Bangalore District Court
Smt. Rehana @ Rehanabasheer vs Sri. Venkatesh. H.V on 18 August, 2015
IN THE COURT OF MOTOR ACCIDENT CLAIMS TRIBUNAL,
XX ADDL.SMALL CAUSES JUDGE, BANGALORE, (SCCH-22)
Dated this the 18th day of August, 2015
Present: Sri.N.SUBRAMANYA, M.Com., LLB.,
Member, MACT & XX ASCJ, Bangalore.
M.V.C. No.1033/2013
Petitioners : 1. Smt. Rehana @ Rehanabasheer,
W/o. late Salahuddin Khan,
Aged about 32 years,
2. Nadiya Afsheen,
D/o. late Salahuddin Khan,
Aged about 13 years,
3. Mohiyuddin Khan,
S/o. Late Sattar Khan,
Aged about 68 years,
4. Smt. Musthari Begu,
W/o. Mohiyuddin Khan,
Aged about 62 years,
2nd petitioner is minor
Rept. By 1st petitioner as Natural
Guardian.
All are Residing at :
No.2/1, 4th Main, 18th Cross,
Opp. to MICO, Audugodi Post,
Chinnayanapalya,
Bangalore -560030.
3rd Petitioner present residing @
The above said address:
Previous address of 3rd petitioner,
2 MVC No.1033/2013
SCCH-22
23/13, Munireddy Block, 3rd Cross,
Maruthi Nagar,
Madivala,
Bangalore.
(By Sri. G.T. Kenche Gowda., Adv)
-Versus-
Respondents: 1. Sri. Venkatesh. H.V,
S/o. Sri. Venkategowda,
Hodihosahalli, Village,
Honganur Post,
Channapatna Taluk,
Ramanagara District.
(R.C. Owner of mini lorry bearing
No.KA-13-4489)
(By Yesvee Associates., Adv)
2. Sri. Radhakrishna,
S/o. Madu,
No.2029, B.M.Road,
Ramanagara Town-571511
(Insured of the Mini lorry
Bearing reg. No.KA-13-4489)
(Exparte)
3. United India Insurance Co.Ltd.,
Regional office,
Nrupatunga Road,
Bangalore-560002
(Policy
No.072383/31/11/02/00007961
Valid from 13.02.2012 to 12.03.2013
(Policy belongs to Ramanagara Branch)
(By Sri. Ganapathi S.Shastri., Adv)
3 MVC No.1033/2013
SCCH-22
JUDGMENT
Petitioners have filed this petition under section 166 of the Motor Vehicles Act, 1989 for the award of compensation of Rs.50,00,000/- for the death of Salhuddin Khan, (in short as deceased) in a Motor Vehicle's Accident.
2. Brief facts of the petitioners case as are under :
That on 24.11.2012 at about 7.30 p.m. When the petitioner was riding the Motor cycle bearing reg. No.KA-05- HH-78, along with shek Salar Masood, as pillion rider in a careful manner following all traffic rules on the left side of the road. When they reached in front of police training school, Channapatna, on Bangalore - Mysore main road, at that time a lorry bearing reg. No.KA-13-4489, driven by its driver in a rash and negligent manner so as to endanger human life take a U-turn without giving any signal and dashed against the Motor cycle bearing reg. No.KA-05- H-78. As a result of the accident rider and the pillion rider fell down and sustained grievous. Immediately after the accident he was shifted to Nimhan's Hospital, Bangalore fore treatment and saluddin Khan succumbed to injuries at Nimhan's hospital on the same day. Further body was shifted to Govt hospital, Channapatna 4 MVC No.1033/2013 SCCH-22 for postmortem, after conducting postmortem body was handed over to the petitioners. Prior to the accident, he was hale and healthy and was working as a Operator at MICO Ltd., and was drawing a salary of Rs.11,163/- p.m. Petitioners have contended that due to the sudden demise of the deceased they suffering from loss of income and love and affection. They have contended that they have spent a sum of Rs.30,000/- towards transportation and funeral expenses.
3. They have contended that the accident had occurred due to rash and negligent driving of the Mini Lorry bearing Reg. No.KA-13-4489 by its rider. 1st Respondent is the registered owner of the above said offending vehicle and 2nd and 3rd respondents are the Insured and insurer of the Mini Lorry bearing Reg. No.KA-13- 4489. Hence, they are liable to pay compensation and the petitioners have prayed for award of compensation of Rs.50,00,000/- from the respondents with interest from the date of the petition till realisation.
4. In pursuance of the notice, Respondents No.1 and 3 have appeared through their respective counsels and filed their separate written statements. In spite of service of notice through 5 MVC No.1033/2013 SCCH-22 RPAD, 2nd Respondents has remained absent. Hence, he has been placed exparte.
5. 1st Respondent stating that the claim petition is not maintainable either in law or on facts and the same is liable to be dismissed in limine. He has admits that the Mini Lorry bearing reg. No.KA-13-4489 and policy No.072383/31/11/02/00007961 covering from the date 13.3.2012 to 12.3.2013, same was valid as on the date of accident. The allegations made in the claim petition are false. Hence for all these reasons prayed for dismissal of claim petition.
6. 3rd Respondent stating that the claim petition is not maintainable either in law or on facts and the same is liable to be dismissed in limine. It is contended that the burden is on the petitioners to prove that the mini Lorry bearing reg. No.KA-13-4489 was covered by insurance under policy issued by this respondent at the time of alleged accident. Any insurance policy I subject to terms and conditions. It is further contended that there was any rashness and negligence on the part of the driver of the said lorry. It is false to say that the said lorry, without giving any single, dashed against the Motor cycle bearing reg. No.KA-05-HH-79. It is 6 MVC No.1033/2013 SCCH-22 also false to say that rider and pillion rider of the said motor cycle fell down and sustained grievous injuries. It is also false to say that rider was shifted to hospital and that he succumbed to injures. The alleged accident was not occurred due to fault of the driver of the said lorry. It is contended that the driver of the said lorry was not holding valid licence to drive the said vehicle and the said lorry had no fitness certificate and permit at the time of alleged accident. The rider of the said motor cycle was also not having valid licence at the time of alleged accident. It is further contended that the petitioners two vehicles were involved in the alleged accident. Hence, there was contributory negligence. But the insurer and owner of the vehicle bearing reg. No.KA-05-HH-79 are not made parties. Hence, the above petition suffers from non joinder of necessary parties. The compensation claimed is highly excessive and exorbitant and allegations made in the claim petition are false. Hence for all these reasons prayed for dismissal of claim petition.
7. On the basis of the above pleadings, following issues have been framed:
7 MVC No.1033/2013
SCCH-22 ISSUES
1. Whether the petitioners prove that the accident that occurred on 24.11.2012 at about 7.30 p.m. when Mr. Salahuddin Khan was riding the motor cycle bearing reg. No.KA-05-HH-79, in front of KSPTC U turn on Bangalore - Mysore Road, Channapatna, he met with an accident and later succumbed to the injuries due to the actionable negligence on the part of driver of Lorry bearing reg. No.KA-13-
4489?
2. Whether respondent prove that they are not liable to pay compensation?
3. Whether the petitioners are entitled for compensation? If so, for what amount and from whom?
4. What order or award?
8. In order to prove the above Issues, petitioners has got examined 1st petitioner as PW1 on their behalf and has got marked 26 documents as Exs.P.1 to P.26 and closed their side. In spite of opportunity granted Respondents have got examined any witness and evidence on his behalf is taken as nil and side closed.
9. Heard the arguments.
10. My answer the above issues are as under:
Issue No.1: In the Affirmative 8 MVC No.1033/2013 SCCH-22 Issue No.2: In the Negative Issue No.3: Yes, to the extent as shown in the final order, from Respondent Nos.1 and 2
Issue No.4: As per final order, for the following:
REASONS
11. Issue No.1 The 1st Petitioner, wife of the deceased examined as PW1. She has filed affidavit evidence as her examination in chief narrating the accident as mentioned in the above pleadings.
12. In order to substantiate the said facts, petitioner has produced true copies of FIR, complaint, Inquest report, Mahazar, Vehicle seizer mahazar, Rough sketch, Charge sheet, MVA report and PM report pertaining to Crime No.211/12 of Kanakapura town Police Station, marked as Exs.P.1 to P9 respectively. On going through the documents placed on record and the Charge sheet- Ex.P.7, it reveals that on the complaint of Lingesh C.M. the police have investigated the matter and have found that the accident in question to have occurred due to the rash and negligent driving of Force Traveler Ambulance vehicle bearing Reg. No. KA-42-G-270 by its driver. Hence, it could be held that the accident in question has 9 MVC No.1033/2013 SCCH-22 occurred solely due to the rash and negligent driving of the Force Traveler Ambulance vehicle bearing Reg. No. KA-42-G-270 by its driver and the deceased succumbed to the injuries sustained by him in the accident. Hence, I answer Issue No.1 in the Affirmative.
13. Issue No.2 & 3:
The petitioners have claimed the compensation on account of the death of Salhuddin Khan in the said accident. It is the allegation in the claim petition as well as in the evidence of PW.1 that, the petitioner No.1 is the wife, petitioner no.2 is the daughter, petitioner no.3 and 4 are the parents of deceased Salhuddin Khan.
14. LOSS OF DEPENDENCY:-
There is no dispute about the relationship between the petitioners and the deceased. Petitioners have also produced documents such as passport at Ex.P.9 to P.11 which shows the of relationship of deceased and petitioners. The age of the deceased is stated as 38 years, but as per Ex.P.9 - passport of the deceased, the date of birth is on 21.10.1973, as on the date of accident he was aged "39" years.
Regarding the income, petitioners have not at all produced any 10 MVC No.1033/2013 SCCH-22 documents only they have produced Ex.P.21 to P.24 which is the documents of firm "ARWA DROPS PRIVATE LIMITED" said to be started by the deceased. According to these documents the firm was came to be existence in the year 2011. In Ex.P.23 there is description of the particulars of partners and number of share holders, the deceased along with another person were shown as subscribers to the said company and they were holding shares of Rs.5,000/- each at Rs.10/- which shows that deceased was holding shares worth Rs.50,000/- and he was not the proprietor or partners of the said company, but, only he was a subscriber. Apart from this document there is no single document to show the exact income from the said company. Hence, these documents are no way helpful to the petitioners to prove income of the deceased. though the petitioners have produced documents at Ex.P.19 - Salary certificate from the MICO which pertains to the year 2004 and deceased was getting a salary of Rs.11,163/-. Thereafter, petitioners have produced Ex.P.22 in which he was getting 3,900 dollars from an Australian company that is also belongs to the year 2006. These documents cannot be taken into consideration and they are very much prior to the date of accident. Hence, absolutely no proof of income is given by the petitioners. Anyhow, looking to 11 MVC No.1033/2013 SCCH-22 the qualification of the deceased in the technical field as per Ex.P.15 to P.17 wherein he has undergone national apprenticeship, his income will be taken as Rs.7,500/- p.m. Since, deceased was married 1/3rd of his income has to be deducted which comes to Rs.5,000/- p.m. As per citation reported in (2009) 6 SCC 121, in the case between Sarala Verma -Versus- Delhi Transport Corporation, the multiplier applicable for the age of group of 36 to 40 years is "15". Hence, the loss of dependency would be Rs.5,000 x 12 x 15 = Rs.9,00,000/-. Hence, the said amount of Rs.9,00,000/- is awarded under the head 'loss of dependency'.
15. FUNERAL EXPENSES:-
It is stated in the petition as well as in the evidence of PW 1 that, they have spent a sum of Rs.30,000/- towards transportation of dead body and funeral and obsequies ceremony. No documents are forthcoming for having spent money towards transportation of dead body, medical and funeral expenses. Hence, in the absence of proof, a sum of Rs.25,000/- is awarded towards the funeral expenses of the deceased.12 MVC No.1033/2013
SCCH-22
16. LOSS OF LOVE AND AFFECTION:;-
The petitioner No.2 is the daughter and petitioners No.3 and 4 are the parents of the deceased. Hence, they are entitled for a sum of Rs.10,000/- each. In all Rs.30,000/- is awarded under the head "Loss of love and affection".
17. LOSS OF CONSORTIUM:-
A sum of Rs.10,000/- is awarded towards loss of consortium to petitioner no.1 who is the wife of the petitioner.
18. LOSS OF ESTATE:-
Petitioners are entitled for a sum of Rs.25,000/- under this head.
19. Thus, the petitioners are entitled for compensation under the following heads as follows:
For Loss of Dependency Rs. 9,00,000-00
For Loss of consortium Rs. 10,000-00
For Loss of love and affection Rs. 30,000-00
For Funeral and obsequies Rs. 25,000-00
ceremony
For Loss of Estate Rs. 25,000-00
TOTAL Rs. 9, 90,000-00
20. Thus, in all, the petitioners are entitled for total compensation in a sum of Rs.9,90,000/-. The above said 13 MVC No.1033/2013 SCCH-22 compensation awarded is just, fair and adequate under the facts and circumstances of the case.
21. With regard to Liability: As discussed by me on Issue No.1, the accident in question has occurred due to the rash and negligent driving of Lorry bearing reg. No. KA-13-4489 by its driver. The 1st and 2nd Respondents are the owner of the said vehicle, as such, he is vicariously liable for the acts of the driver. 1st and 2nd Respondents have insured their vehicle with the 3rd Respondent and the Insurance policy is in force as on the date of accident. Hence, 3rd Respondent is contractually liable to indemnify the insured. Hence, both Respondents No.1 to 3 are jointly and severally held liable to pay compensation to the petitioners with interest at 8% p.a. from the date of the petition till realisation. Hence I answer Issue No.2 in the Negative and Issue No.3 in partly in the Affirmative.
22. Issue No.4: In the light of my findings on Issue Nos.1, 2 and 3, I proceed to pass the following:
14 MVC No.1033/2013
SCCH-22 ORDER The claim petition filed by the petitioners under Sec.166 of Motor Vehicle's Act, 1989 is hereby allowed in part with cost.
The petitioners are entitled for total compensation of Rs.9,90,000/- (Rupees Nine lakhs Ninety thousand only) with interest at 8% p.a. from the date of petition till realisation.
The 1st to 3rd Respondents are jointly and severally held liable to pay the above said compensation to the petitioners and the primary responsibility is fixed on the 3rd Respondent to pay the compensation and directed to deposit the same within 30 days from the date of the award. Petitioner No.1 is the wife who is entitled for the higher share in the compensation amount. Hence, petitioner no.1 is entitled for 40% in the total compensation amount. Petitioner nos. 2 to 4 are the daughter and parents of the deceased and are entitled for 20% each in the total compensation amount.
On deposit of compensation amount, 50% of the compensation amount with accrued interest awarded to the Petitioner No.1 shall be kept in Fixed Deposit in her name, for a period of three years in any of the Nationalised or scheduled Banks of her choice and the entire compensation 15 MVC No.1033/2013 SCCH-22 amount with accrued interest awarded to the minor Petitioner No.2, shall be kept in Fixed Deposit in any nationalised or schedule bank until she attains majority, with liberty to the guardian of the petitioner No.2, to withdraw periodical interest for her welfare and the entire amount awarded to petitioner nos.3 and 4 are ordered to be paid with accrued interest as they are aged and it is a meager amount.
Advocate's fee is fixed at Rs.1000/-.
Draw award accordingly.
(Dictated to the Stenographer through dictation, corrected, revised and then signed and pronounced by me in the Open Court dated this the 18th day of August 2015).
(N.SUBRAMANYA) Member, MACT & XX ASCJ Bangalore.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PETITIONERS:
PW1 Rehana @ Rehanabasheer.
LIST OF DOCUMENTS MARKED ON BEHALF OF PETITIONERS:
Ex.P1 Copy of FIR
Ex.P2 Copy of Complaint
Ex.P3 Copy of Charge sheet
16 MVC No.1033/2013
SCCH-22
Ex.P4 Copy of Rough Sketch
Ex.P5 Copy of PM report
Ex.P6 Copy of MVA report
Ex.P7 Copy of Spot Mahazar
Ex.P8 Copy of Inquest report
Ex.P9 Notarised copy of Passport deceased
Ex.P10 Notarised copy of Passport Petitioner No.1
Ex.P11 Notarised copy of Passport Petitioner No.2
Ex.P12 Notarised copy of Election ID card Petitioner No.3
Ex.P13 Notarised copy of Election ID card Petitioner No.4
Ex.P14 Notarised copy of SSLC marks card deceased
Ex.P15 Notarised copy of National apprentice certificate
Ex.P16 Notarised copy of National apprentice Training scheme
Ex.P17 Notarised copy of Appointment letter issued by the MICO
Bosch group
Ex.P18 Notarised copy of Employment letter
Ex.P19 Notarised copy of Service certificate
Ex.P20 Notarised copy of Australia recognised trade certificate
Ex.P21 Notarised copy of Re-Employment letter
Ex.P22 Notarised copy of Kellogg's Account Manager
Ex.P23 Notarised copy of Articles of Association of ARWA
drops PVT Ltd.
Ex.P24 Notarised copy of Tax registration certificate
Ex.P25 Notarised copy of Trade licence certificate
Ex.P26 Notarised copy of DL
LIST OF WITNESSES EXAMINED ON BEHALF OF RESPONDENTS:
-None-
LIST OF DOCUMENTS MARKED ON BEHALF OF RESPONDENTS:
-Nil-
Member, MACT & XX ASCJ, Bangalore.