Bangalore District Court
Smt.Beulah vs Satish Chandra.C on 18 December, 2021
KABC020249742019
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS
TRIBUNAL, BENGALURU CITY
SCCH4
PRESENT: RAJU.M., M.A., LL.B.,
Member, MACT
XVIII ADDL. JUDGE,
Court of Small Causes,
BENGALURU.
Dated this the 18th day of December 2021
MVC No.5932/2019
PETITIONERS: 1.Smt.Beulah,
W/o Late Dilip Kumar.J
Aged about 30 years.
2.Stephen.D.
S/o Late Dilip Kumar.J
Aged about 7 years.
3.Joyson.D.
S/o Late Dilip Kumar.J
Aged about 4 years.
Petitioners 2 & 3 being minors
reptd. By their mother and
natural guardian
Smt.Beulah, Ptr.No.1
SCCH4 2 MVC No.5932/2019
All are r/at No.56, N.T.Block
1st Division, Near Oorgum
Railway station, Bangarpet,
K.G.F.Kolar District
(By Sri.HLC., Adv.,)
V/s
RESPONDENTS: 1.Satish Chandra.C.
Major,
S/o Chandrappa.V.
R/o Kavalagiriyanahalli
(K.G.Halli) Village,
Tekal Post, Malur Taluk,
Kolar district.
(RC owner of bus bearing
No.KA01AB4617)
(Exparte)
2. Shriram General Insurance
Co.Ltd.,
Regional Office, T.P.Hub,
# 5/4, 3rd floor, S.V.Arcade,
Bilekahalli Main Road,
Bilekahalli Off B.G.Road,
IIM Post, Bengaluru 560 076.
(Insurer of bus bearing
No.KA01AB4617)
Policy No.
10003/31/19/223742
valid from 08.08.2018
to 07.08.2019.
(By Sri.SNR., Adv.,)
SCCH4 3 MVC No.5932/2019
JUDGMENT
The petitioners being the wife and sons of deceased Dilip Kumar have filed this petition U/s 166 of the Motor vehicles Act claiming compensation for the death of Dilip Kumar, in a motor vehicle accident that occurred on 29.03.2019.
2. The case of the petitioners, in brief, is as follows:
On 29.03.2019 at about 8.20 p.m., deceased Dilip Kumar driving his autorickshaw bearing No.KA03AE 3462 carefully and cautiously on the left side of BangarpetKGF main road from Robertson pet towards Oorgaum, reached near Thiruvalluvar statue, N.T.Block Oorgaum, K.G.F, at that time a bus bearing No.KA01 AB4617 driven by its driver at high speed in rash and negligent, all of a sudden came to its extreme right/wrong side of the road towards down side and dashed against autorickshaw. As a result, the said autorickshaw turned SCCH4 4 MVC No.5932/2019 turtle, thereby the deceased died on the spot and his autorickshaw also damaged extensively.
Immediately after the accident, the body of the deceased was taken to Government General hospital, KGF wherein postmortem was conducted and the dead body was handed over to the petitioners and conducted funeral and obsequies ceremonies. The petitioners have spent Rs.1,00,000/ towards transportation of dead body, funeral and other expenses.
The deceased was hale and healthy and was working as autorickshaw owner cum driver and earning Rs.30,000/ per month. The deceased was the only bread earner of the family. The deceased was contributing his entire income for the welfare and maintenance of his family, due to the untimely death of deceased the petitioners have suffered mentally and physically, they have lost their bread earner.
SCCH4 5 MVC No.5932/2019 The petitioner No.1 is wife and petitioner No.2 and 3 are children of the deceased, have lost their beloved care taker. The respondents No.1 and 2 are the owner and insurer of the offending vehicle are jointly and severally liable to pay compensation to the petitioners. Hence prays to award compensation of Rs.1,00,00,000/ with interest.
3. After service of notice, the respondent No.1 remained absent hence and placed exparte. The respondent No.2 appeared through its counsel and has filed written statement, The respondent No.2 in its objection statement has admitted the issuance of the insurance policy tot the bus bearing Reg.No. KA01AB4617 at the time the alleged accident. Further contended that, the deceased/driver of the auto rickshaw has not exercised proper care and caution and has suffered self accident and consequently, as the petition is filed against the selfnegligence of the SCCH4 6 MVC No.5932/2019 deceased/driver of the said auto rickshaw. The insured has knowingly entrusted the vehicle to the driver who had no valid and effective driving license to drive the class of vehicle at the time of the alleged accident. The deceased himself is responsible and main architect for this unfortunate alleged accident. Further contended that, the contributory negligence on the part of the deceased and driver of the bus, the compensation has to be reduced to the extent of negligence of the driver/deceased of the auto rickshaw. Further denied that, age, avocation and income of the deceased. The compensation has claimed by the petitioners is exorbitant and excessive. Hence, the respondent No.1 has prays to dismiss the petition with cost.
4. On the basis of the rival contentions, the following issues were framed by this court:
SCCH4 7 MVC No.5932/2019
1. Whether the Petitioners prove that deceased Dilip Kumar.J was died in RTA arising out of accident alleged to have been taken place on 29.03.2019 at about 8.20 p.m. near Thiruvalluvar statue, Bangarpet KGF main road, NT Block, Oorgaum, K.G.F. due to the rash and neglgience driving of driver of bus bearing No.KA01AB4617?
2. Whether the petitioners prove that they are the dependents of the de ceased?
3. Whether the petitioners are entitled for compensation? If so, what amount and from whom?
4. What order or award?
5. In order to prove the claim petition, the 1 st petitioner is examined as PW.1 and got marked the documents at Ex.P.1 to Ex.P.15. The driver has examined as RW.1. The respondent No.2 has examined its official as RW.2.
SCCH4 8 MVC No.5932/2019
6. I have heard the arguments of counsel for both parties and perused the material evidence that is available on record.
7. My findings on the above issues are as under.
Issue No.1: In the affirmative,
Issue No.2 : In the affirmative.
Issue No.3: Partly in the affirmative,
Issue No.4: As per the final orders
for the following.
REASONS
ISSUE NO.1:
8. That by reiterating all the averments made in the petition, the petitioner No.1 has filed her affidavit in lieu of chiefexamination, which is considered as P.W.1. The petitioners to prove their case, have produced true copies of FIR, complaint, mahazar, Inquest report, PM report, IMV report, Sketch and charge sheet which are marked under Ex.P.1 to 8. On going through the documents, Anitha said to be the sister of the decesed SCCH4 9 MVC No.5932/2019 Dilip @ Dilip Kumar, has lodged complaint with Oorigaum police ,KGF, on 29.03.2019, alleging that, deceased was working as driver of autorickshaw, on 29.03.2019 at about 8.30 p.m., the complainant received a phone call from her sister Sunitha that, deceased met with an accident committed by private bus and died on the spot itself and the dead body was shifted to Roberson Pet General Hospital, while the complainant was on the way to the Hospital, saw the autorickshaw which was fully damaged and fell on the spot.On enquiry the complainant came to know that, the private bus bearing Reg.No.KA01AB4617 which was on the spot d dashed to the Autorickshaw and driver of the autorickshaw died on the spot.
9. Upon receiving the complaint the police have registered FIR against Lalookhan. Thereafter the police have visited the place of accident and drawn spot SCCH4 10 MVC No.5932/2019 mahaar as well as inquest report which are marked under Ex.P.3 and 4. As mentioned in the mahazar front portion of the autorickshaw fully damaged. Likewise, front portion of the K.K.Travels private bus bearing Reg.No.KA 01AB4617 also damaged. Ex.P.5 is the PM report of Dilip Kumar, the injuries sustained by the deceased Dilip Kumar are also noted in the PM report and Inqeust report. As mentioned in the PM report Dilip Kumar died due to injury to vital organs and bleeding. As reflect in the site plan, the accident is taken place in the middle of the road,at KGF town and the said road runs Bangar Pete.
10. After completion of investigation, the jurisdictional police have submitted charge sheet against one Laloo Khan S/o Gulab Khan, for the offences punishable under section 279 and 304(A) of IPC. In the charge sheet it has been alleged that, on 29.03.2019 at SCCH4 11 MVC No.5932/2019 8.20 p.m., while the deceased Dilip Kumar was driving his auto rickshaw bearing Reg.No.KA08AE3462 from Robertson Pet Oorgaum. The accused being the driver of the K.K.Travels bearing Reg.No.KA01AB4617 drove the same in a rash and negligent manner at high speed and dashed against the autorickshaw wherein the deceased Dilip Kumar was proceeding
11. As against the evidence of petitioner Lalookhan who is the driver of the alleged offending bus is examined as RW.1, he has deposed that, on 29.03.2019 he was driving the bus bearing Reg.No.KA01 AB4617, while he was coming at KGF town, the auto rickshaw bearing Reg.No.KA08AE3462 came from the opposite side, in order to avoid pot whole of the road, auto driver came to the extreme right side and dashed against the bus.
SCCH4 12 MVC No.5932/2019
12. One Shobha.A who is working as Legal Officer, TP Claims, in the office of respondent No.2, Insurance Company is examined as RW.2. According to this witness the police have filed charge sheet wrongly against the driver of the insure bus. But this witness is not an eye witness of the accident. The accident is not in dispute, according to RW.1 and 2 the accident was happened, due to negligence of the deceased himself who took his autorickahaw towards extreme right side of the road and dashed against the bus driven by the RW.1.
13. During the course of argument the learned counsel appearing for the respondent No.2 has argued that, the documents produced by the petitioners themselves shows that, the accident was happened due to head on collision of both the vehicles, as could be found in site plan the driver of the auto rickshaw took his vehicle towards his right side but he should not have go SCCH4 13 MVC No.5932/2019 to that, side and there was sufficient space to move the auto rickshaw on the left side of the road.
14. In support of his argument, the learned counsel for the respondent No.2 has relied on decision reported in 2008 ACJ 1165 in the Supreme Court of India at New Delhi in between T.O.Anthony V/s Karvarnam and others of India wherein held as follows;
"It is not in dispute that the Mahazar Ex. P2 showed that the accident spot was at a distance of 2.26 meters from the Southern edge of the tared road and 4.79 meters from the Northern edge of the tarred road. If the appellant was proceeding from Palakkad to Trichur (from East to West) and the accident occurred at a distance of 2.2 meters from the southern edge of the road and 4.79 meters from the Northern edge of the road, the inference is that the appellant was on the right side of the road and SCCH4 14 MVC No.5932/2019 the private bus came partly to the wrong side of the road. But the fact that there was a headon collision could not be ignored. The evidence shows that the appellant was not diligent, as he neither slowed down the bus nor swerved to his left, on seeing the oncoming bus. On the facts and circumstances we are of the view that the appellant was also partly responsible for the accident and we fix the responsibility at 25% on the appellant and 75% on the first respondent."
15. In another decision reported in 2016 ACJ 2088 in the High Court of Karnataka at Bengaluru in between Karnataka State Road Transport Corporation V/s Dr.Lavanya.R and others wherein held as follows;
" If the Tribunal had noticed the above material facts available on record, it would not have come to the conclusion that the driver of the bus and the driver of the car/deceased had contributed for occurrence of the SCCH4 15 MVC No.5932/2019 accident equally at the rate of 50% each. The fact that the driver of the bus in spite of noticing the car from the opposite direction could not avoid the accident, as he was driving the bus at high speed and dashed against the car and thereafter the roadside huge jungle tree which was uprooted, would go to show that the negligence contributed by the driver of the bus is heavy and more comparing to that of the driver of the car/deceased which would be in our view is 70% and 30% respectively. Thus, we hold that the accident has occurred due to contributory negligence of the driver of the bus and the driver of the car - deceased, at the rate of 70% and 30% respectively."
As could be found in spot mahazar as well as site plane the accident was occurred in the middle of the road, as mentioned in the site plan the RW.1 driven his bus on the left side of the road. But there is no any SCCH4 16 MVC No.5932/2019 explanation as to why the Auto rickshaw went to the middle of the road This fact would go to show that the negligence contributed by the driver of the bus is heavy and more comparing to that of the driver of the Auto . Because there was also sufficient space to move the bus on its left side. Hence by applying the citation referrerd above I am of the considered view is that there is 70% negligence on the part of the driver of the bus and 30% negligence on the part of the Auto Riksha driver and to such an extent the petitioners cannot claim the compensation.
16. If the material evidence available on record taken into consideration there are sufficient materials to prove that, Dilip Kumar.J met with accident on 29.03.2019 at about 8.20 p.m., while he was proceeding on auto rickshaw bearing Reg.No.KA03AE3462 on BangarpetKGF Main Road, the said accident is caused SCCH4 17 MVC No.5932/2019 by the driver of the bus car bearing Reg.No.KAAB4617 which belonging to respondent No.1. Accordingly I answer issue No.1 partly in the affirmative.
ISSUE NO.2
17. As held herein above, the petitioners have proved that Dilip Kumar.J died on 29.03.2019 due to the injuries sustained in RTA, which is caused by driver of the vehicle which belongs to respondent No.1.
18. As contended in the petition the petitioner No.1 is the wife, petitioner No.2 and 3 are the children of the deceased Dilip Kumar.J. The petitioners to prove their relationship, with the deceased Dilip Kumar.J, have produced notarized copies Aadhar cards of deceased and petitioner No.1 to 3, which are marked under Ex.P.9 to
12. Ex.P.14 is the death certificate and Ex.P.15 notarized copy of the family tree. The originals of all these documents were produced during the course of evidence SCCH4 18 MVC No.5932/2019 and the same are returned to the petitioners. As per these documents the petitioner No.1 is the wife, petitioner No.2 and 3 are the children of the deceased Dilip Kumar.J. The respondents did not adduce any rebuttal evidence to disprove the relationship of petitioners with the deceased. In the absence of contradictory evidence the evidence of the petitioner is to be accepted and it is considered that, petitioners being the wife and children's of the deceased, are the dependents of deceased and they are entitled for compensation. Accordingly, I answer issue No.2 In the affirmative.
ISSUE No.3:
19. Now the quantum of compensation is to be decided. As per Ex.P.9 Aadhar card, the date of birth of deceased is 04.06.1985. The accident took place in the year2019, If it is considered, as on the date of the accident the age of the petitioner was 34 years.
SCCH4 19 MVC No.5932/2019
20. As stated in the petition deceased was owner cum driver Auto rickshaw and he was earning Rs.30,000/per month. The petitioners have produced driving license of the deceased which are marked under Ex.P.13. There is no evidence to show that Auto Riksaw driven by the deceased was registered in his name or not.
In the absence of evidence it cannot be considered that, the deceased was earning Rs.30,000/ per month.
In the decision reported in 2021 ACJ 1592 in the case Yashodha.H and others V/s Sharath Acharya and another the Hon'ble High Court of Karnataka was pleased to award the compensation by taking notional income as fixed by the High Court Legal Service committee. In view, of this decision it is to be considered that, the notional income of the deceased was Rs.14,000/ in the year2019, then the annual income comes to Rs 1,68,000/. As per Sarala varma case the SCCH4 20 MVC No.5932/2019 proper multiplier applicable to the age of deceased is 16. So, the future loss of income is Rs.26,88,000/. Since the deceased left his wife and son it is considered that, there are two dependents of deceased, hence 1/3rd is to be deducted towards his personal expenses, then the total loss of dependency would be Rs.17,92,000/ (Rs.14,000/ X 12 X 16= Rs.26,88,000/ minus 1/3rd = Rs.8,96,000/).
21. In Civil Special leave petition (Civil No.25590/2014 dated 31.10.2016 (National Insurance Company Ltd., Vs. Pranay Sethi & others), the Hon'ble Supreme Court has held that "While determining the income, in case the deceased was self employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 SCCH4 21 MVC No.5932/2019 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component."
22. In another reported decision in Civil Appeal Nos.1920 of 2021 in between Kirti and Another etc., V/s Oriental Insurance Company Ltd., as follows;
"When it comes to the second category of cases, relating to notional income for nonearning victims, it is my opinion that the above principle applies with equal vigor, particularly with respect to homemakers. Once notional income is determined, the effects of inflation would equally apply. Further, no one would ever say that the improvements in skills that come with experience do not take place in the domain of work within the household. It is worth nothing that, although not extensively discussed, this Court has been granting SCCH4 22 MVC No.5932/2019 future prospects even in cases pertaining to notional income, as has been highlighted by my learned brother, Surya Kant,J., in his opinion (Hem Raj V. Oriental Insurance Company Limited, (2018) 15 SCC 654:
Sunita Tokas V. New India Insurance Company Ltd., (2019) 20 SCC 688)".
23. As per the above decision, 40% of notional income should be added to total loss of dependency, to the age of deceased, which will be Rs.7,16,800/.
24. The petitioner No.1 is the wife of deceased. Hence, I inclined to award a sum of Rs.40,000/ towards loss of consortium to the 1st petitioner, Rs.25,000/ towards loss of love and affection. Further, I inclined to award compensation of Rs.15,000/ towards funeral expenses and Rs.5,000/ towards transportation of dead body.
SCCH4 23 MVC No.5932/2019
25. The petitioners are entitled for compensation under the following heads:
1. Loss of dependency Rs. 17,92,000/
2. Loss of future prospects Rs. 7,16,800/
3. Loss of consortium Rs. 40,000/
4. Loss of love and affection Rs. 25,000/
5. Funeral expenses Rs. 15,000/
6. Transport of dead body Rs. 5,000/ Total Rs. 25,93,800/
26. As it is held that there is 30% contributory negligence on the part of the deceased, to such extent the petitioners are not entitled for compensation. Hence, the petitioners are entitled Rs.18,15,660/.
27. In this case, the respondent No.1 and 2 are the owner and insurer of the offending vehicle. The respondent No.2 in its objection statement admitted the issuance of insurance policy to the offending Bus bearing Regn.KA01ABA4617. Hence, the respondent No.1 and SCCH4 24 MVC No.5932/2019 2 are jointly and severally liable to pay the compensation to the petitioner and the respondent No.2 insurance company shall indemnify the compensation behalf of the respondent No.1.
28. This court, in several cases was awarded the compensation along with the interest at the rate of 12% p.a, by relying th earlier judgment of the Hon'ble supreme court. But in the recent judgment, in civil appeal No.6902/2021, in the case of Kurvan Ansari @ Kurvan V/s Shyam Kishore Murmu, the Hon'ble supreme court was pleased to award interest at the rate of 6% p.a., Accordingly, I answer this issue partly in the affirmative.
ISSUE NO.4:
29. For the foregoing reasons, I proceed to pass the following:
SCCH4 25 MVC No.5932/2019
ORDER
The petition filed by the petitioner U/s 166 of the Motor Vehicles Act is hereby partly allowed with cost.
The petitioners are entitled for total compensation amount of Rs.18,15,660/ with interest at the rate of 6% p.a., from the date of petition till the realization from respondents.
The petitioners No.1 to 3 are entitled for the compensation at the ratio of 50:25:25.
The respondent No.2 is directed to deposit the compensation amount within 30 days from the date of this order.
Out of total compensation awarded to the Petitioner No.1, 50% of the same to be released in favour of petitioner No.1 through Epayment on her proper identification and remaining 50% to be kept in Fixed Deposit in any Nationalized or Scheduled Bank, for a period of three years, in her name.
The entire amount awarded to petitioner No.2 and 3 shall be kept in Fixed Deposit in their names in any Scheduled Bank, till they attain the age of majority.
SCCH4 26 MVC No.5932/2019 Advocate fee is fixed at 1,500/.
Draw up award accordingly.
(Dictated to the Stenographer, transcribed by her, the transcript corrected and then pronounced by me in the open court on this the 18th day of December, 2021) (RAJU.M.) XVIII ADDL.JUDGE Court of Small Causes & MACT., Bengaluru.
ANNEXURE List of witnesses examined for petitioners:
PW.1 Sri.Beulah List of documents marked on behalf of the petitioners:
Ex.P1 FIR Ex.P2 Complaint Ex.P3 Mahazar Ex.P4 Inquest report Ex.P5 PM report Ex.P6 IMV report Ex.P7 Sketch Ex.P8 Charge sheet
Ex.P9 to 12 Notarized copy of the 4 Aadhar cards Ex.P13 Notarized copy of the DL Ex.P14 Notarized copy of the death certificate Ex.P15 Notarized copy of the family tree List of witnesses examined for Respondents:
RW.1 Sri.Lalu Khan
SCCH4 27 MVC No.5932/2019
RW.2 Sri.Shobha.A
List of documents marked on behalf of the
Respondents:
NIL
XVIII ADDL.JUDGE
Court of Small Causes & MACT.,
Bengaluru.