Bangalore District Court
Smt.Rathnamma vs ) Ramachandraiah B.C on 6 March, 2017
BEFORE THE MEMBER PRL.MOTOR ACCIDENT
CLAIMS TRIBUNAL AT BANGALORE
(SCCH - 1)
DATED THIS THE 6th DAY OF MARCH'2017
PRESENT : SRI H.P.SANDESH, B.A.L., LL.B,
MEMBER, PRL. M.A.C.T.,
MVC No.5523/2015
Petitioner: Smt.Rathnamma,
W/o.Late Nandish,
Aged 33 years,
R/at No.E12/20,
Sollapuradamma Extn.,
Srigandada Kaval,
Bangalore North,
Bangalore 560 091.
(By Sri Venkateshaiah, Advocate)
Vs.
Respondents: 1) Ramachandraiah B.C.,
S/o.Chikkavenkataiah,
Aged Major,
No.91, Benaka Layout,
Kempalingahallai,
Nelamangala Taluk,
Bangalore Rural District.
(Owner of the Lorry
bearing
Reg.No.KA.52/9119)
2) The Manager,
Reliance General Insurance
Co., Ltd.,
No.26, Centenary Building,
M.G.Road, Bangalore - 01.
(Policy No/Year
1415552334001656
Valid from 07.06.2015 to
06.06.2016)
(Respondent No1 by Sri Ravi P.,
Advocate
Respondent No.2 - Sri
S.Maheshwara, Advocate
JUDGMENT
The petitioner has filed this petition under Section 163-A of the Motor Vehicles Act, 1989 claiming compensation of Rs.10 lakhs with regard to the death of her son Chandrashekar N., in the road traffic accident that occurred on 29.06.2015 at about 12.30 PM., on NH 48, Bangalore-Kunigal Highway, near Karekalu Cross, Kasaba Hobli, Nelamangala Taluk, Bangalore Rural District.
2. Brief facts of the case are that:-
It is contended in the petition that on 29.06.2015, at about 12.30 pm., the deceased Chandrashekar N., was traveling was a pillion rider on motorcycle bearing registration No.KA.41/Y.1353 and the said motorcycle was driven by one Manoj carefully and cautiously and while proceeding so, when the motorcycle came near Karekalu Cross on N 48 Bangalore-
Kunigal Highway, at the same time, lorry bearing registration No.KA.52/9119 driven by its driver in rash and negligent manner so as to endanger human life and safety of others came there and dashed against their motorcycle and in the accident, the pillion rider, who having suffering grievous injuries died at the spot. Immediately after the accident, the deceased Chandrashekar N., was shifted to Government Hospital, Nelamangala wherein post mortem was conducted and thereafter, the body was handed over to the petitioner, who performed the last rites by incurring Rs.50,000/-.
3. The accident took place due to the rash and negligent driving of the lorry No.KA.52/9119 by its driver and therefore, the jurisdictional Police have registered a case against the driver of the said lorry.
4. Deceased Chandrashekar N., was hale and healthy and was aged 13 years and doing part work, was prosecuting studies and by doing part time work, earning Rs.3,300/- per month and contributing the entire income for the maintenance of the family and he was the sole bread earner in the family. Hence, she claims compensation of Rs.10 lakhs from the respondents.
5. In pursuance of this petition, both the respondents appeared before the Tribunal and filed their objection statement separately.
6. First respondent, in its statement of objections, contended that the petition is not maintainable either in law or on facts.
7. The averment that the petitioner is the mother of the deceased Chandrashekar may be true. It is also true that the said Chandrashekar has died in the road traffic accident that occurred on 29.06.2015. However, it is not true that the said Chandrashekar has died due to the negligence of the driver of the respondent No.1's lorry.
8. The averment that on 29.06.2015, at about 12.30 pm., the deceased Chandrashekar N., was traveling was a pillion rider on motorcycle bearing registration No.KA.41/Y.1353 and the said motorcycle was driven by one Manoj carefully and cautiously and while proceeding so, when the motorcycle came near Karekalu Cross on N 48 Bangalore Kunigal Highway, at the same time, lorry bearing registration No.KA.52/9119 driven by its driver in rash and negligent manner so as to endanger human life and safety of others, came there and dashed against their motorcycle and the pillion rider, who having suffering grievous injuries in the accident, died at the spot, are denied as false.
9. The further averment that immediately after the accident, the deceased Chandrashekar N., was shifted to Government Hospital, Nelamangala wherein post mortem was conducted and thereafter, the body was handed over to the petitioner, who performed the last rites by incurring Rs.50,000/- is denied as false. The respondent No.1 has also denied the age, avocation and income of the deceased, apart from denying the negligence attributed to the driver of the lorry No.KA.52/9119.
10. Without prejudice to the above contentions, the respondent No.1 has produced the copy of the registration certificate, insurance certificate and copy of the permit of the aforesaid vehicle to show that the aforesaid vehicle was possessing valid documents at the time of the accident. Hence, prayed the Court to dismiss the petition against him.
11. The second respondent, in its statement of objections admitted the issuance of insurance policy to the lorry No.KA.52/5119, however, it is contended that the liability to indemnify the 1st respondent is subject to the terms and conditions of the policy, provisions of the MV Act, valid and effective driving licence held by the driver of the lorry, valid RC and FC, Permit and also subject to confirmation of Section 64VB of the Insurance Act. The respondent No.2 seeks protection under Section 147 and 149(2) of the MV Act.
12. The respondent No.2 has taken the general defence, in as much as, as provided under Section 134(c) of the MV Act, the respondent No.1 has not furnished the particulars of policy, date, time and place of accident, particulars of injured and the name of the driver and particulars and his driving licence and thereby violated the provisions of the said Act.
13. It is further contended that as per Section 158(6) of the MV Act, it is the mandatory duty of the concerned Police Station to forward all the relevant documents to the concerned insurer within 30 days, but the Police having failed to do so, there is violation of the said Act.
14. The averment that on 29.06.2015, at about 12.30 pm., the deceased Chandrashekar N., was traveling was a pillion rider on motorcycle bearing registration No.KA.41/Y.1353 and the said motorcycle was driven by one Manoj carefully and cautiously and while proceeding so, when the motorcycle came near Karekalu Cross on NH-48 Bangalore Kunigal Highway, at the same time, lorry bearing registration No.KA.52/9119 driven by its driver in rash and negligent manner so as to endanger human life and safety of others came there and dashed against their motorcycle and the pillion rider, who having suffering grievous injuries died at the spot, is not admitted by the respondent No.2.
15. The petition is liable to be dismissed for non joinder of necessary parties. Entire police records would clearly show that the rider of the motorcycle No.KA.41/Y.1353 was solely responsible for the alleged accident. The driver of the motorcycle No.KA.41/Y.1353 driven the same in rash and negligent manner and dashed against the lorry No.KA.52/9119 from behind. In fact, the driver of the lorry No.KA.52/9119 is no way responsible for the accident. The petitioner knowing fully well the said fact intentionally impleaded the respondent No.2 as a party to the present proceedings in order to harass the respondent No.2. Under these circumstances, the petition is liable to be dismissed.
16. The jurisdictional police, after thorough investigation, filed charge sheet against the rider of the motorcycle No.KA.41/Y.1353 stating that the motorcycle was being driven in rash and negligent manner and hence, the respondent No.2 is neither a necessary party nor proper party to the proceedings.
17. Without prejudice to the above contentions, it is contended that the driver of the lorry No.KA.52/9119 was not holding valid and effective driving licence as on the date of the accident and further was not qualified for holding or obtaining such driving licence, nor the lorry was holding valid permit and fitness certificate.
18. The respondent No.2 has also denied the relationship of the petitioner with the deceased, so also denied the age, avocation and income of the deceased and the amount of the compensation claimed is highly exorbitant and without any basis. For all these reasons, the respondent No.2 has prayed for dismissal of the petition.
19. Based on the above pleadings of the parties, the following issues are framed:-
1) Whether the Petitioner proves that the deceased succumbed to injuries in a Motor Vehicle Accident that occurred on 29.06.2015 at about 12.30 pm., on NH 48, Bangalore Kunigal Highway, Near Karekallu Cross, Kasaba Hobli, Nelamangala Taluk, Bangalore Rural District within the jurisdiction of Nelamangala Rural Police Station on account of rash and negligent driving of the Lorry bearing registration No.KA.52/9119 by its driver?
2) Whether the Petitioner is entitled for compensation? If so, how much and from whom?
3) What Order?
20. In order to substantiate her case, on behalf of the petitioner, she got herself examined as PW 1 and through her evidence, Exhibits P.1 to P.12 are marked. On behalf of the respondent No.2, one witness has been examined as RW 1 and the Insurance Copy is got marked as Ex.R.1.
21. This petition is filed under Section 163-A of the Motor Vehicles Act. It appears that the issues have been framed as if the petition is filed under Section 166 of the M.V.Act. Therefore, the issues have been recasted as under:-
1) Whether the petitioner proves that the deceased succumbed to the injuries sustained by him in the motor vehicles accident that occurred on 29.06.2015 at about 12.30 pm., on NH 48, Bangalore-
Kunigal Highway, near Karekallu Cross, Kasaba Hobli, Nelamangala Taluk, Bangalore Rural District, involving lorry No.KA.52/9119?
2) Whether the Petitioner is entitled for compensation? If so, how much and from whom?
3) What Order?
22. I have heard the arguments of the counsel for the petitioner and the respondents.
23. The Counsel for the petitioner has relied upon the unreported judgment of the Supreme Court in Civil Appeal No.9694/2013 (@ Special Leave Petition (Civil) No.7586 of 2012) disposed of 29.10.2013.
24. The Counsel for the respondent No.2 has relied upon the following judgments:
1) MFA 8414 & 8415/2010, Decided on 24.08.2011
2) 2012 AIR SCW 10
25. I have gone through the principles laid down in the above judgments.
26. Having heard the arguments, based on the pleadings and the evidence available on record, I record my findings on the above issues as under:-
1) In the affirmative,
2) Partly in the affirmative,
3) As per final order, REASONS
27. Issue No.1 :- The Counsel for the respondent No.2, during the course of his arguments, vehemently contended that since two vehicles are involved in the accident, owners and insurer of the both the vehicles are necessary parties and in the case on hand, as the petitioner has not impleaded the owner and insurer of the motorcycle, the petitioner is bad for non joinder of necessary parties. In support of his contention, he has relied upon the principles laid down in the following unreported judgment of High Court of Karnataka in MFA No.8414 and 8415/2010 (Bajaj Allianz General Insurance Co., Ltd., Vs B.Basha and others). In the case referred supra, the accident had occurred involving motorcycle and lorry. Petition was filed under Section 163-A arraying only the owner and insurer of the lorry. In the appeal, the High Court observed that "No doubt the claimant is not required to plead and prove the negligence under Section 163-A of the Act, nevertheless, Section 163A(2) of the Act requires that the claimant to claim compensation against the owner of the vehicle or the vehicles or any other person. Such owner of the vehicle or vehicles are required to be impleaded, against whom the award can be passed. In this case, the owner and insurer of the lorry involved in the accident are not parties to the proceedings. Without impleading them, the Tribunal has proceeded to award compensation only against the insurer of the motorcycle ignoring the involvement of the other vehicles. In my opinion, owner of another vehicle involved in the accident is necessary party."
28. The counsel for the respondent No.2 has relied upon another judgment reported in 2012 AIR SCW 10 (National Insurance Company Ltd., Vs Sinitha & Ors), wherein the Supreme Court has held as under:-
"(B) Motor Vehicles Act (59 of 1988), Ss.163-A, 140 -
Compensation - "Fault' liability principle - Claimant claiming compensation under S.163-A - Not essential for him to plead or establish that accident out of which claim arises suffers from "wrongful act" or "neglect" or "default" of offending vehicle - S.163-A is founded on Principle of "fault" liability."
29. Therefore, the counsel for the respondent No.2 contends that even though the petitioner has invoked Section 163-A of the MV Act, it does not mean that he need not prove the fault and since the principles laid down in the above judgment, makes it clear that Section 163-A is founded on the Principle of "fault" liability, responsibility of establishing the rash and negligent act on the part of the driver of the lorry, rests on the petitioner.
30. The Counsel for the petitioner, along with a Memo dated 06.03.2017, filed an unreported judgment of the Apex Court in Civil Appeal No.9694/2013 ( @ Special Leave Petition (Civil) No.7586/2012) (United India Insurance Co., Ltd., Vs. Sunil Kumar and another). In the judgment referred supra, the Apex Court, while discussing the conclusion arrived at in the case relied upon by the Counsel for the respondent No.2 in Sinitha's case supra and also in Oriental Insurance Co., Ltd., Vs. Hansrajbhai Vs Kadala [(2001) 5 SCC 175), in para No.8 and 9, observed thus:
"8. We are, therefore, of the view that liability to make compensation under Section 163-A is on the principle of no fault and, therefore, the question as to who is at fault is immaterial and foreign to an enquiry under Section 163-A. Section 163-A does not make any provision for apportionment of the liability. If the owner of the vehicle or the insurance company is permitted to prove contributory negligence or default or wrongful on the part of the victim or claimant, naturally it would defeat the very object and purpose of Section 163-A of the Act. Legislature never wanted the claimant to plead or establish negligence on the part of the owner or the driver. Once it is established that death or permanent disablement occurred during the course of the user of the vehicle and the vehicle is insured, the insurance company or the owner, as the case may be, shall be liable to pay the compensation, which is a statutory obligation.
9. We, therefore, find ourselves unable to agree with the reasoning of the Two Judge Bench in Sinitha's case (supra). Consequently, the matter is placed before the learned Chief Justice for referring the matter to a larger Bench for a correct interpretation of the scope of Section 163-A of the Motor Vehicles Act, 1988...."
31. Thus, from the observation made in the above paras by the Division Bench of the Supreme Court, there being difference of opinion regarding the interpretation of the Scope of Section 163-A of the MV Act, 1988, the matter was sought to be placed before the Chief Judge for referring the matter to a larger Bench. Therefore, until a clear interpretation is pronounced as to the scope of Section 163-A of the MV Act, 1988, this Court has to go by the prevailing law.
32. As far as the contention of the respondent No.2 that the owner and insurer of the motorcycle No.KA.41/Y.1353 are the necessary parties to the petition, is concerned, though in the unreported judgment relied upon by the counsel for the respondent No.2, the matter was remanded for arraying the owner and insurer of the other vehicle, but it has to be stated here that when the law clearly lays down that the claimant need not be required to plead or establish that the death in respect of which the claimant has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person and when two vehicles were involved in the accident, due to which the deceased lost his life, in such a situation the claim petition under Section 163-A is maintainable, non arraying of the owner and insurer of the motorcycle, is not fatal to the case of the petitioners, since the petitioner can claim compensation from the owner and insurer of the either of the vehicles. This opinion of mine is supported by the principles laid down in the judgment of the Division Bench of the High Court of Karnataka reported in ILR 2008 Karnataka 959 (National Insurance Co., Ltd., vs. Honnappa and Others) "When two motor vehicles were involved in the accident due to which claimant sustained injuries, in such a situation, the claim under Sec.163-A of the Act is permissible, no matter, the driver or the owner of the vehicle involved in the accident, may dispute his negligence in the matter - hence, the Tribunal has not committed any error in entertaining the petition under Sec.163-A of the Act."
33. Thus, as discussed above, as the petitioner has invoked Section 163-A of the Motor Vehicles Act, 1988. Under such circumstances, petitioner need not prove the fact of negligence; it is suffice, if she is able to prove the occurrence of the accident, involving the vehicles, resulting in the death of her son.
34. In this regard, the petitioner examined herself as PW 1, who in her evidence, although she is not an eyewitness to the accident, however reiterated the averments made out in the petition and further deposed that on 29.06.2015, while her son was traveling as pillion rider on motorcycle No.KA.41/Y.1353 driven by one Manoj, at about 12.30 pm., while they were proceeding on NH 48 Bangalore Kunigal Highway and came near Karekal Cross, lorry No.KA.52/9119 came there in rash and negligent manner so as to endanger human life and safety of others dashed against their motorcycle and in the accident, her son died at the spot. Apart from her oral evidence as PW 1, the petitioner has produced police documents such as Ex.P.1, copy of the FIR registered against the rider of the motorcycle No.KA.41/Y.1353 which clearly reveals that the collision between the motorcycle and the lorry and the occurrence of the accident. Ex.P.2 and P.3 are the Post Mortem Report conducted on the body of the deceased Ex.P.2 reveals that the cause of death appears to be due to shock and hemorrhage following head injury causing damage to the vital organ brain as a result of road traffic accident. Ex.P.4 is the Spot Mahazar and Ex.P.5 is the spot sketch. Ex.P.6 is the IMV Report of both the vehicles, which discloses the damage caused to both the vehicles in the accident. Ex.P.12 is the charge sheet filed against the owner of the motorcycle.
35. The respondent No.2 in its statement of objections contended and the same has been reiterated by RW 1, a witness examined for respondent No.2, that as the accident has solely occurred due to the rider of the motorcycle and since the driver of the lorry No.KA.52/9119 is no way responsible for the accident, the respondent No.2 being not a necessary party, the petition as against it, deserves to be dismissed.
36. But as stated supra, since the present petition is filed under Section 163-A of the MV Act, petitioner need not prove the fact of negligence, it is suffice, if she is able to prove the occurrence of the accident, involving the vehicles, resulting in the death of her son. As discussed, by producing Ex.P.1 - FIR, Ex.P.2 - PM Report, Ex.P.3 - Inquest Mahazar, Ex.P.4 - Spot Mahazar, Ex.P.5 - Spot Sketch, Ex.P.6 IMV Report and Ex.P.12
- Charge Sheet, the petitioner has successfully proved the occurrence of accident involving the vehicles in question, on the relevant date, time and place, in which the petitioner's son having suffered injuries, died at the spot. Accordingly, issue No.1 is answered in the affirmative.
37. Issue No.2:- Now, let me consider the quantum of compensation to be awarded to the petitioner, on account of the death of her son Chandrasheakar in the accident.
38. In order to prove the relationship of the petitioner with the deceased, the petitioner has got marked Ex.P.7 - Identity Card of the deceased issued by the School wherein the deceased was studying. The name of the father of the deceased is shown as Nandeesh. The petitioner has also got marked Ex.P.8 - her Election Identity Card, in which her husband's name is shown as Nandish. Further, the petitioner has also got marked Ex.P.10 - Copy of Ration Card, wherein the deceased is shown as the son of the petitioner. The inter se relationship between the deceased and the petitioner is not disputed by either of the respondents. Hence, for the purpose of this case, it is held that the petitioner is the mother and legal heir of the deceased.
39. It is the case of the petitioners that the deceased was aged 13 years and apart from being a student, was doing part time work and getting Rs.3,300/- per month and contributing the entire income to the family.
40. As far as the age of the deceased is concerned, if Ex.P.11 - copy of Aadhaar Card is perused, the date of birth of the deceased is shown as 26.03.2002. Further, Ex.P.2 - PM Report and Ex.P.3 Inquest Mahazar, show the age of the deceased as 13 years. The said fact is not disputed.
41. As far as avocation and income of the deceased is concerned, though the petitioner claims that her son was doing part time work apart from studying and earning Rs.3,300/- per month and contributing the same to the family, the said assertion of the petitioner cannot be accepted, for the reason that since as per Ex.P.7 - Identity Card of the deceased, the deceased was studying in 8th standard and a student of 8th standard, would earn Rs.3,000/- per month from his part time work, apart from his studies, is a fact, which one cannot believe and therefore, this version of the petitioner unbelievable. Even otherwise, the petitioner has not examined the person under whom the deceased was working as a part time worker and therefore, the said contention of the petitioner is rejected.
42. So far as awarding compensation in a case of death of a minor is concerned, I deem it just and proper on my part to refer to the judgment of the Hon'ble Supreme Court in Civil Appeal No. 7137 of 2013 (Arising out of SLP(C) No. 21139 of 2011) Kishan Gopal and another Vs Lala and others) decided on 26.8.2013. In the said case also, the deceased was a minor and the Apex Court, having considered all the relevant attending facts, has awarded Rs.4,50,000/- towards loss of dependency and Rs.50,000/- towards conventional heads ie., loss of love and affection, funeral expenses last rites and thus, in all awarded Rs.5,00,000/- as global compensation. In this case also, since the deceased was minor aged 13 years, based on the principle laid down in the above case, I award a global compensation of Rs.5,00,000/- to the petitioner, for the death of hers on in the accident.
43. As regards the liability to be fixed on the respondents, admittedly the respondent No.1 is the owner and the respondent No.2 is the insurer of the lorry involved in the accident. However, by examining RW 1, the respondent No.2 has made an effort to show that in regard to the accident in question, the jurisdictional police, after investigation filed charge sheet against the owner of the motorcycle for not only allowing a minor boy to ride the motorcycle, but also for causing the accident and further since the motorcycle was not having insurance, a false claim is made against the respondent no.2 and hence, the respondent No.2, being not a necessary party, the petition as against the respondent No.2 deserves to be dismissed. This contention of the respondent No.2 cannot be accepted for the reason that Section 163-A of the MV Act is enacted keeping in view the principle of social justice and further, when there is provision in the law itself to claim compensation from the owner and insurer of any one of the vehicles and further when the involvement of the lorry insured by respondent No.2 is clearly established, both are jointly and severally liable to pay compensation to the petitioners. However, primary liability is fixed on respondent No.2 to satisfy the award. Accordingly, issue No.3 is answered.
44. In the case reported in 2013 AIR SCW 5375 (Minu Raut and others Vs. Satya Pradyumna and others), the Supreme Court has awarded interest at the rate of 9% on the compensation amount. Even in this case also, considering the present day cost of living, I deem it just and proper to award interest at 9% p.a. on the compensation amount.
45. Issue No.3: In the result I proceed to pass the following: -
ORDER The petition filed by the petitioner is allowed in part. The petitioner is entitled for compensation of Rs.5,00,000/- with interest at the rate of 9% per annum from the date of petition till realization.
The respondents No.1 and 2 are jointly and severally liable to pay the award amount within two months from the date of this order. However, the primary liability to pay the compensation amount is fixed on the respondent No.2 - Insurance Company.
50% out of the compensation amount is ordered to be invested in high yielding fixed deposit in her name in any of the nationalized or scheduled bank of her choice for a period of 5 years. Remaining amount with entire interest is ordered to be released to her.
Advocate's fee is fixed at Rs.1,000/-. Draw an award accordingly.
(Dictated to the Judgment Writer directly on computer, corrected, signed and then pronounced by me in the open court dated this the 6.3.2017) (H.P.SANDESH) Member, Prl. M.A.C.T. Bangalore ANNEXURE Witnesses examined on behalf of the petitioners:
P.W.1 : Smt.Rathnamma Witnesses examined on behalf of the respondents :
R.W.1 : Santhosh B.L., Documents marked on behalf of the petitioners:
Ex.P-1 : Certified copy of FIR & complaint Ex.P-2 : PM Report Ex.P-3 : Inquest Report Ex.P-4 : Mahazar Ex.P-5 : Sketch Ex.P-6 : IMV Report Ex.P-7: Notarised copy of ID Card Ex.P-8 : Notarised copy of Election ID Card Ex.P.9: Notarised copy of Aadhaar Card Ex.P.10: Notarised copy of Ration Card Ex.P.11: Notarised copy of Aadhaar Card Ex.P.12: Charge Sheet
Documents marked on behalf of the respondents:
Ex.R.1 : Insurance Policy
(H.P.SANDESH)
Member, Prl. M.A.C.T. Bangalore