Bangalore District Court
Raman V vs N.Mallesh on 30 May, 2016
BEFORE THE COURT OF SMALL CAUSES AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, AT BANGALORE (SCCH-16)
PRESENT: SRI SATISH J.BALI,
B.Com., LL.M.,
X Addl.Judge, Court of Small Causes
(SCCH-16) Bangalore.
DATED THIS THE 30th DAY OF MAY 2016.
MVC.No.6575/2013
PETITIONERS: 1. Raman V,
S/o Late Veeran,
Aged about 40 years,
2. Muniswamy,
S/o Late Veeran,
Aged about 35 years,
Both are residing at No.12,
Bande Slum,
17th Cross, 7th Main,
Lakkasandra Layout,
Bengaluru.
(Pleader Sri.Shivalinge Gowda)
V/s
RESPONDENTS: 1. N.Mallesh,
S/o Nanjappa,
No.15, Konanakunte,
Old Bank Colony,
Kanaka Road,
Bengaluru-560 062
(R.C.Owner of Motor cycle
bearing Reg.No.KA-05-EW-
5294)
(Pleader Sri.T.H.Narayana)
2 MVC.6575/13
SCH-16
JUDGMENT
The legal representatives of Panchali have filed this petition under Sec.166 of the M.V.Act claiming compensation of Rs.20,00,000/- on account of death of Panchali in road traffic accident.
2. The brief facts of the petition averments are as under:
On 20-3-2012 at about 7.00p.m., deceased was proceeding as pedestrian on B.G.Road by observing all the vehicular movements was crossing the road at Chinaiyan Palya junction, at that time, suddenly, the rider of motor cycle bearing No.KA.05/EW-5294 came from Anepalya towards Chinaiyana Palya in a rash and negligent manner, without observing the traffic rules and regulations and dashed against the deceased. Due to the impact, the deceased fell down and sustained grievous injuries all over the body.
3. Immediately after the accident, Panchali was taken to Agadi hospital, wherein first-aid-treatment was given and thereafter wards, she was referred to St.Marthas hospital, wherein, she took treatment till 26-3-12 and on the said date, inspite of best treatment, Panchali breathe her last. After 3 MVC.6575/13 SCH-16 conducting the Post-mortem, at Victoria hospital, they have handed over the dead body to her relatives.
4. Prior to the date of accident, the deceased was hale and healthy and earning Rs.8,000/-p.m. by doing cleaning work at various houses. The deceased was contributing her entire income for maintenance of the family. Due to sudden demise of Panchali, the petitioners were put to mental shock and lost their only bread earning member in their family. The Audugodi Traffic Police have registered a case against the driver of vehicle in crime No.32/2012. Hence, the petitioners prayed to allow the petition.
5. In response to the summons, respondent appeared before this Tribunal and filed his written statement.
The Respondent has filed objections denying the manner of accident, involvement of offending motor cycle bearing No.KA.05/EW.5294 in the accident. It is contended that the rider of motor cycle was not having valid and effective DL at the time of accident. The respondent further denied the death was due to rash and negligent riding of motor cycle by him. The respondent contended that on the day of accident, he was riding the motor cycle in normal speed. The B.G road 4 MVC.6575/13 SCH-16 at Chinaiyana Palya junction is a main road there is no pedestrian crossing. The accident was due to negligence on the part of the deceased herself and she was crossing the road, where there was no Zebra crossing. The respondent admitted that the criminal case was filed against him. It is contended that the compensation claimed by the petitioners is exorbitant and excessive. On all these grounds, Respondent prayed to dismiss the petition.
6. On the basis of the above pleadings and propositions of law, the following issues have been framed:
ISSUES
1. Whether the petitioners prove that the deceased Smt.Panchali W/o. Late.
Veeran met with a motor vehicle accident on 20.03.2012 at 7.00 p.m. on B.G. Road at Chinaiyana Palya Junction, Bengaluru and died due to the rash and negligent driving of the driver of the Motor Cycle bearing registration no. KA-05-EW-5294?
2. Whether the petitioners prove that they are entitled for compensation? If so, to what amount and from Whom?
3. What order or Award?
7. To prove the above issues, the Petitioner No.1 examined before this Tribunal as PW-1 and got marked 5 MVC.6575/13 SCH-16 documents at Ex.P.1 to P.13. The respondent has not led any evidence on his behalf.
8. I have heard the arguments and perused materials on record.
9. By considering the evidence on record and because of my below discussed reasons, I answer the above issues in the followings:
Issue No.1: Partly in the Affirmative Issue No.2: Partly in the Affirmative Issue No.3: As per final order for the following:
REASONS ISSUE NO.1:
10. It is the specific case of the petitioners that on 20-3- 2012 at about 7p.m, that the deceased Panchali met with an accident due to rash and negligent riding of motor cycle bearing No.KA.05/EW-5294, because of which, she died. The respondent denied that the accident was due to rash and negligent riding of motor cycle by its rider. Hence, it is incumbent upon the petitioners to prove that the accident was due to rash and negligent riding of motor cycle bearing No.KA.05/EW.5294.
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SCH-16
11. The petitioner No.1 has reiterated the petition averments in his affidavit filed in lieu of examination-in-chief as PW-1. He has spoken with regard to the rash and negligent riding of offending motor cycle by its rider. PW-1 further deposed about the treatment taken by the deceased and her death on 26-3-12. He has deposed that Audugodi Traffic police have registered the criminal case against rider of offending vehicle. PW-1 deposed regarding the income and avocation of the deceased.
12. Apart from the above said oral evidence, PW-1 has produced the copy of FIR at Ex.P.1, complaint at Ex.P.2, charge sheet at Ex.P.3, statement of witnesses at Ex.p.4, spot mahazar at Ex.P.5, IMV report at Ex.P.6, sketch at Ex.P.7, inquest panchanama at Ex.P.8, Post-mortem report at Ex.P.9,medical bills at Ex.P.10, prescriptions at Ex.P.11, election ID card of deceased at Ex.P.12 and Adhaar card at Ex.P.13.
13. PW-1 was cross examined, wherein, he has stated that the spot of accident is a busy road and there is no zebra crossing at the spot of accident. He has stated that the deceased was taken to the hospital between 7.30 to 8p.m. 7 MVC.6575/13
SCH-16 and he came to know about the accident through phone call by Dandapani. PW-1 stated that the spot of accident is one kilometer away from his house and he took the deceased to the hospital along with rider of offending motor cycle. Pw-1 has stated that in the hospital, the deceased told him that the accident was caused by the rider of offending motor cycle.
14. From perusal of above said cross-examination of Pw-1, it is quite clear that the Pw-1 is not an eye witness to the accident and place of accident is a busy road. There was no Zebra crossing at the spot of accident. Ex.P.2-complaint reveals that PW-1 lodged the complaint by stating that on 20-3-12 at about 7p.m. when his mother tried to cross the road at Chinaiyana playa junction, B.G.Road, at that time, rider of motor cycle bearing NO.KA.05/EW.5294 came from Anepalya side towards Chinaiyana Palya, in a rash and negligent manner and immediately he took right turn, because of which, the motor cycle dashed to his mother and she died on 26-3-12. As per the averments of complaint, the accident took place on 20-3-12 and the complaint was lodged on 26-3-12. In the complaint itself, the complainant has stated that from the date of accident, he was engaged in 8 MVC.6575/13 SCH-16 getting treatment to his deceased mother and on the very same day of accident, he could not lodge the complaint. More over, the respondent has not disputed the delay in lodging the complaint. Even though, there is delay of 6days in lodging the complaint, as the reasons for delay in lodging the complaint has been specifically stated and it cannot be said that the delay is unexplained.
15. On the basis of Ex.P.2-complaint, the jurisdictional police have lodged the FIR in Cr.No.32/12 for the offence punishable under Sec.279 and 304(A) of IPC r/w.Sec.187 and 134(B) of MV Act. During the course of investigation, the police have conducted the spot panchanama at Ex.P.5, IMV report at Ex.P.6, sketch at Ex.P.7 and recorded the statement of witnesses at Ex.P.4 and come to the inclusion that the accident was due to the rash and negligent riding of motor cycle by its rider and they have filed charge sheet as per Ex.P.3 for the offence punishable under Sec.279 and 304(A) of IPC r/w.Sec.187 and 134(B) of MV Act. Post-mortem report at Ex.P.9 reveals that the death of Panchali was due to the accidental injuries.
9 MVC.6575/13
SCH-16
16. It is to be noted that as per Ex.P.7-sketch was prepared. PW-1 during the course of cross-examination has admitted that the spot of accident was a busy road and there was no Zebra crossing. Ex.P.7-sketch reveals that the deceased tried to cross the road from main road towards Anepalya, at that time, rider of motor cycle came from Anepalya towards Cjinaiyana playa main road and when she tried to cross the road, at that time, motor cycle hit to the deceased. It is to be noted that on perusal of sketch at Ex.P.7, it is quite clear that the accident took place in the middle of the road. More over, as per sketch and also as per admission of PW-1, there was no Zebra crossing at the place of accident. Hence, it is incumbent upon the deceased to be cautious at the time of crossing the road, as there was no Zebra crossing. The deceased was not expected to cross the road, when there was no Zebra crossing and she ought to have crossed the road by alternatively. But, in this case, the deceased tried to cross the road, where there was no Zebra crossing and she was also responsible for cause of the accident. However, it cannot be last said that the deceased was aged about 65 years as per Post-mortem report. It is also 10 MVC.6575/13 SCH-16 duty on the part of the respondent/rider of motor cycle to be cautious, when he was riding the vehicle, taking right turn of the motor cycle, where there was no Zebra crossing. Hence, merely because, the accident took place when the deceased tried to cross the road, where was no zebra crossing, which is meant for pedestrian crossing, it cannot be said the respondent/rider is not at all responsible for cause of the accident. Considering the nature of vehicle involved in the accident and manner in which the accident took place, I feel it is just and proper to hold the contributory negligence on the part of the rider of motor cycle as 75% and on the part of the deceased as 25%. Accordingly, I answer Issue No.1 partly in the affirmative.
ISSUE NO 2:
17. The voters ID of the deceased marked at Ex.P.12 reveals that her date of birth was 1-1-1948. As per Post- mortem report, the deceased was aged about 65 years at the time of her death. The accident took place on 20-3-2012. Therefore, as per Ex.P.12-Post-mortem report, the deceased was aged about 65 years as on the date of accident. Though, PW-1 says that the deceased was earning Rs.8000/-p.m. from 11 MVC.6575/13 SCH-16 doing house hold work at various houses, but, there is no documentary evidence to that effect. Therefore, even if she is considered as servant, she might have earned Rs.7,000/-p.m. Hence, notional income of the deceased considered as Rs.7,000/-p.m.
18. As the deceased was aged about 65 years. Therefore, the future prospectus cannot be taken into account, for the said age group. Further, in another rulings of Apex court reported in Civil Appeal No.4497/2015 between Munnalal Jain and another vs Vipin Kumar Sharma and others) held that the age of the deceased should taken into account for applying the proper multiplier.
19. In this case, the deceased was aged about 65years as on the date of accident and the proper multiplier applicable to the said age is 7. As per the petition, the husband and son of the deceased are shown as dependents. Hence, 1/3rd has to be deducted towards her personal expenses. Hence, the following calculations:
(i) Notional income arrived at ...Rs.7000/-p.m. Less 1/3 deducted as personal expenses of the deceased. ...Rs. 7000-2,335-= ... Rs.4665/-x12x7= 12 MVC.6575/13 SCH-16 Compensation after multiplier of 7 is applied ... Rs.3,91,860/-
The petitioners are entitled for the compensation of Rs.3,91,860/-under the head loss of dependency.
20. 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. In this case, since the deceased has left behind her husband and son, 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.1,00,000/- as compensation to the widower of the deceased for loss of love and affection, pains 13 MVC.6575/13 SCH-16 and sufferings, loss of consortium, deprivation of protection, social security etc., and Rs.25,000/- towards cost incurred on account of funeral and ritual expenses.
21. The details of compensation I propose to award are as under:
Sl.No. Head of Compensation Amount/Rs
1. Loss of dependency 3,91,860/-
2. Compensation to family 1,00,000/-
members (children and family members other than wife) for loss of love and affection, deprivation of protection, social security etc.,
3. Compensation to widower of 1,00,000/-
the deceased for loss of love
and affection, pains and
sufferings, loss of consortium,
deprivation of protection,
social security etc.,
4. Funeral Expenses 25,000/-
Total 6,16,560-00
In all, the Petitioners are entitled for compensation of Rs.6,16,560/-. Since, the deceased has contributed 25% negligence for cause of the accident, the petitioners are entitled to recover only 75% of the compensation amount from the respondent. 75% of the above compensation would 14 MVC.6575/13 SCH-16 be Rs.4,62,645/-. Hence, I hold that the petitioners are entitled for the compensation of Rs.4,62,645/-. Interest:
22. 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 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. 15 MVC.6575/13 SCH-16 Liability:
23. While answering issue No.1, it was come to the conclusion, that the accident was occurred on account of rash and negligent riding of motor cycle bearing No.KA.05/EW.5294 by the respondent. The respondent being owner of the offending vehicle is liable to pay compensation to petitioners with interest at 9% p.a. Accordingly, issue No.2 is answered partly in the affirmative.
ISSUE No.3:-
24. In view of my above findings, the petition is deserves to be partly allowed. Hence, I proceed to pass the following order:
ORDER The petition filed by the Petitioners is allowed in part.
The Petitioners are entitled for compensation of Rs.4,62,645/-. (Rs.Four Lakhs sixty two thousand six hundred forty five Only) with interest at the rate of 9% p.a. from the date of petition till realisation.
The Respondent is liable to pay the award amount. Respondent is directed to pay the 16 MVC.6575/13 SCH-16 compensation amount within two months from the date of this order.
Compensation amount is apportioned as follows:-
Petitioner No.1 -son 50%
Petitioner No.2 -Son - 50%
Out of the said compensation amount
awarded, 50% of the compensation amount with proportionate interest shall be deposited in the name of the Petitioner Nos.1&2 as FD in any nationalized bank for a period of five years (without any encumbrance or premature withdrawal) with liberty to draw the accrued interest periodically and the remaining 50%amount with proportionate interest shall be released to the Petitioner Nos1&2 through A/c payee cheque on proper identification and verification.
Advocate's fee is fixed at Rs.1,000/-. Draw an award accordingly.
(Dictated to the stenographer, transcribed by her, corrected and then pronounced in the open court this the 30th day of May 2016) (SATISH.J.BALI) MEMBER:MACT, BANGALORE.
ANNEXURE Witnesses examined on behalf of petitioners:
PW.1 : Raman.V
17 MVC.6575/13
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Documents marked on behalf of petitioners:
Ex-P1 FIR Ex-P2 Complaint Ex-P3 Charge Sheet Ex-P4 Statement of witnesses (3 in Nos.) Ex-P5 Spot Mahazar Ex-P6 IMV Report Ex-P7 Sketch Ex-P8 Inquest Panchanama Ex-P9 PM Report
Ex-P10 Medical Bills (19 in Nos) amounting to Rs.
21,592/-
Ex-P11 13 Prescriptions.
Ex-P12 N.C. of Election I.D. of deceased Ex-P13 N.C. of 2 Adhaar Cards Witnesses examined on behalf of respondents: NIL Documents marked on behalf of the respondents:
-NIL-
(SATISH.J.BALI), MEMBER, MACT BANGALORE.