rs.18,77,800/-
17. The advocate for the petitioner vehemently argued that deceased Honnegowda was a permanent employee and have a steady income. Therefore, the future prospects may be taken consideration while calculate the loss of dependency. In support of his argument he has relied on a decision reported in 2013 ACJ 1403 and 2009 ACJ 1298. I have given careful consideration to the points urged by the advocate for petitioner and I have gone through the law laid down in the decisions cited by the advocate for the petitioner. The facts of the above decisions are altogether different to facts of the case on hand. Therefore, the law laid down in the above decisions would not applicable to the case on hand. Here we shall turn our attention 18 MVC No.3010/2016 c/w 3011/2016 on a decision of Hon'ble High Court of Karnataka reported in MFA 9119/2008 between Smt. Ayesha Begum and another V/s Saradarulla Khan and others. The Hon'ble High Court of Karnataka held in para No.22 of its judgment as the additional amount towards the future prospects depends on the evidence in each case regarding the age of victim, his occupation, nature of his employment, the prospects of earning steady and increased income. Therefore, that only in respect of a person, who has an assured job or a government employment, entitlement for award of compensation under the head future prospects would arise. In the case on hand the deceased Honnegowda was a permanent employee and did have a steady income.
18. It is proved fact that this accident was occurred due to rash and negligent driving of the driver of the offending vehicle. The driver of the offending had valid and effective driving licence. The policy was in force. The 2nd respondent being the insurer of the vehicle. Therefore the 2nd respondent has directed to deposit 19 MVC No.3010/2016 c/w 3011/2016 the amount as stated in my judgment. With these observations, I answered these issues Accordingly.
19. Issue No.4: In view of the discussion made supra, I proceed to pass the following :
ORDER The claim petitions U/Sec., 166 of Motor Vehicles Act filed by the petitioners are hereby allowed in part with cost.
The petitioners are awarded total compensation of Rs.9,39,000/- in MVC 3010/2016 and Rs.18,77,800/- in MVC 3011/2016 with interest at the rate of 6% p.a. from the date of petition till the deposit of the amount in the tribunal.
The 2nd respondent is liable to pay compensation to the petitioners.
The 2nd respondent shall deposit the compensation amount in the tribunal within the two months from the date of this decree.
In MVC 3010/2016 after deposit of the compensation amount, 50% each of the amount shall be kept in FD in the name of petitioners in Karnataka Bank, City Civil Court 20 MVC No.3010/2016 c/w 3011/2016 branch, Bangalore for a period of five years and the balance amount shall be released to them through account payee cheques.
In MVC 3011/2016 out of the compensation amount, petitioner Nos.1 and 2 are entitled 40% each and petitioner No.3 is entitled 20%.
After deposit of the compensation amount, 50% each of the amount shall be kept in FD in the name of 1st petitioner in Karnataka Bank, City Civil Court branch, Bangalore for a period of five years and the balance amount shall be released to her through account payee cheques.
Since the 2nd petitioner being minor, entire compensation amount shall be deposited in FD in his name in Karnataka Bank, City Civil Court branch, Bangalore till he attain the age of majority.
The 3rd petitioner is at liberty to withdraw her entire compensation amount with interest.
Advocate fee is fixed at Rs.1000/- in each case.
Keep original Judgment in MVC 3010/2016 and copies in other case.21 MVC No.3010/2016 c/w 3011/2016
Draw award accordingly.
(Dictated to the stenographer, transcript thereof is corrected and then pronounced by me in the Open Court on this the 23rd day of January 2017) (N.N.YALAVATTI) XXI ADDL. SMALL CAUSES JUDGE, BANGALORE.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONERS IN BOTH THE CASES PW-1: D.C.Krishnamurthy PW-2: Kala.S PW-3: Jayaraman.S LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONERS IN ALL THE CASES Ex.P-1: SSLC markd card of Madukumar Ex.P-2: 1st year PUC marks card Ex.P-3: 2nd year PUC marks card Ex.P-4:
And 1st and 2nd Semester BA marks cards
Ex.P-5:
Ex.P-6: College ID card
Ex.P-7: NCC certificate
22 MVC No.3010/2016 c/w 3011/2016
Ex.P-8: Document pertaining to blood donation
Ex.P-9: 2 computer education certificate
Ex.P-10: 3 certificates
Ex.P-11: Ration card
Ex.P-12: RTC
Ex.P-13: FIR
Ex.P-14: Complaint
Ex.P-15: Charge sheet
Ex.P-16: Inquest report
Ex.P-17: IMV report
Ex.P-18: Spot sketch
Ex.P-19: Account of Corporation Bank
Ex.P-20: PM report
Ex.P-21: SSLC marks card of Honnegowda Ex.P-22: Aadhar card Ex.P-23: Birth certificate of Kishor Ex.P-24: Salary certificate Ex.P-25: Salary certificate Ex.P-26: Pay slip Ex.P-27: ID card Ex.P-28: Ration card Ex.P-29: Authorization letter Ex.P-30: ID card Ex.P-31: Appointment letter of Honnegowda Ex.P-32: Employee personal file 23 MVC No.3010/2016 c/w 3011/2016 Ex.P-33: Progressive wage register Ex.P-34: Application for employment Ex.P-35: Inter assessment Ex.P-36: Form of nomination LIST OF WITNESSES EXAMINED ON BEHALF OF THE RESPONDENTS IN BOTH THE CASES:
None LIST OF DOCUMENTS MARKED ON BEHALF OF THE RESPONDENTS IN BOTH THE CASES Nil (N.N.YALAVATTI) XXI ADDL. SMALL CAUSES JUDGE, BANGALORE.