Bangalore District Court
In Smt. P.Padmamma vs Sri V.Subramanyam on 19 April, 2022
KABC020225952019
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS TRIBUNAL,
BENGALURU CITY
SCCH14
PRESENT: Smt.Parveen A Bankapur,
B.Com.LL.B.(Spl),
Member, MACT,
XVI ADDL. JUDGE,
Court of Small Causes,
Bengaluru.
Dated this the 19th day of April 2022
MVC No.5351, 5352, 5353, 5354, 5355, 5356, 5357, 5358 &
5359/2019
Petitioner in Smt. P.Padmamma,
MVC No.5351/2019 W/o P.Beeru Gowdu,
Aged about 44 years,
R/at No.6171, Kurapalli village,
Gangavaram Mandal,
Chittoor district,
Andra Pradesh.
Petitioner in J.Parvathamma,
MVC No.5352/2019 W/o J.Venkatappa,
Aged about 65 years,
R/at No.136/2,
Kaminayanapalle Village,
SCCH14 2 MVC No.5351 to 5359/19
Baireddipalle mandal,
Chittoor district,
Andra Pradesh.
Petitioner in Kumari. M.Indhu,
MVC No.5353/2019 D/o M.Raghupathi,
Aged about 7 years,
since petitioner is minor
rep. By her mother/next friend
Smt.M.Kumari,
W/o M.Raghupathi,
Aged about 30 years,
Both are R/at
Kothapalli Village,
Gangavaram mandal,
Chittoor district, Andra Pradesh.
Petitioners in 1. K.Subramanyam,
MVC No.5354/2019 S/o K.Thimmappa,
Aged about 49 years.
2. Smt. K.Ademma,
W/o K.Subramanyam,
Aged about 32 years,
Both are R/at No.19/2,
Mtta Kurapalli, Pathuru Nattham,
Baireddypalle mandal,
Chittoor district, Andra Pradesh.
Petitioners in 1. K.Subramanyam,
MVC No.5355/2019 S/o K.Thimmappa,
Aged about 49 years.
2. Kumari K.Bhagya,
SCCH14 3 MVC No.5351 to 5359/19
D/o K.Subramanyam,
Aged about 14 years,
3. Master K.Bharath Sreenath,
S/o K.Subramanyam,
Aged about 8 years,
No.2 and 3 are minors,
Rep. By their father / next friend
All are R/at No.19/2,
Mtta Kurapalli, Pathuru Nattham,
Baireddypalle mandal,
Chittoor district, Andra Pradesh.
Petitioners in 1. K.Narayanamma,
MVC No.5356/2019 W/o Late K.Krishnappa Gowdu,
Aged about 58 years.
2. Sri. K.Mallikarjuna Goud,
S/o Late K.Krishnappa Gowdu,
Aged about 30 year,
Both are R/at No.634,
D.Kurapalli, Gangavaram mandal,
Chittoor district, Andra Pradesh.
Petitioners in 1. A.Ramanappa,
MVC No.5357/2019 S/o A.Venkatappa,
Aged about 53 years.
2. Kumari. A.Sireesha,
D/o A.Ramanappa,
Aged about 16 years,
Minor represented by her
father / petitioner No.1 both are
R/at 15/4, Mtta Kurapalli,
SCCH14 4 MVC No.5351 to 5359/19
Pathuru Nattham,
Baireddypalle mandal,
Chittoor district, Andra Pradesh.
Petitioners in 1. Smt. P.Amaravathi,
MVC No.5358/2019 W/o P.Seenappa @ Srinivasulu,
Aged about 38 yeas,
2. Master P.Prathap,
S/o P.Seenappa @ Srinivasulu,
Aged about 14 years,
Physically handicapped.
3. Kumari P.Spadana,
D/o P.Seenappa @ Srinivasulu,
Aged about 12 years.
4. Kumari P.Janaki,
D/o P.Seenappa @ Srinivasulu,
Aged about 10 years,
petitioner No.2 to 4 are
minors, rep. by their mother/
petitioner No.1, All are residing
R/at No.361/3, Nagireddyapalle,
Baireddypalle mandal,
Chittoor district, Andra Pradesh.
Petitioner in Smt. P.Amaravathi,
MVC No.5359/2019 W/o P.Seenappa @ Srinivasulu,
Aged about 38 yeas,
R/at No.361/3, Nagireddyapalle,
Baireddypalle mandal,
Chittoor district,
Andra Pradesh.
(Pleader by Sri.T.V.Ramesh)
SCCH14 5 MVC No.5351 to 5359/19
V/s
Respondent/s 1. Sri V.Subramanyam,
IN ALL CASES C/o V.Santhi, Major,
R/at No.8374/2,
Sai nagar, Rajiv nagar,
Tirupathi, Chittoor district,
Andra Pradesh517501.
(Exparte)
2. The ICICI Lombard Gen.Ins.Co.,
No.121, 9th floor,
The estate building, Dickson road,
Bengaluru01.
(By pleader, Sri.M.E.Madhu Sudhan)
3. B.Nisar Basha,
S/o Munaf Saheb, No.4/122,
Guntoor road, Gollapalli village,
Bangarupalem mandal,
Doddaballapura taluk,
Chittoor district,
Andra Pradesh State,
(Exparte)
4. The Manager,
The New India Gen.Ins.Co.Ltd.,
No.9, 2nd floor, Mahalakshmi
Chambers, M.G.Road,
Bengaluru52
(By pleader, Sri.Jagadeesh G.S.)
SCCH14 6 MVC No.5351 to 5359/19
COMMON JUDGMENT
The petitioner in MVC No.5351/2019 filed this petition
under Sec.166 of Motor Vehicles Act claiming compensation of
Rs.10,00,000/ for the injuries sustained by her in a road traffic
accident.
The petitioner in MVC No.5352/2019 filed this petition
under Sec.163A of Motor Vehicles Act claiming compensation of
Rs.10,00,000/ for the injuries sustained by her in a road traffic
accident.
The petitioner in MVC No.5353/2019 filed this petition
under Sec.166 of Motor Vehicles Act claiming compensation of
Rs.5,00,000/ for the injuries sustained by her in a road traffic
accident.
The petitioners in MVC No.5354/2019 filed this petition
under Sec.163A of Motor Vehicles Act claiming compensation of
Rs.10,00,000/ for the death of K.Nandeesh S/o
K.Subramanyam in a road traffic accident.
The petitioners in MVC No.5355/2019 filed this petition
under Sec.166 of Motor Vehicles Act claiming compensation of
Rs.25,00,000/ for the death of K.Devamma W/o
K.Subramanyam in a road traffic accident.
SCCH14 7 MVC No.5351 to 5359/19
The petitioners in MVC No.5356/2019 filed this petition
under Sec.166 of Motor Vehicles Act claiming compensation of
Rs.20,00,000/ for the death of K.Krishnappa Goud S/o Late
Venkatappa Goud in a road traffic accident.
The petitioners in MVC No.5357/2019 filed this petition
under Sec.166 of Motor Vehicles Act claiming compensation of
Rs.20,00,000/ for the death of K.Krishnamma W/o
A.Ramanappa in a road traffic accident.
The petitioner in MVC No.5359/2019 filed this petition
under Sec.166 of Motor Vehicles Act claiming compensation of
Rs.10,00,000/ for the injuries sustained by her in a road traffic
accident.
The petitioners in MVC No.5358/2019 filed this petition
under Sec.166 of Motor Vehicles Act claiming compensation of
Rs.30,00,000/ for the death of Srinivasulu @ P.Seenappa S/o
Batheppa in a road traffic accident.
Since all petitions arising out of same accident, they are
clubbed together for common discussion to avoid repetition of
facts and evidence of parties.
2. The brief facts of both cases of petitioners are as
SCCH14 8 MVC No.5351 to 5359/19
under:
It is alleged that, on 12.06.2019 at about 9.30 a.m., when
the petitioner Padmamma, J.Venkatappa, Indu, Amaravathi and
deceased K.Nandeesh, K.Devamma, K.Krishnappa Goud,
A.Krishnamma and Srinivasulu @ Seenappa were proceeding as
passengers in Auto Rickshaw bearing Reg.No.AP03X5047
driven by its driver in slowly, cautiously, on the correct side of
the road, when they reached near Anjaneyaswamy temple,
Palamaner Mandal, PalamanerChittoor, NH69 road, Chittoor
district, Andhra Pradesh, at that time a Eicher Goods vehicle
bearing Reg.No.AP39T5200 came from opposite direction at
high speed in a rash and negligent manner, came to the
violently against the Auto Rickshaw bearing Reg.No.AP03X
5047, due to which, all the occupants of the auto were
sustained grievous injuries all over the body and Devamma in
MVC 5355/2019 and Krishnappa Goud in MVC 5356/2019
were succumbed to the injuries on the spot.
Immediately after the accident, the petitioner in MVC
5351/2019, 5353/2019 and 5358/2019 were shifted to
government Hospital, Palamner and after first aid they were
shifted to Sudha hospital and petitioner in 5358/2019 shifted
to PES institute of Medical Science and Research hospital,
SCCH14 9 MVC No.5351 to 5359/19
Kuppam.
Immediately after the accident, deceased Venkatappa in
MVC 5352/2019, Nandeesh in MVC 5354/2019, Krishnamma
in MVC 5357/2019 and Srinivasulu in MVC 5359/2019 were
shifted to government Hospital, Palmaner but they were
succumbed to the injuries while on treatment.
The petitioners in all cases submitted that, the accident in
question had occurred due to rash and negligent driving of
driver of offending Eicher Goods vehicle bearing Reg.No.AP39
T5200. The respondents No.1 & 2 being owner and insurer of
offending Eicher Goods vehicle bearing Reg.No.AP39T5200
and respondent No.3 and 4 are the owner and insurer of Auto
Rickshaw bearing Reg.No.AP03X5047 are jointly and
severally liable to pay compensation. The jurisdictional
Palamner Urban Police have registered a case in Crime
No.0079/2019 against the driver of offending vehicle for the
offences under Sec.279, 337 and 304(A) of IPC. Hence, on all
these grounds, the petitioners in all cases have prayed for
awarding compensation with interest and cost.
3. In pursuance of the notice, the respondents No.1 & 3
SCCH14 10 MVC No.5351 to 5359/19
are absent and placed exparte and the respondent No.2 and 4
appeared before the Tribunal through their respective counsel
and filed their objection statement.
This Respondent No.2 and 4 contended that, Petitions are
not maintainable either in law or on facts of the case. Further
this Respondents have denied the age, avocation and income of
deceased and petitioner.
Further the Respondent No.2 denies the existence of the
policy in respect of the vehicle bearing No.AP39T5200 of the
1st respondent. Further this respondent does not admits the
allegations made in column No.1 to 4 of the petition. Further
contended that is respondent No.1 has not submitted any
documents like RC, DL etc., for verification. Further contended
that the driver of the vehicle drove the same without having
driving license at the material time of accident. Further
contended that, the petitioner was taking with driver and other
persons and distrubed the driver of the auto. The driver of the
auto was driven the vehicle in the rash and negligent manner in
the middle of the road and all of a sudden came and hit to the
vehicle of the respondent No.2 and caused the accident. The
entire negligence is on the part of the auto where the petitioner
was travelling to cause the accident.
SCCH14 11 MVC No.5351 to 5359/19
The respondent No.4 denies each and every allegation
made in the claim petition. Further admits the issuance policy
bearing No.61270531180200002588 in respect of auto valid
from 14.02.2019 ti 13.02.2020 in favour of third respondent.
The alleged accident is false, no such accident took place as
alleged. Further contended that, on 12.06.2019, the driver of
the offending vehicle drove the same in a rash and negligent
manner and dashed against the auto and caused the accident.
There is no negligence on the part of the driver of auto, on the
contrary the driver of offending vehicle caused the accident.
Further contended that, at the time of the accident respondent
No.3 being driver and owner of auto loaded with nearly 12
passengers and the driver of the auto violated the terms and
conditions of the policy. Hence, on all these grounds, the
respondent No.2 and 4 prayed for dismissal of all claim
petitions with costs.
4. Based on the above pleadings, this Tribunal has
framed the following :
ISSUES IN MVC.No.5351/2019, 5353/2019 and 5359/2019
1) Whether the petitioner prove that, he/she sustained
grievous injuries in the nature of permanent
disablement on 12.06.2019 at about 9.30 a.m., on
SCCH14 12 MVC No.5351 to 5359/19
Anjaneyaswamy temple, Palamaner Mandal,
PalamanerChittoor, NH69 road, Chittoor district,
Andhra Pradesh, in an accident arising due to rash
and negligent driving of driver of Eicher Goods
vehicle bearing Reg.No.AP39T5200?
2) Whether the petitioner is entitled for compensation?
If so, how much and from whom?
3) What order or award?
ISSUES IN MVC.No.5352/2019
1) Whether the Petitioners prove that they are the legal
representatives of the deceased?
2) Whether the petitioners prove that, Venkatappa died
due to injuries sustained by him in an accident
occurred on 12.06.2019 at about 9.30 a.m., on
Anjaneyaswamy temple, Palamaner Mandal,
PalamanerChittoor, NH69 road, Chittoor district,
Andhra Pradesh, arising while he was traveling in
Auto bearing its Reg.No.AP03X5047, which met with
an accident with Eicher Goods vehicle bearing
Reg.No.AP39T5200 as alleged?
3) Whether the petitioners are entitled for
compensation? If so, how much and from whom?
4) What order or award?
ISSUES IN MVC.No.5354/2019
1) Whether the Petitioners prove that they are the legal
representatives of the deceased?
2) Whether the petitioners prove that, Nandeesh died
SCCH14 13 MVC No.5351 to 5359/19
due to injuries sustained by him in an accident
occurred on 12.06.2019 at about 9.30 a.m., on
Anjaneyaswamy temple, Palamaner Mandal,
PalamanerChittoor, NH69 road, Chittoor district,
Andhra Pradesh, arising while he was traveling in
Auto bearing its Reg.No.AP03X5047, which met with
an accident with Eicher Goods vehicle bearing
Reg.No.AP39T5200 as alleged?
3) Whether the petitioners are entitled for
compensation? If so, how much and from whom?
4) What order or award?
ISSUES IN MVC.No.5355/2019
1) Whether the Petitioners prove that they are the legal
representatives of the deceased?
2) Whether the petitioners prove that, Devamma died
due to injuries sustained by her in an accident
occurred on 12.06.2019 at about 9.30 a.m., on
Anjaneyaswamy temple, Palamaner Mandal,
PalamanerChittoor, NH69 road, Chittoor district,
Andhra Pradesh, in an accident arising due to rash and
negligent driving of driver of Eicher Goods vehicle
bearing Reg.No.AP39T5200?
3) Whether the petitioners are entitled for
compensation? If so, how much and from whom?
4) What order or award?
ISSUES IN MVC.No.5356/2019
1) Whether the Petitioners prove that they are the legal
representatives of the deceased?
2) Whether the petitioners prove that, Krishnappa
SCCH14 14 MVC No.5351 to 5359/19
Goud died due to injuries sustained by him in an
accident occurred on 12.06.2019 at about 9.30 a.m.,
on Anjaneyaswamy temple, Palamaner Mandal,
PalamanerChittoor, NH69 road, Chittoor district,
Andhra Pradesh, in an accident arising due to rash and
negligent driving of driver of Eicher Goods vehicle
bearing Reg.No.AP39T5200?
3) Whether the petitioners are entitled for
compensation? If so, how much and from whom?
4) What order or award?
ISSUES IN MVC.No.5357/2019
1) Whether the Petitioners prove that they are the legal
representatives of the deceased?
2) Whether the petitioners prove that, Krishnamma
died due to injuries sustained by her in an accident
occurred on 12.06.2019 at about 9.30 a.m., on
Anjaneyaswamy temple, Palamaner Mandal,
PalamanerChittoor, NH69 road, Chittoor district,
Andhra Pradesh, in an accident arising due to rash and
negligent driving of driver of Eicher Goods vehicle
bearing Reg.No.AP39T5200?
3) Whether the petitioners are entitled for
compensation? If so, how much and from whom?
4) What order or award?
ISSUES IN MVC.No.5358/2019
1) Whether the Petitioners prove that they are the legal
representatives of the deceased?
2) Whether the petitioners prove that, Srinivasulu died
SCCH14 15 MVC No.5351 to 5359/19
due to injuries sustained by him in an accident
occurred on 12.06.2019 at about 9.30 a.m., on
Anjaneyaswamy temple, Palamaner Mandal,
PalamanerChittoor, NH69 road, Chittoor district,
Andhra Pradesh, in an accident arising due to rash and
negligent driving of driver of Eicher Goods vehicle
bearing Reg.No.AP39T5200?
3) Whether the petitioners are entitled for
compensation? If so, how much and from whom?
4) What order or award?
5. The Petitioner in MVC.5351/2019 examined as PW.1
and got marked documents at Ex.P.1 to 8, petitioner in in
MVC.5352/2019 examined as PW.2 and got marked documents
at 9 to 13, natural guardian of the petitioner in
MVC.5353/2019 examined as PW.3 and got marked documents
at Ex.P.14 to 18, petitioner No.1 in MVC.5354/2019 and in
MVC.5355/2019 examined as PW.4 and got marked documents
at 19 to 34, petitioner No.1 in MVC.5356/2019 examined as
PW.5 and got marked documents at Ex.P.35 to 40, petitioner
No.1 in MVC.5357/2019 examined as PW.6 and got marked
documents at Ex.P.41 to 47 and petitioner in MVC.5358/2019
and petitioner No.1 in MVC.5359/2019 examined as PW.7 and
got marked documents at Ex.P48 to 62. Further the petitioner
in MVC 5351/2019, MVC.5353/2019 and MVC.5358/2019
SCCH14 16 MVC No.5351 to 5359/19
examined Dr.Nagaraj.B.N. as PW.8 and got marked documents
at Ex.P.63 to 68. On the other hand, respondent No.2
examined its Legal Manager as RW.1 and the respondent No.4
examined its Administrative Officer as RW.2 and got marked
documents at Ex.R1 to 5.
6. Heard the arguments and perused the records. The
learned counsel for the petitioner has relied on the following
citations:
1. 2002 ACJ 1720, in between Pramodkumar Rasikbhai
Jhaveri Vs. Karmasey Kunvargi Tak and others.
2. 2010(2) T.A.C. 335 (J&K), in between Ranjeet Kour
and others Vs. Union of India and others.
3. 2011(4) AIR Kar R 91, in between KSRTC, Urban
Division, Bannimantap, Mysore Vs. Mahadevamma and
others.
4. 2010 ACJ 1340, in between Oriental Ins.Co.Ltd., Vs.
Kamli and others.
5. AIR 2002 Supreme Court 2864, in between
Pramodkumar Rasikbhai Jhaveri, Vs. Karmasey Kunvargi
Tak and others.
6. Civil Appeal No.6151/2021, in between National
SCCH14 17 MVC No.5351 to 5359/19
Ins.Co.Ltd., Vs. Chamundeswari and others.
7. 2015 ACJ 1441, in between Khenyei Vs. New India
Assu.Co.Ltd., and others.
7. On careful appreciation of the entire materials and
evidence on record, the above issues are answered as under:
IN MVC.No.5351/2019
Issue No.1: In the Affirmative
Issue No.2: Partly in the Affirmative
Issue No.3: As per final order,
for the following:
IN MVC.No.5352/2019
Issue No.1: Partly in the Affirmative
Issue No.2: In the Affirmative.
Issue No.3: Partly in the Affirmative.
Issue No.4: As per final order,
for the following:
IN MVC.No.5353/2019
Issue No.1: In the Affirmative
Issue No.2: Partly in the Affirmative
Issue No.3: As per final order,
for the following:
SCCH14 18 MVC No.5351 to 5359/19
IN MVC.No.5354/2019
Issue No.1: Partly in the Affirmative
Issue No.2: In the Affirmative.
Issue No.3: Partly in the Affirmative.
Issue No.4: As per final order,
for the following:
IN MVC.No.5355/2019
Issue No.1: Partly in the Affirmative
Issue No.2: In the Affirmative.
Issue No.3: Partly in the Affirmative.
Issue No.4: As per final order,
for the following:
IN MVC.No.5356/2019
Issue No.1: Partly in the Affirmative
Issue No.2: In the Affirmative.
Issue No.3: Partly in the Affirmative.
Issue No.4: As per final order,
for the following:
IN MVC.No.5357/2019
Issue No.1: Partly in the Affirmative
Issue No.2: In the Affirmative.
Issue No.3: Partly in the Affirmative.
Issue No.4: As per final order,
for the following:
SCCH14 19 MVC No.5351 to 5359/19
IN MVC.No.5358/2019
Issue No.1: In the Affirmative
Issue No.2: Partly in the Affirmative
Issue No.3: As per final order,
for the following:
IN MVC.No.5359/2019
Issue No.1: Partly in the Affirmative
Issue No.2: In the Affirmative.
Issue No.3: Partly in the Affirmative.
Issue No.4: As per final order,
for the following:
REASONS
8. Issue No.1 in MVC No.5351/2019, 5353/2019,
5358/2019 & Issue No.2 in MVC No.5352/2019,
5354/2019, 5355/2019, 5356/2019, 5357/2019 &
5359/2019:
All Petitioners in all cases are filed this petition for seeking
compensation for the injuries sustained in MVC No.5351/2019,
5353/2019 and 5358/2019 and death of Venkatappa,
Nandeesh, Devamma, Krishnappa Goud, Krishnamma and
srinivasulu in RTA which occurred on 12.06.2019 due to
actionable negligence on the part of the driver of the Eicher
Goods vehicle bearing Reg.No.AP39T5200 by its driver. Per
SCCH14 20 MVC No.5351 to 5359/19
contra respondent No.2 has denied the same and alleged
accident, manner in which the accident took place and also
rash and negligent driving of the driver of the offending vehicle.
9. In order prove the case, petitioners in all petitions have
examined as PW.1 to 7 and got marked documents at Ex.P.1 to
62.
10. Further the petitioners relied in all documents out of
which, Ex.P1 is the copy of FIR and Ex.P.2 is the complaint
lodged by one Mangamma, based on which the Palamner Urban
Police have registered a case in crime No.0079/2019 against
the driver of the Eicher Goods vehicle bearing Reg.No.AP39T
5200 for the offences punishable U/s.279, 337 and 304(A) of
IPC, Ex.P3 is the copy of spot mahazar with sketch, Ex.P4 is the
IMV report, Ex.P5 is the copy charge sheet filed against the
driver of offending Eicher Goods vehicle bearing Reg.No.AP39
T5200 and the driver of the Auto bearing No.AP39X5047 for
the offences punishable U/s 279, 337, 338, 304(A) of IPC, Ex.P6
is the wound certificate, Ex.P7 is the discharge summary. No
doubt that the counsel for the respondent No.2 though cross
examined petitioners, but in my opinion, nothing worth has
been elicited in order to disbelieve their both oral and
SCCH14 21 MVC No.5351 to 5359/19
documentary evidence. On the other hand in the cross
examination PW1 to 7 are admits that due to rash and
negligence driving of the driver of Eicher vehicle only the said
accident was occurred. Further admits that any fault in the
driving of the driver of the Auto.
11. Ex.P3 is the sketch map of the accident spot. On
perusal of the Ex.P3, it was national high way and both side
30 feet road. The Eicher vehicle was came opposite side of the
Auto and dashed to the auto and auto was turned right side. On
careful perusal of the sketch map, auto was proceeding left side
of the road and Eicher was came wrong side and dashed to the
auto front portion. As per the sketch map it is national high
and Auto was coming left side of the road and Eicher was
coming right side which is wrong side. Therefore, on perusal of
the sketch map it appears that, Eicher vehicle was came wrong
side of the road and dashed against the Auto. Therefore, no
negligence of the driver of the auto in this accident.
12. The learned counsel for respondent No.2 vehemently
argued that,in the said Auto about 12 members are traveling,
hence contributory negligence of the petitioners, Auto driver
and Eicher driver. Therefore, equal negligence of the all three
SCCH14 22 MVC No.5351 to 5359/19
persons. It is pertaining to note that, it is already discussed
above due to rash and negligence driving of the driver of the
Eicher vehicle only said accident was occurred. Therefore,
petitioners are third parties to the Eicher vehicle. In this regard
learned counsel for petitioner has relied AIR 2002 Supreme
Court 2864, Pramodkumar Rasikbhai Jhaveri Vs Karmasey
Kunvargi Tak and others,
wherein the Hon'ble High Court held that,
Words and Phrases Expression "Contributory
negligence" Does not mean breach of any
duty It only means failure by a person to use
reasonable care for safety of either himself or
his property.
A finding of contributory negligence turns
on a factual investigation whether the
plaintiff contributed to his or her own loss by
failing to take reasonable case of his or her
person or property. What is reasonable care
depends on the circumstances of the case. In
many cases, it may be proper for a plaintiff to
rely on the defendant to perform duties its
duty. But there is no absolute rule. The duties
and responsibilities of the defendant are a
variable factor in determining whether
contributory negligence exists and, if so, to
what degree. In some cases, the nature of the
duty owned may exculpate the plaintiff from a
claim of contributory negligence. In other
cases, the nature of the duty reduce the
plaintiff's share of responsibility for the
SCCH14 23 MVC No.5351 to 5359/19
damage suffered and in yet other cases the
nature of the duty may not prevent a finding
that the plaintiff failed to take responsible
care for the safety of his or her person or
property. Contributory negligence focuses on
the conduct of the plaintiff. The duty owned
by the defendant, although relevant, is one
only many factors that must be weighed in
determining whether the plaintiff has so
conducted itself that it failed to take
reasonable care for the safety of its person or
property.
Further, learned counsel for petitioner argued that, the
respondent No.2 has not pleaded or taken defence in his written
statement about the fact of contributory negligence and no
allegation about the contributory negligence of the Auto driver
and petitioners. In this regard the counsel for petitioner has
relied AIR 2002 Supreme Court 2864, Pramodkumar
Rasikbhai Jhaveri Vs Karmasey Kunvargi Tak and others,
In para No.11 the Hon'ble Apex court held that;
It is important to note that the respondents did not
contend before the tribunal that there was contributory
negligence on the part of the appellant, the driver of
the car. There was not even an allegation in the
written statement filed by the respondents that the cr
driver was negligent and the accident occurred as
result of partial negligence of the car driver. During
the trial of the case, there was an attempt on the part
of the respondents to contend that the driver of the car
was trying to overtake a truck which was going ahead
SCCH14 24 MVC No.5351 to 5359/19
of the car. The appellantcar driver had also pleaded
that the truck driven by the second respondent was
trying to overtake another car, which was going ahead
of the truck. But these circumstances are not proved
by satisfactory evidence. One expert had also given
evidence in this case but he had not seen the accident
spot. His opinion was based on the observation of the
damaged parts of the two vehicles. The total width of
the tarred portion of the road was 22 feet and there
were mud shoulders on either side having width of
three feet. It is proved by satisfactory evidence that
the offending truck had come to the central portion of
the road and there was only a three feet width of the
road on the left side of the car driven by the appellant.
In this factual situation, the High Court was not
justified in holding that there was contributory
negligence on the part of the appellant. It would, if at
all, only prove that the appellant had not shown
extraordinary precaution. The truck driven by the
respondent No.2 almost came to the centre of the road
and the appellant must have been put in a dilemma
and the in the agony of that moment, the appellant's
failure to swerve to the extreme left of the road did not
amount to negligence. Thus, there was no
contributory negligence on his part especially when the
respondent No.2, the truck driver had no case that the
appellant was negligent.
Further, in 2010(2) TAC 335 (J&K), Ranjeet Kour and
other Vs Union of India and others it is held that,
The tribunal has lost sight of very important aspect of
law that the plea of contributory negligence was not
raised and it travelled beyond pleadings. The
tribunal/court cannot carve out that case, which is not
pleaded. There is no issue relating to contributory
negligence. The Apex Court in case titled Pramod
Kumar Rashibhai Jhaveri Vs. Karmasey Kunvargi Tak
& others, A.I.R. 2002 S.C.2864, has defnied what does
SCCH14 25 MVC No.5351 to 5359/19
contributory negligence mean, when it arises and in
which circumstances an accident can be said to be
outcome of contributory negligence. It has further held
that when plea of contributory negligence is not raised
or taken, the Tribunal or Court cannot hold that
accident is outcome of contributory accident. It is apt
to reproduce relevant para of the judgment.
Further, in 2011(4) AIR Kar 91, Divisional Controller
KSRTC, Urban Division, Bannimatnap, Mysore VS
Mahadevamma and others,
Perusal of the sketch and the evidence shows that
the bus has moved on its right side, undoubtedly, the
deceased were on the left side, the bus had a space on
its left side, despite that, it has moved on the right
side and caused an accident. Even if there is space,
the bus driver had taken little care, he would have
avoided the accident. May be, three persons going on
motor bike, violation of the permit or it may be an
offence, however, they are third parties, the claimants
cannot be denied of compensation. Merely because
the deceased were three in number, it cannot be said
that they were negligent. They might have violated the
law, but negligence is concerned, the evidence shows
that the driver of the bus was negligent in driving the
bus. In my opinion, the finding given by the tribunal
as regard to the negligence is concerned, it is based on
proper appreciation of the evidence.
Further, learned counsel for petitioner relied judgment of
Hon'ble Supreme Court of India in Civil Appeal
No.6151/2021, National Insurance Company Ltd Vs
Chamudeswari and others, The Hon'ble Supreme Court held in
SCCH14 26 MVC No.5351 to 5359/19
para No.8 of the judgment as under;
It is clear from the evidence on record of PW.1 as well
as PW.3 that the Eicher van which was going in front
of the car, has taken a sudden right turn without
giving any signal or indicator. The evidence of PW.1 &
PW.3 is categorical and in absence of any rebuttal
evidence by exzmining the driver of Eicher van, the
High Court has rightly held that the accident occurred
only due to the negligence of the driver of Eicher van.
It is to be noted that PW.1 herself travelled in the very
car and PW.3, who has given statement before the
police, was examined as eye witness. In view of such
evidence on record, there is no reason to give
weightage to the contents of the first information
report. If any evidence before the Tribunal ruris
contrary to the contents in the first information report,
the evidence which is recorded before the tribunal has
to be given weightage over the contents of the first
information report. In the judgment, relied on by the
appellant's counsel in the case of Oriental Insurance
Company Limited.
13. On going through the above decisions referred, in the
present case also even though the charge sheet speaks that,
both drivers of in rash and negligence in driving of their
respective vehicles. But as per the above decisions, and looking
to the sketch map of the accident spot and evidence of PW1 to
7, it is clear that, only on the part of the negligence of the driver
of Eicher vehicle the said accident was occurred. Therefore not
contributory negligence on part of the driver of the Auto or
petitioners. Under these facts and circumstances, I do not find
any reasons to disbelieve the evidence adduced by the
SCCH14 27 MVC No.5351 to 5359/19
petitioners in order to establish the rash and negligent driving
on the part of the driver of Eicher Goods vehicle bearing
Reg.No.AP39T5200.
14. On the other hand, the respondent No.2 has
examined its Legal Manager as RW.1. He deposed that due to
the rash and negligence driving of the driver of the Auto only
said accident was occurred and in the Auto there were 12
members are traveling which is against the rules. Further, the
driver of the Auto was not holding valid driving licence to drive
the Auto. In the crossexamination he admits that, Auto was
proceeding from Palamner to Chittur and Eicher vehicle was
proceeding from Chittur. He further admits that accidental road
width was 60 feet and in between road mediator was there. He
denied that Eicher was crossing the mediator and came to the
right of the road and dashed to the Auto. But sketch map of the
accident spot was clearly shows that Eicher vehicle was came
with wrong side and dashed against the Auto.
15. Besides, as has been stated above, the jurisdictional
police have investigated the accident in question and filed
charge sheet at Ex.P5 wherein the police have made specific
allegation that the accident in question had taken place because
SCCH14 28 MVC No.5351 to 5359/19
of the actionable negligence of the driver of Eicher Goods vehicle
bearing Reg.No.AP39T5200 the offending vehicle ie.,
respondent No.1. Besides, the respondents have not produced
anything to show that he have challenged the correctness of the
'A' chargesheet filed by the jurisdictional police; further Non
examination of the driver of offending Eicher would leads to
draw an adverse inference. Under these facts and
circumstances, I do not find any reasons to disbelieve the
evidence adduced by the petitioners in order to establish the
rash and negligent driving on the part of the driver hence, it is
sufficient to conclude that the materials available on record are
sufficient to conclude that the accident in question had taken
place because of the actionable negligence of the driver of the
offending vehicle.
16. Besides, it is well settled that in motor vehicle accident
compensation cases the strict proof of negligence is not
required. This view of this court receives support from the law
declared by the Hon'ble Apex Court in the decision reported
in 2009 (13)SCCpage530 in the case of Bimla Devi and
others Vs Himachalapradesh Road Transport Corporation
and another and another decision reported in AIR 2011SC
1504 in the case of Paraeshwari Vs Amir Chand and others.
SCCH14 29 MVC No.5351 to 5359/19
Thus, even this ratio laid down by the Hon'ble Apex Court is
also sufficient to conclude that this court is not supported to
look for strict proof of negligence on the part of the driver of
Eicher Goods vehicle bearing Reg.No.AP39T5200.
17. The next question would be, whether the petitioners
were sustained grievous injuries in the accident. And some of
the died due to injuries sustained in the accident. It is relevant
to note that the petitioners have produced the their respective
wound certificates and inquest panchanamas and PM reports
respectively. Therefore, after considering all the police
documents and evidence of PW1 to 7 in my opinion, the
petitioners have proved that the said accident was only because
of actionable negligence on the part of the driver of offending
vehicle ie., Eicher vehicle, they were sustained grievous injuries
and cause of death due to the injuries. With these observations,
I have answered Issue No.1 in MVC No.5351/2019, 5353/2019,
5358/2019 & Issue No.2 in MVC No.5352/2019, 5354/2019,
5355/2019, 5356/2019, 5357/2019 & 5359/2019 in the
Affirmative.
18. Issue No.2 in MVC.5351/2019: This issue relates to
quantum of compensation to be awarded to the petitioner and
SCCH14 30 MVC No.5351 to 5359/19
liability to pay the same. So, let me consider one by one.
The petitioner has sustained injuries in the said accident.
she has relied upon Ex.P.6 wound certificate issued by Andhra
Pradesh Vaidya Vidhana Parishad and Ex.P.7 discharge
summary, wherein it appears that, petitioner was sustained
following injuries i.e., deformity of lower 1/3 of right upper arm.
According to wound certificate said injury is grievous in nature.
In view of the findings recorded on issue No.1, the petitioner
has suffered injuries because of the actionable negligence on
the part of the driver of offending Car. Hence, the petitioner is
entitled for the compensation.
19. It is the case of the petitioner that, after the accident
she was shifted to government hospital and then shifted to Sai
Sudha hospital, Tirupathi, wherein she admitted on 14.06.2019
and discharged on 20.06.2018, hence she admitted for a period
of more than 7 days. During this period the she taken surgery
and conservative treatment discharged with advise for followup
treatment. I am of the considered opinion that the petitioner has
suffered severely due to the accidental injuries. Hence, the
petitioner is entitled for compensation of a sum of Rs.25,000/
towards Pain and sufferings.
SCCH14 31 MVC No.5351 to 5359/19
20. Further, it can be said that the petitioner must have
incurred some amount for transportation and also spent some
amount towards attendant charges, food and nourishment.
Since, the petitioner has taken treatment as an inpatient in the
hospital. Thus, I deem it just and proper to award Rs.10,000/
towards Attendant, food, conveyance and other incidental
expenses.
21. It is stated in the petition as well as in the evidence of
P.W.1 that, she has spent Rs.50,000/ towards medical
expenses. In order to substantiate the same, the petitioner has
not produced any medical bills. Therefore, in the absence of
medical bills, the petitioner is not entitled for the compensation
under the head of medical expenses.
22. The case of the petitioner is that, at the time of
accident she was healthy and was doing agriculture/Coolie and
was earning Rs.15,000/ per month. In this regard she has not
produced any documents to show that her income was
Rs.15,000/ per month. In the absence of material evidence
and taking into consideration of the age of the petitioner, date of
accident and her avocation and present day condition, if the
monthly income of the petitioner is inferred at Rs.10,000/
SCCH14 32 MVC No.5351 to 5359/19
p.m., that would meet the ends of justice. The nature of
injuries requires followup treatment. Taking all these facts into
consideration, I am of the considered opinion that the petitioner
could not attend to her avocation i.e., during the period of
treatment and rest. Hence, the compensation of Rs.10,000/ is
awarded towards Loss of income during the period of
treatment.
23. It is the evidence of PW.1 that, due to the injuries
sustained in the accident, he is suffering from permanent
disability due to fractures. The petitioner has examined
Dr.Nagaraj.B.N. Orthopaedic Surgeon at SOADS and he has
produced Clinical notes and Xray at Ex.P63 to 64, he has
deposed before this tribunal that the petitioner has fixed flexion.
Further, he deposed that, disability has been assessed and the
patient has permanent disability of the fore arm at 70% and
whole body disability at 23%.
24. During the course of cross examination he stated
that, he has not personally treated the petitioner. Further
contended that, he has not calling the hospital records of all
petitioner before examining and assessment. He has not
consulted the treated doctor. Further contended that, the disk
SCCH14 33 MVC No.5351 to 5359/19
location of Padmamma is reduced. Further denied that,
petitioner is not undergone surgery. Implants are removed.
The fractures are united. Further denied that, petitioner is do
her work as earlier she was doing. He has not furnished
radiological report along with Xray of petitioner. Further
denied that he has not strictly followed the medical guidelines
for assessment of disability of the petitioner. Further denied
that mobility and stability components mentioned in his
affidavit are not caused to the petitioner. Further denied that,
in order to help the petitioner to gain more compensation he
has given higher rate of disability. Petitioner is doing coolie
work. Further denied that, the petitioner now also doing coolie
work. I am of the view that, permanent physical disability of
23% of assessed by him is on higher side. So, by considering
the medical documents and oral evidence of PW8 if the
disability is taken at 18% to the whole body it would be both
justifiable and appropriate.
25. As per police records and hospital records, her age
was 44 years at the time of accident. In this regard petitioner
has produced aadhar card at Ex.P.8 year of birth of the
petitioner is mentioned as 1976. As such, the age of the
petitioner was 43 years as on the date of the accident.
SCCH14 34 MVC No.5351 to 5359/19
Therefore, the proper multiplier applicable to the petitioner is
'14'. Thus, the petitioner is entitled for a compensation of
Rs.10,000x12x14x18%=Rs.3,02,400/ towards Loss of Future
Earnings.
26. PW.8 stated that, in his evidence that he recommended
for another surgery for the release of the contractures. The
estimated cost of the same, Rs.60,000/. But he has not
produced any estimation of cost nor invoice. Hence, by
considering the injuries sustained by the petitioner and
treatment taken for the said injuries this tribunal opined that,
the petitioner is entitled for compensation of Rs.10,000/ for
future medical expenses and this amount does not carry any
future interest.
27. On considering the medical records and considering
overall evidence I am of the view that petitioner has loss of
amenities in her life, hence petitioner is entitled for
compensation of Rs.25,000/ towards loss of amenities.
Thus, I am of the considered opinion that, the petitioner is
entitled for the compensation under the following heads;
SCCH14 35 MVC No.5351 to 5359/19
1. Pain and suffering. : Rs. 25,000/
2. Food and Nourishment, : Rs. 10,000/
conveyance and
attendant charges.
3. Medical expenses :
4. Loss of income during the : Rs. 10,000/
period of treatment.
5. Loss of Future earnings. : Rs.3,02,400/
6. Loss of amenities Rs. 25,000/
7. Future Medical expenses. : Rs. 10,000/
Total Rs.3,82,400/
So, the petitioner is entitled for the total compensation of
Rs.3,82,400/ only.
28. Issue No.1 in MVC.5352/2019: In this case, the
petitioner is the wife of deceased Venkatappa. In order to prove
that she is legal heir of the deceased, the PW.2 has produced
copy of aadhar card of deceased and petitioner and ration card
marked at Ex.P.11 to 13. On perusal of the same it is clear
that, Petitioner is the wife of the deceased Venkatappa. So.
Petitioner is the legal heir and dependent on the earnings of the
deceased. Hence, I answer the Issue No.1 in MVC
5352/2019 in the affirmative.
29. Issue No.3 in MVC.5352/2019: This issue relates
SCCH14 36 MVC No.5351 to 5359/19
to quantum of compensation to be awarded to the petitioner
and liability to pay the same. So, let me consider one by one.
The petitioner has proved the Issue No.1 and the Issue
No.2. Therefore, under these circumstances, petitioner being
the legal heir of the deceased J Venkatappa is entitled for
compensation. The petitioner has filed this petition U/s 163A of
MV Act.
At the out set, it is pertinent to note that petition filed
U/sec.163A, the question to be considered tribunal is the
involvement of the vehicle/s against which the compensation is
sought for and not whether there is rash or negligence on part
of the deceased/driver of the vehicle against which the
compensation is claimed. The aspect of negligence has not rule
whatsoever to decide question of the entitlement for
compensation. Section 163A of the Act itself lays down that;
"not withstanding anything contained in
this act or in any other law for the time being
in force or instrument having the force of law,
the owner of the motor vehicle or the
authorized insurer shall be liable to pay in
case of death or permanent disablement due
to the accident arising out of use of motor
vehicle, compensation, as indicated in the
SCCH14 37 MVC No.5351 to 5359/19
second schedule, to the legal heirs or the
victim as the case may be".
In ILR 2008 KAR 1249 rendered in Oriental Insurance Co.
Ltd., Vs Salma and others, Hon'ble High Court of Karnataka is
held that;
" a petition under section 163A of the
act is maintainable even in case where
negligence is on part of the victim."
Hon'ble Apex Court in a decision reported in (2004) 5 SCC
385 rendered in Deepal Girihsbhai Sono and others VS United
India Insurance Co. Ltd., it is held that;
"Section 163A also covers the cases where
negligence is even on part of the victim held
excluding the defense of contributary
negligence".
In Civil Appeal No.9694/2013 in between United India
Insurance Co. Ltd Vs Sunil Kumar and another, it is held by the
Hon'ble Supreme Court that;
"in a proceedings under section 163A of
IMV Act it is not open for the insurer to raise any
defence of negligence on part of the victim."
SCCH14 38 MVC No.5351 to 5359/19
30. On perusal of the said decision it is observed that
section 163A(2) of the Act , does not specifically exclude a
possible defence of the insurer based on negligence of the
deceased/claimant as contemplated by section 140(4) to permit
such defence to be introduced b the insurer and/or to
understand the provisions of section 163(A) of the Act to be
contemplating an such situation would go contrary to the very
legislative object behind introduction of section 163(A) of the
Act, namely, final compensation within a limited time frame on
the basis of the structured formula to over come situations
where the claims of compensation on the basis of fault liability
was taking an unduly long time. For the said reasons, in a
proceeding under section 163A of the At it is not open for the
insurer to raise any defence of negligence on the part of the
victim.
31. In the present case, it is already decided that due to
rash and negligence driving of the Eicher vehicle only said
accident was occurred. As per the recent decision of the
Hon'ble Supreme Court of India report in 2018 ACJ we grand of
compensation under section 163A of the Act on the basis of
structured formula is in the nature of the a final award and the
SCCH14 39 MVC No.5351 to 5359/19
adjudication there under is required to be made without an
requirement of any proof of negligence of the driver/owner of
the vehicle/s involved in the accident and under section 163A
of the Act, it is not open for the insurer to raise any defence of
negligence on the part of the vehicle.
32. In view of above provisions of law and case laws, it is
crystal clear that in a petition filed under section 163A of the
Act, the proof of negligence is not required to be considered by
the tribunal. All that has to be considered by this tribunal is
whether vehicle against which the claim made is involved in the
accident. In this present petition, it is pertinent to note that,
nowhere in the objection statement the respondent No.1 to 4
have denied the involvement of the Eicher vehicle and Auto.
33. I have carefully gone through the evidence placed by
PW 2. It is important to note that the present petition is filed
under 163A of M.V. Act. It is also important to note that if a
petition is filed under 163(A) of M.V. Act, seeking award of
compensation due to rash and negligent driving of offending
vehicle by its driver. It is not disputed that the final report was
filed against the both drivers. It is not in dispute that the very
involvement took place between two vehicles. In my view when
SCCH14 40 MVC No.5351 to 5359/19
once it is admitted that, in the very accident two vehicles were
involved, which itself sufficient to invoke the provisions
U/Sec.163(A) of Motor Vehicle Act.
34. The contentions of the petitioner that deceased J.
Venkatappa was doing agriculture and earning income of
Rs.40,000/ p.a. But the petitioner has not produced any
documents with respect that deceased was doing agriculture
and getting income of Rs.40,000/ p.a. On perusal of Inquest
panchanama and PM report of deceased J. Venkatappa as per
Ex.P.9 and 10 the age of deceased was 70. Though the
petitioner has not produced any documents in so far as the
avocation and income of the deceased but as per Schedule II of
Section 164 of the MV (Amendment) Act, 2019, brought
into the statute book by way of an amendment in the year
2019, the compensation payable in the case of death due to any
road accident arising out of the use of any motor vehicle is
Rs.5,00,000/.
Hence, petitioner is entitled for the compensation of
Rs.5,00,000/ as provided by II Schedule and section 164 of
the Motor Vehicle (Amendment) Act,2019.
SCCH14 41 MVC No.5351 to 5359/19
35. Issue No.3 in MVC.5353/2019:The minor petitioner
aged about 7 years has sustained injuries in the said accident.
The petitioner has relied upon Ex.P.14 wound certificate issued
by government hospital, wherein it reveals that, the petitioner
sustained Deformity of left shoulder present tenderness. As
per medical records said injury is grievous in nature. In view of
the findings recorded on issue No.1, the petitioner has suffered
injuries because of the actionable negligence on the part of the
driver of Eicher Goods Vehicle bearing Reg.No.AP39T5200.
Hence, the petitioner is entitled for the compensation.
36. It is the case of the petitioner that, after the accident
she was shifted to government hospital, Palmaner and then
shifted to Sai Sudha hospital wherein she was treated as an
inpatient from 13.06.2019 and discharged on 20.06.2019. In
this regard she has produced discharge summary at Ex.P.15.
By taking into consideration of the duration of the treatment as
an inpatient, Outpatient, continued follow up, I am of the
considered opinion, the petitioner has suffered severely due to
the accidental injuries. Hence, the petitioner is entitled for
compensation of a sum of Rs.25,000/ towards Pain and
sufferings.
SCCH14 42 MVC No.5351 to 5359/19
37. Further, it can be said that the petitioner must have
incurred some amount for transportation and also spent some
amount towards attendant charges, food and nourishment.
Thus, I deem it just and proper to award Rs.10,000/ towards
Attendant, food, conveyance and other incidental expenses.
38. It is stated in the petition as well as in the evidence of
P.W.1 that, she has spent Rs.50,000/ towards hospital
charges, medicines, conveyance, nourishment etc. In order to
substantiate the same, the petitioner has not produced any
medical bills. Therefore, in the absence of medical bills, the
petitioner is not entitled for the compensation under the head
of medical expenses.
39. It is the evidence of PW.3 that, due to the injuries
sustained in the accident, she is suffering from permanent
disability due to injuries. It is the evidence of PW.3 that, due to
the injuries sustained in the accident, she is suffering from
permanent disability due to fracture. The petitioner has
examined Dr.Nagaraj B.N., Orthopedic Surgeon and he has
produced Clinical notes and Xray at Ex.P65 and 66, he has
deposed before this tribunal that the petitioner for disabilities
assessments he has been evaluated as per specified guidelines
SCCH14 43 MVC No.5351 to 5359/19
of the disabilities. Further, he deposed that, disability has been
assessed and the patient has permanent physical
impairment/disability to the whole body is at 9%.
40. During the course of cross examination he stated
that, he has not personally treated the petitioner. Further
contended that, he has not calling the hospital records of
petitioner before examining and assessment. He has not
consulted the treated doctor. Further denied that, petitioner is
not undergone surgery. Implants are removed. The fractures
are united. Further denied that, petitioner is do her work as
earlier she was doing. He has not furnished radiological report
along with Xray of petitioner. Further denied that he has not
strictly followed the medical guidelines for assessment of
disability of the petitioner. Further denied that mobility and
stability components mentioned in his affidavit are not caused
to the petitioner. Further denied that, in order to help the
petitioner to gain more compensation he has given higher rate
of disability. Petitioner is doing coolie work. Further denied
that, the petitioner now also doing coolie work. I am of the view
that, whole body disability of 9% of assessed by him is on
higher side. So, by considering the medical documents and oral
evidence of PW8 if the disability is taken at 6% to the whole
SCCH14 44 MVC No.5351 to 5359/19
body it would be both justifiable and appropriate.
In the case of Kumari Kiran v. Sajjan Singh, (2015) 1
SCC 539 the Hon'ble Supreme Court while considering the
cases of two minors having permanent physical disability due
fractures of lower limb made the following observations,
"With regard to the appellant minors 12. With
respect to compensation towards future loss of
income due to permanent disability for appellant
minors, we refer to Master Mallikarjun v. National
Insurance Co. Ltd. [ Master Mallikarjun v.
National Insurance Co. Ltd., (2014) 14 SCC 396 :
(2015) 1 SCC (Cri) 372 : AIR 2014 SC 736],
wherein this Court held as under: (SCC p. 399,
paras 78) "7. It is unfortunate that both the Tribunal
and the High Court have not properly appreciated
the medical evidence available in the case. The age
of the child and deformities on his body resulting in
disability, have not been duly taken note of. As held
by this Court in R.D. Hattangadi v. Pest Control
(India) (P) Ltd. [R.D. Hattangadi v. Pest Control
(India) (P) Ltd., (1995) 1 SCC 551 : 1995 SCC (Cri)
250], while assessing the non pecuniary damages,
the damages for mental and physical shock, pain
and suffering already suffered and that are likely to
be suffered, any future damages for the loss of
amenities in life, like difficulty in running,
participation in active sports, etc. damages on
account of inconvenience, hardship, discomfort,
disappointment, frustration, etc. have to be
addressed especially in the case of a child victim.
For a child, the best part of his life is yet to come.
While considering the claim by a victim child, it
would be unfair and improper to follow the
structured formula as per the Second Schedule to
SCCH14 45 MVC No.5351 to 5359/19
the Motor Vehicles Act for reasons more than one.
The main stress in the formula is on pecuniary
damages. For children there is no income. The only
indication in the Second Schedule for nonearning
persons is to take the notional income as Rs
15,000/ per year. A child cannot be equated to
such a nonearning person. Therefore, the
compensation is to be worked out under the non
pecuniary heads in addition to the actual amounts
incurred for treatment done and/or to be done,
transportation, assistance of attendant, etc. The
main elements of damage in the case of child victims
are the pain, shock, frustration, deprivation of
ordinary pleasures and enjoyment associated with
healthy and mobile limbs. The compensation
awarded should enable the child to acquire
something or to develop a lifestyle which will offset
to some extent the inconvenience or discomfort
arising out of the disability. The appropriate
compensation for disability should take care of all
the nonpecuniary damages. In other words, apart
from this head, there shall only be the claim for the
actual expenditure for treatment, attendant,
transportation, etc." (emphasis supplied)
The Tribunal has calculated the future loss of
income by taking the notional income of each of the
appellant minors as Rs.15,000 per annum. We are of
the considered view that a child's notional income
cannot be ascertained as per the figure given for
nonearning individuals in the Second Schedule of
the Motor Vehicles Act, 1988. As the Tribunal and
the High Court have not followed the principles laid
down by this Court in the above case by awarding
loss of future income due to permanent disability,
therefore, we set aside the same. Further, reiterating
the same principles as held in Mallikarjun case [
Master Mallikarjun v. National Insurance Co.
Ltd., (2014) 14 SCC 396 : (2015) 1 SCC (Cri) 372 :
SCCH14 46 MVC No.5351 to 5359/19
AIR 2014 SC 736] , we award Rs 1,00,000 each
towards shock, pain and suffering (nonpecuniary
head) in place of loss of future income due to
permanent disability.
Further, in Mallikarjun case [Master Mallikarjun v.
National Insurance Co. Ltd., (2014) 14 SCC 396 :(2015) 1 SCC
(Cri) 372 : AIR 2014 SC 736] with respect to compensation for
permanent disability this Court held thus: (SCC p. 400, para
12)
"12. Though, it is difficult to have an accurate
assessment of the compensation in the case of
children suffering disability on account of a motor
vehicle accident, having regard to the relevant
factors, precedents and the approach of various
High Courts, we are of the view that the appropriate
compensation on all other heads in addition to the
actual expenditure for treatment, attendant, etc.
should be, if the disability is above 10% and up to
30% to the whole body, Rs 3 lakhs; up to 60%, Rs 4
lakhs; up to 90%, Rs 5 lakhs and above 90%, it
should be Rs 6 lakhs. For permanent disability up to
10%, it should be Rs 1 lakh, unless there are
exceptional circumstances to take a different
yardstick."
Hence, this Court in accordance with the principles
laid down by this Court in Master Mallikarjun case
[Mallikarjun v. National Insurance Co. Ltd., (2014)
14 SCC 396 : (2015) 1 SCC (Cri) 372 : AIR 2014 SC
736] , and after examining the facts, evidence on
record and circumstances of the case on hand, we
deem it fit and proper to award Rs.3,00,000 towards
permanent disability of the appellant minors viz.
SCCH14 47 MVC No.5351 to 5359/19
Kumari Kiran and Master Sachin, since they have
suffered 30% and 20% permanent disability
respectively, due to the shortening of their right legs
by one inch after the injuries sustained in the motor
accident. Further, upon considering the age of
appellant minors, they have a long journey ahead of
them in their lives, during which they along with
their parents will have to endure an immeasurable
amount of agony and uncertain medical expenses
due to this motor vehicle accident. Thus, based on
the principles laid down in the above case, we award
Rs 25,000 each towards agony to parents and Rs
25,000 each towards future medical expenses."
In view of the principles laid down in the above decision I
have to award compensation of Rs.1,00,000/ as the disability
of the minor child is up to 10%. Therefore, I am inclined to
award a compensation of Rs.1,00,000/ under the head of
disability.
41. Further in view of the principles laid down in the
above cited decision, I am inclined to award a compensation of
Rs.10,000/ under the head of pain and agony undergone by
the parents.
42. Further, PW3 stated in her evidence that, the
petitioner cannot lift any weights, do any activities in her left
hand, her left hand movements are painful and restricted.
SCCH14 48 MVC No.5351 to 5359/19
Considering all these, I am inclined to award a compensation of
Rs.25,000/under the head of loss of amenities.
Thus, I am of the considered opinion that, the petitioner
is entitled for the compensation under the following heads;
Pain and suffering. : Rs. 25,000/
Food and Nourishment, : Rs. 10,000/
conveyance and attendant
charges.
Medical expenses :
Loss of income during the :
period of treatment.
Loss of Future earnings. :
Loss of amenities : Rs. 25,000/
Loss of future medical :
expenses
Pain & Agony to parents : Rs. 10,000/
Disability Rs.1,00,000/
Total Rs.1,70,000/
Hence, the petitioner is entitled for total compensation of
Rs.1,70,000/ only.
43. Issue No.1 in MVC.5354/2019: In this case, the
petitioner No.1 and 2 are the father and mother of deceased
Nandeesh. In order to prove that they are legal heirs of the
deceased, the PW.4 has produced copy of aadhar card of
deceased and petitioners at Ex.P.25 to 27. On perusal of the
SCCH14 49 MVC No.5351 to 5359/19
same it is clear that, Petitioner No.1 and 2 are the father and
mother of the deceased Nandeesh. So. Petitioner No.1 and 2 are
the legal heirs and dependents of the deceased. Hence, I
answer the Issue No.1 in MVC 5354/2019 in the
affirmative.
44. Issue No.3 in MVC 5354/2019: This issue is relating
to the compensation to be awarded to the petitioners and
liability of the same.
45. According to PW.4, at the time of accident, his son
was aged 2 years. For this, he has produced notarized copy of
adhar card of deceased at Ex.P.25. According to that, date of
birth of the deceased is shown as 07.06.2017 and the accident
took place on 12.06.2019. So, he was aged about 2 years at the
time of accident.
At the out set, it is pertinent to note that petition filed
U/sec.163A, the question to be considered tribunal is the
involvement of the vehicle/s against which the compensation is
sought for and not whether there is rash or negligence on part
of the drivers of the vehicles against which the compensation is
claimed. The aspect of negligence has not rule whatsoever to
decide question of the entitlement for compensation. Section
SCCH14 50 MVC No.5351 to 5359/19
163A of the Act itself lays down that;
"not withstanding anything contained in
this act or in any other law for the time being
in force or instrument having the force of law,
the owner of the motor vehicle or the
authorized insurer shall be liable to pay in
case of death or permanent disablement due
to the accident arising out of use of motor
vehicle, compensation, as indicated in the
second schedule, to the legal heirs or the
victim as the case may be".
In ILR 2008 KAR 1249 rendered in Oriental Insurance Co.
Ltd., Vs Salma and others, Hon'ble High Court of Karnataka is
held that;
" a petition under section 163A of the
act is maintainable even in case where
negligence is on part of the victim."
Hon'ble Apex Court in a decision reported in (2004) 5 SCC
385 rendered in Deepal Girihsbhai Sono and others VS United
India Insurance Co. Ltd., it is held that;
"Section 163A also covers the cases where
negligence is even on part of the victim held
excluding the defense of contributary
SCCH14 51 MVC No.5351 to 5359/19
negligence".
In Civil Appeal No.9694/2013 in between United India
Insurance Co. Ltd Vs Sunil Kumar and another, it is held by the
Hon'ble Supreme Court that;
"in a proceedings under section 163A of
IMV Act it is not open for the insurer to raise any
defence of negligence on part of the victim."
46. On perusal of the said decision it is observed that
section 163A(2) of the Act , does not specifically exclude a
possible defence of the insurer based on negligence of the
deceased/claimant as contemplated by section 140(4) to permit
such defence to be introduced b the insurer and/or to
understand the provisions of section 163(A) of the Act to be
contemplating an such situation would go contrary to the very
legislative object behind introduction of section 163(A) of the
Act, namely, final compensation within a limited time frame on
the basis of the structured formula to over come situations
where the claims of compensation on the basis of fault liability
was taking an unduly long time. For the said reasons, in a
proceeding under section 163A of the At it is not open for the
insurer to raise any defence of negligence on the part of the
victim.
SCCH14 52 MVC No.5351 to 5359/19
47. In the present case, it is already decided that due to
rash and negligence driving of the Eicher vehicle only said
accident was occurred. As per the recent decision of the
Hon'ble Supreme Court of India report in 2018 ACJ we grand of
compensation under section 163A of the Act on the basis of
structured formula is in the nature of the a final award and the
adjudication there under is required to be made without an
requirement of any proof of negligence of the driver/owner of
the vehicle/s involved in the accident and under section 163A
of the Act, it is not open for the insurer to raise any defence of
negligence on the part of the vehicle.
48. In view of above provisions of law and case laws, it is
crystal clear that in a petition filed under section 163A of the
Act, the proof of negligence is not required to be considered by
the tribunal. All that has to be considered by this tribunal is
whether vehicle against which the claim made is involved in the
accident. In this present petition, it is pertinent to note that,
nowhere in the objection statement the respondent No.1 to 4
have denied the involvement of the Eicher vehicle and Auto.
49. I have carefully gone through the evidence placed by
SCCH14 53 MVC No.5351 to 5359/19
PW 2. It is important to note that the present petition is filed
under 163A of M.V. Act. It is also important to note that if a
petition is filed under 163(A) of M.V. Act, seeking award of
compensation due to rash and negligent driving of offending
vehicle by its driver. It is not disputed that the final report was
filed against the both drivers. It is not in dispute that the very
involvement took place between two vehicles. In my view when
once it is admitted that, in the very accident two vehicles were
involved, which itself sufficient to invoke the provisions
U/Sec.163(A) of Motor Vehicle Act.
50. The contentions of the petitioner that deceased
Nandeesh was minor. On perusal of Inquest panchanama and
PM report of deceased Nandeesh was 3 years old child. As
Schedule II of Section 164 of the MV (Amendment) Act,
2019, brought into the statute book by way of an
amendment in the year 2019, the compensation payable in
the case of death due to any road accident arising out of the use
of any motor vehicle is Rs.5,00,000/.
Hence, petitioners are entitled for the compensation of
Rs.5,00,000/ as provided by II Schedule and section 164 of
the Motor Vehicle (Amendment) Act,2019.
SCCH14 54 MVC No.5351 to 5359/19
51. Issue No.1 in MVC 5355/2019: In this case, the
petitioner No.1 is the husband, petitioner No.2 and 3 are the
minor daughter and minor son of the deceased Devamma. In
order to prove that they are legal heirs of the deceased, the
PW.1 has produced Notarized copy of aadhar cards of deceased
and petitioner No.1 to 3 at Ex.P.31 to 33 and ration card at
Ex.P.34. The said documents are discloses that the petitioners
are husband, minor daughter and minor son of the deceased
and they are classI heirs of the deceased. Therefore, petitioner
No.1 to 3 are legal heirs of the deceased. Hence, I answer the
Issue No.1 in the affirmative.
52. Issue No.3 in MVC.5355/2019: This issue relates
to quantum of compensation to be awarded to the petitioner
and liability to pay the same. So, let me consider one by one.
The petitioners have proved the Issue No.1 and the Issue
No.2. Therefore, under these circumstances, petitioners are
being the legal heirs of the deceased Devamma is entitled for
compensation.
53. The contentions of the petitioners that deceased was
a tailor and earning a sum of Rs.20,000/. In this regard the
SCCH14 55 MVC No.5351 to 5359/19
petitioners have not produced any documents. Therefore, only
oral evidence of the PW4, this tribunal has to assess the
income of the deceased by taking into consideration her age,
occupation, place of residence and minimum wages and date of
accident etc. After considering all these aspects, I am inclined
to take notional income of the deceased as Rs.10,000/ p.m.,
54. Petitioner No.1 to 3 are the husband and minor
daughter and son of the deceased. Under these circumstances,
petitioners are dependents on the income of the deceased.
55. As per Ex.P29 and 30 Inquest Panchanama and PM
report the age of the deceased at the time of accident was '35'.
The petitioners have produced aadhar card of deceased at
Ex.P.31. As per aadhar card, the year of birth of the deceased
is shown as 1985. The accident took place on 12.06.2019. As
such, the age of the deceased was 34 years as on the date of the
accident. Therefore, the proper multiplier applicable to the
deceased is '16'.
Besides, so far as adding of future prospects to the income
of deceased is concerned, however, I have relied upon the ruling
SCCH14 56 MVC No.5351 to 5359/19
reported in 2018 ACJ 5(SC) (Hemraj Vs Oriental Insurance
Co., Ltd., & Ors) wherein it is held as under:
"QuantumFatal accident Principles of
assessmentFuture prospectsDeceased aged 40
Upholding objection of insurance company that
principle of addition on account of future
prospects is not applicable where income of the
deceased is determined by guesswork, High court
disallowed the addition of 50 percent made by the
tribunal for future prospects while computing
compensationWhether addition on account of
future prospects is admissible where minimum
income is determined on guesswork prospects is
admissible where minimum income is determined
on guesswork in the absence of proof of income
Held: yes; there cannot be distinction where there
is evidence of income and where minimum
income is determined on guesswork; executing
court directed to recompute entitlement of
claimants by addition 40 percent of income for
future prospects and make corresponding
deduction towards personal expenses."
And also considering recent judgment passed by the Hon'ble
Supreme Court in Civil Special Leave Petition(Civil
No.25590/2014 dated 31102016 (National Insurance
Company Ltd., VS Pranay Sethi and others). Wherein it is
held that, the person who is self employed and her age is below
SCCH14 57 MVC No.5351 to 5359/19
40 years at the time of accident, future prospects has to be
added to the income of the deceased.
56. In this case, the deceased was aged about 34 years as
on the date of accident. Considering the same, if 40% future
prospects is added to the income of the deceased, it would out
at Rs.10,000/+40%=14,000 / per month.
As per Sarala Verma's case, out of the said income, 1/3rd
is required to be deducted towards personal and living
expenses.
Under these circumstances, the petitioners are entitled for
compensation of Rs.17,92,128/ under the head of loss of
dependency. [Rs.14,000/ 1/3=9,334X12X16=
Rs.17,92,128/].
57. Further, so far as awarding compensation under
other conventional heads are concerned, the petitioner has
stated that, they have spent huge amount towards shifting of
dead body and performing of funeral and obsequies ceremony.
In this regard, the Honble Supreme Court judgment passed in
Civil Special Leave Petition(Civil No.25590/2014 dated 31
102016 (National Insurance Company Ltd., VS Pranay Sethi
SCCH14 58 MVC No.5351 to 5359/19
and others). Wherein it is held that, as far as conventional
heads are concerned the petitioners are entitled funeral
expenses of Rs.15,000/ and the petitioner being husband of
the deceased is entitled for compensation of Rs.40,000/ under
the head consortium and petitioner is entitled for compensation
under the head of loss of estate at Rs.15,000/.
58. It is stated in the petition as well as in the evidence of
P.W.4 that, they have spent Rs.50,000/ towards medical
expenses. In order to substantiate the same, the petitioners
have produced 11 medical bills at Ex.P.23 amounting to
Rs.10,030/. Therefore, taking into consideration of the nature
of injuries sustained by the petitioner, this Tribunal is of the
opinion that the petitioner must have incurred expenses
towards medicines and treatment. Hence, I am of the
considered opinion that, the petitioner is entitled for a
compensation of Rs.10,030/ rounded Rs.10,100/ towards
Medical Expenses.
59. Therefore, on all possible heads, the petitioners are
entitled for total compensation of a sum of Rs.18,72,228/. The
headwise of compensation is as under:
1. Loss of dependency Rs.17,92,128/
SCCH14 59 MVC No.5351 to 5359/19
2. Medical expenses Rs. 10,100/
3. Transportation of dead body Rs. 15,000/
and Funeral Expenses
4. Filial consortium Rs. 40,000/
5. Loss of estate Rs. 15,000/
Total Rs.18,72,228/
So, petitioners are entitled for the total compensation of
Rs.18,72,228/ only.
60. Issue No.1 in MVC 5356/2019: In this case, the
petitioner No.1 is the wife and petitioner No.2 is the son of the
deceased Krishnappa Goud. In order to prove that they are
legal heirs of the deceased, the PW.1 has produced Notarized
copy of aadhar cards of deceased and petitioner No.1 and 2 at
Ex.P.37 to 39 and family ration card at Ex.P.40. The said
documents are discloses that the petitioners are wife and son of
the deceased and they are classI heirs of the deceased.
Therefore, petitioner No.1 and 2 are legal heirs of the deceased.
Hence, I answer the Issue No.1 in the affirmative.
61. Issue No.3 in MVC.5356/2019: This issue relates
to quantum of compensation to be awarded to the petitioners
and liability to pay the same. So, let me consider one by one.
SCCH14 60 MVC No.5351 to 5359/19
The petitioners have proved the Issue No.1 and the Issue
No.2. Therefore, under these circumstances, petitioners are
being the legal heirs of the deceased Krishnappa Goud is
entitled for compensation.
62. The contentions of the petitioners that deceased was
a Coolie and earning a sum of Rs.15,000/. In this regard the
petitioners have not produced any documents. Therefore, only
oral evidence of the PW5, this tribunal has to assess the
income of the deceased by taking into consideration his age,
occupation, place of residence and minimum wages and date of
accident etc., After considering all these aspects, I am inclined
to take notional income of the deceased as Rs.10,000/ p.m.,
63. Petitioner No.1 and 2 are the wife and son of the
deceased. Under these circumstances, petitioners are
dependents on the income of the deceased.
64. As per Ex.P35 and 36 Inquest Panchanama and PM
report the age of the deceased at the time of accident was '53'.
The petitioners have produced aadhar card of deceased at
Ex.P.37. As per aadhar card, the year of birth of the deceased
SCCH14 61 MVC No.5351 to 5359/19
is shown as 1951. The accident took place on 12.06.2019. As
such, the age of the deceased was 68 years as on the date of the
accident. Therefore, the proper multiplier applicable to the
deceased is '05'.
Besides, so far as adding of future prospects to the income
of deceased is concerned, the deceased was above age of 68
years and future prospects is not applicable.
28. Further as stated above that, petitioner No.1 is wife
and petitioner No.2 is the son of the deceased are dependents
on the income of the deceased, so, 1/3rd of the income of the
deceased shall be deducted towards his personal and living
expenses. On such deduction, income of the deceased comes to
Rs.10,0001/3) = Rs.6,667/p.m.
29. The income of the deceased is taken as Rs.4,000/
p.m. and the multiplier 05 is applied, then the loss of
dependency comes to Rs.4,00,020/ (Rs.6,667 x 12 x 05).
Considering the above facts, I deem it just and reasonable to
grant compensation of Rs.4,00,020/ under the head of loss
of dependency.
65. Further, so far as awarding compensation under
other conventional heads are concerned, the petitioner has
SCCH14 62 MVC No.5351 to 5359/19
stated that, they have spent huge amount towards shifting of
dead body and performing of funeral and obsequies ceremony.
In this regard, the Honble Supreme Court judgment passed in
Civil Special Leave Petition(Civil No.25590/2014 dated 31
102016 (National Insurance Company Ltd., VS Pranay Sethi
and others). Wherein it is held that, as far as conventional
heads are concerned the petitioners are entitled funeral
expenses of Rs.15,000/ and the petitioner being wife of the
deceased is entitled for compensation of Rs.40,000/ under the
head consortium and both petitioners are entitled for
compensation under the head of loss of estate at Rs.15,000/.
66. Therefore, on all possible heads, the petitioners are
entitled for total compensation of a sum of Rs.4,00,020/. The
headwise of compensation is as under:
1. Loss of dependency Rs.4,00,020/
2. Medical expenses
3. Transportation of dead body Rs. 15,000/
and Funeral Expenses
4. Filial consortium Rs. 40,000/
5. Loss of estate Rs. 15,000/
Total Rs.4,70,020/
So, petitioners are entitled for the total compensation of
Rs.4,70,020/ only.
SCCH14 63 MVC No.5351 to 5359/19
67. Issue No.1 in MVC 5357/2019: In this case, the
petitioner No.1 is the husband and petitioner No.2 is the minor
daughter of the deceased A.Krishnamma. In order to prove that
they are legal heirs of the deceased, the PW.6 has produced
Notarized copy of aadhar cards of deceased and petitioner No.1
and 2 at Ex.P.44 to 46 and ration card at Ex.P.47. The said
documents are discloses that the petitioners are husband and
minor daughter of the deceased and they are classI heirs of the
deceased. Therefore, petitioner No.1 and 2 are legal heirs of the
deceased. Hence, I answer the Issue No.1 in the affirmative.
68. Issue No.3 in MVC.5357/2019: This issue relates
to quantum of compensation to be awarded to the petitioner
and liability to pay the same. So, let me consider one by one.
The petitioners have proved the Issue No.1 and the Issue
No.2. Therefore, under these circumstances, petitioners are
being the legal heirs of the deceased Krishnamma is entitled for
compensation.
69. The contentions of the petitioners that deceased was
a Coolie and earning a sum of Rs.15,000/. In this regard the
petitioners have not produced any documents. Therefore, only
SCCH14 64 MVC No.5351 to 5359/19
oral evidence of the PW6, this tribunal has to assess the
income of the deceased by taking into consideration her age,
occupation, place of residence and minimum wages and date of
accident etc. After considering all these aspects, I am inclined
to take notional income of the deceased as Rs.10,000/ p.m.,
70. Petitioner No.1 and 2 are the husband and minor
daughter of the deceased. Under these circumstances,
petitioners are dependents on the income of the deceased.
71. As per Ex.P41 and 42 Inquest Panchanama and PM
report the age of the deceased at the time of accident was '40'.
The petitioners have produced aadhar card of deceased at
Ex.P.31. As per aadhar card, the year of birth of the deceased
is shown as 1984. The accident took place on 12.06.2019. As
such, the age of the deceased was 35 years as on the date of the
accident. Therefore, the proper multiplier applicable to the
deceased is '16'.
Besides, so far as adding of future prospects to the income
of deceased is concerned, however, I have relied upon the ruling
reported in 2018 ACJ 5(SC) (Hemraj Vs Oriental Insurance
Co., Ltd., & Ors) wherein it is held as under:
SCCH14 65 MVC No.5351 to 5359/19
"QuantumFatal accident Principles of
assessmentFuture prospectsDeceased aged 40
Upholding objection of insurance company that
principle of addition on account of future
prospects is not applicable where income of the
deceased is determined by guesswork, High court
disallowed the addition of 50 percent made by the
tribunal for future prospects while computing
compensationWhether addition on account of
future prospects is admissible where minimum
income is determined on guesswork prospects is
admissible where minimum income is determined
on guesswork in the absence of proof of income
Held: yes; there cannot be distinction where there
is evidence of income and where minimum
income is determined on guesswork; executing
court directed to recompute entitlement of
claimants by addition 40 percent of income for
future prospects and make corresponding
deduction towards personal expenses."
And also considering recent judgment passed by the Hon'ble
Supreme Court in Civil Special Leave Petition(Civil
No.25590/2014 dated 31102016 (National Insurance
Company Ltd., VS Pranay Sethi and others). Wherein it is
held that, the person who is self employed and her age is below
40 years at the time of accident, future prospects has to be
added to the income of the deceased.
SCCH14 66 MVC No.5351 to 5359/19
72. In this case, the deceased was aged about 35 years as
on the date of accident. Considering the same, if 40% future
prospects is added to the income of the deceased, it would out
at Rs.10,000/+40%=14,000 / per month.
As per Sarala Verma's case, out of the said income, 1/3rd
is required to be deducted towards personal and living
expenses.
Under these circumstances, the petitioners are entitled for
compensation of Rs.17,92,128/ under the head of loss of
dependency. [Rs.14,000/ 1/3=9,334 X 12 X 16=
Rs.17,92,128/].
73. Further, so far as awarding compensation under
other conventional heads are concerned, the petitioner has
stated that, they have spent huge amount towards shifting of
dead body and performing of funeral and obsequies ceremony.
In this regard, the Honble Supreme Court judgment passed in
Civil Special Leave Petition(Civil No.25590/2014 dated 31
102016 (National Insurance Company Ltd., VS Pranay Sethi
and others). Wherein it is held that, as far as conventional
heads are concerned the petitioners are entitled funeral
expenses of Rs.15,000/ and the petitioner being husband of
SCCH14 67 MVC No.5351 to 5359/19
the deceased is entitled for compensation of Rs.40,000/ under
the head consortium and petitioners are entitled for
compensation under the head of loss of estate at Rs.15,000/.
74. Therefore, on all possible heads, the petitioners are
entitled for total compensation of a sum of Rs.18,62,128/. The
headwise of compensation is as under:
1. Loss of dependency Rs.17,92,128/
2. Medical expenses
3. Transportation of dead body Rs. 15,000/
and Funeral Expenses
4. Filial consortium Rs. 40,000/
5. Loss of estate Rs. 15,000/
Total Rs.18,62,128/
So, petitioners are entitled for the total compensation of
Rs.18,62,128/ only.
75. Issue No.2 in MVC.5358/2019: This issue relates to
quantum of compensation to be awarded to the petitioner and
liability to pay the same. So, let me consider one by one.
The petitioner has sustained injuries in the said accident.
she has relied upon Ex.P.48 wound certificate issued by Andhra
Pradesh Vaidya Vidhana Parishad and Ex.P.49 discharge
SCCH14 68 MVC No.5351 to 5359/19
summary, wherein it appears that, petitioner was sustained
following injuries i.e., deformity and diffuse contusion of middle
third of right forearm movement painful. According to wound
certificate said injury is grievous in nature. In view of the
findings recorded on issue No.1, the petitioner has suffered
injuries because of the actionable negligence on the part of the
driver of offending vehicle. Hence, the petitioner is entitled for
the compensation.
76. It is the case of the petitioner that, after the accident
she was shifted to government hospital and then shifted to Sai
Sudha hospital, Tirupathi, wherein she admitted on 18.06.2019
and discharged on 25.06.2018, hence she admitted for a period
of more than 8 days. During this period the she taken
conservative treatment discharged with advise for followup
treatment. I am of the considered opinion that the petitioner has
suffered severely due to the accidental injuries. Hence, the
petitioner is entitled for compensation of a sum of Rs.25,000/
towards Pain and sufferings.
77. Further, it can be said that the petitioner must have
incurred some amount for transportation and also spent some
amount towards attendant charges, food and nourishment.
SCCH14 69 MVC No.5351 to 5359/19
Since, the petitioner has taken treatment as an inpatient in the
hospital. Thus, I deem it just and proper to award Rs.10,000/
towards Attendant, food, conveyance and other incidental
expenses.
78. It is stated in the petition as well as in the evidence of
P.W.7 that, she has spent Rs.50,000/ towards medical
expenses. In order to substantiate the same, the petitioner has
produced 5 medical bills at Ex.P.62 amounting to Rs.1,269/.
Therefore, taking into consideration of the nature of injuries
sustained by the petitioner, this Tribunal is of the opinion that
the petitioner must have incurred expenses towards medicines
and treatment. Hence, I am of the considered opinion that, the
petitioner is entitled for a compensation of Rs.1,269/ rounded
Rs.1,300/ towards Medical Expenses.
79. The case of the petitioner is that, at the time of
accident she was healthy and was doing agriculture/Coolie and
was earning Rs.15,000/ per month. In this regard she has not
produced any documents to show that her income was
Rs.15,000/ per month. In the absence of material evidence
and taking into consideration of the age of the petitioner, date of
SCCH14 70 MVC No.5351 to 5359/19
accident and her avocation and present day condition, if the
monthly income of the petitioner is inferred at Rs.10,000/
p.m., that would meet the ends of justice. The nature of
injuries requires followup treatment. Taking all these facts into
consideration, I am of the considered opinion that the petitioner
could not attend to her avocation i.e., during the period of
treatment and rest. Hence, the compensation of Rs.10,000/ is
awarded towards Loss of income during the period of
treatment.
80. It is the evidence of PW.7 that, due to the injuries
sustained in the accident, she is suffering from permanent
disability due to fractures. The petitioner has examined
Dr.Nagaraj.B.N. Orthopaedic Surgeon at SOADS and he has
produced Clinical notes and Xray at Ex.P67 to 68, he has
deposed before this tribunal that the petitioner has fixed flexion.
Further, he deposed that, disability has been assessed and the
patient has whole body disability at 18%.
81. During the course of cross examination he stated
that, he has not personally treated the petitioner. Further
contended that, he has not calling the hospital records of all
petitioner before examining and assessment. He has not
SCCH14 71 MVC No.5351 to 5359/19
consulted the treated doctor. Further denied that, petitioner is
not undergone surgery. Implants are removed. The fractures
are united. Further denied that, petitioner is do her work as
earlier she was doing. He has not furnished radiological report
along with Xray of petitioner. Further denied that he has not
strictly followed the medical guidelines for assessment of
disability of the petitioner. Further denied that mobility and
stability components mentioned in his affidavit are not caused
to the petitioner. Further denied that, in order to help the
petitioner to gain more compensation he has given higher rate
of disability. Petitioner is doing coolie work. Further denied
that, the petitioner now also doing coolie work. I am of the view
that, permanent physical disability of right arm at 31% and left
arm at 23% of assessed by him is on higher side. So, by
considering the medical documents and oral evidence of PW8 if
the disability is taken at 12% to the whole body it would be
both justifiable and appropriate.
82. As per police records and hospital records, her age
was 38 years at the time of accident. In this regard petitioner
has produced aadhar card at Ex.P.8 date of birth of the
petitioner is mentioned as 01.01.1981. As such, the age of the
petitioner was 38 years as on the date of the accident.
SCCH14 72 MVC No.5351 to 5359/19
Therefore, the proper multiplier applicable to the petitioner is
'15'. Thus, the petitioner is entitled for a compensation of
Rs.10,000x12x15x12%=Rs.2,16,000/ towards Loss of Future
Earnings.
83. PW.8 stated that, in his evidence that he recommended
for another surgery for removal of implants. The estimated cost
of the same, Rs.60,000/. But he has not produced any
estimation of cost nor invoice. Hence, by considering the
injuries sustained by the petitioner and treatment taken for the
said injuries this tribunal opined that, the petitioner is entitled
for compensation of Rs.10,000/ for future medical expenses
and this amount does not carry any future interest.
84. On considering the medical records and considering
overall evidence I am of the view that petitioner has loss of
amenities in her life, hence petitioner is entitled for
compensation of Rs.25,000/ towards loss of amenities.
Thus, I am of the considered opinion that, the petitioner is
entitled for the compensation under the following heads;
1. Pain and suffering. : Rs. 25,000/
2. Food and Nourishment, : Rs. 10,000/
conveyance and
SCCH14 73 MVC No.5351 to 5359/19
attendant charges.
3. Medical expenses : Rs. 1,300/
4. Loss of income during the : Rs. 10,000/
period of treatment.
5. Loss of Future earnings. : Rs.2,16,000/
6. Loss of amenities Rs. 25,000/
7. Future Medical expenses. : Rs. 10,000/
Total Rs.2,97,300/
So, the petitioner is entitled for the total compensation of
Rs.2,97,300/ only.
85. Issue No.1 in MVC 5359/2019: In this case, the
petitioner No.1 is the wife and petitioner No.2, 3 & 4 are the
minor son and daughters of the deceased Srinivasulu. In order
to prove that they are legal heirs of the deceased, the PW.7 has
produced Notarized copy of aadhar cards of deceased and
petitioner No.1 to 4 at Ex.P.52 to 56. The said documents are
discloses that the petitioners are wife and minor son and
daughters of the deceased and they are classI heirs of the
deceased. Therefore, petitioner No.1 to 4 are legal heirs of the
deceased. Hence, I answer the Issue No.1 in the affirmative.
86. Issue No.3 in MVC.5359/2019: This issue relates
to quantum of compensation to be awarded to the petitioner
SCCH14 74 MVC No.5351 to 5359/19
and liability to pay the same. So, let me consider one by one.
The petitioners have proved the Issue No.1 and the Issue
No.2. Therefore, under these circumstances, petitioners are
being the legal heirs of the deceased Srinivasulu is entitled for
compensation.
87. The contentions of the petitioners that deceased was
a Agriculturist and earning a sum of Rs.20,000/. In this regard
the petitioners have not produced any documents. Therefore,
only oral evidence of the PW7, this tribunal has to assess the
income of the deceased by taking into consideration his age,
occupation, place of residence and minimum wages and date of
accident etc. After considering all these aspects, I am inclined
to take notional income of the deceased as Rs.10,000/ p.m.,
88. Petitioner No.1 to 4 are the wife and minor son and
daughters of the deceased. Under these circumstances,
petitioners are dependents on the income of the deceased.
89. As per Ex.P50 and 51 Inquest Panchanama and PM
report the age of the deceased at the time of accident was '37'.
The petitioners have produced aadhar card of deceased at
SCCH14 75 MVC No.5351 to 5359/19
Ex.P.52. As per aadhar card, the date of birth of the deceased
is shown as 01.01.1982. The accident took place on
12.06.2019. As such, the age of the deceased was 37 years as
on the date of the accident. Therefore, the proper multiplier
applicable to the deceased is '15'.
Besides, so far as adding of future prospects to the income
of deceased is concerned, however, I have relied upon the ruling
reported in 2018 ACJ 5(SC) (Hemraj Vs Oriental Insurance
Co., Ltd., & Ors) wherein it is held as under:
"QuantumFatal accident Principles of
assessmentFuture prospectsDeceased aged 40
Upholding objection of insurance company that
principle of addition on account of future
prospects is not applicable where income of the
deceased is determined by guesswork, High court
disallowed the addition of 50 percent made by the
tribunal for future prospects while computing
compensationWhether addition on account of
future prospects is admissible where minimum
income is determined on guesswork prospects is
admissible where minimum income is determined
on guesswork in the absence of proof of income
Held: yes; there cannot be distinction where there
is evidence of income and where minimum
income is determined on guesswork; executing
court directed to recompute entitlement of
claimants by addition 40 percent of income for
SCCH14 76 MVC No.5351 to 5359/19
future prospects and make corresponding
deduction towards personal expenses."
And also considering recent judgment passed by the Hon'ble
Supreme Court in Civil Special Leave Petition(Civil
No.25590/2014 dated 31102016 (National Insurance
Company Ltd., VS Pranay Sethi and others). Wherein it is
held that, the person who is self employed and her age is below
40 years at the time of accident, future prospects has to be
added to the income of the deceased.
90. In this case, the deceased was aged about 37 years as
on the date of accident. Considering the same, if 40% future
prospects is added to the income of the deceased, it would out
at Rs.10,000/+40%=10,500/ per month.
As per Sarala Verma's case, out of the said income, 1/4th
is required to be deducted towards personal and living
expenses.
Under these circumstances, the petitioners are entitled for
compensation of Rs.18,90,000/ under the head of loss of
dependency. [Rs.14,000/ 1/4=Rs.10,500X 12 X 15=
Rs.18,90,000/].
SCCH14 77 MVC No.5351 to 5359/19
91. Further, so far as awarding compensation under
other conventional heads are concerned, the petitioner has
stated that, they have spent huge amount towards shifting of
dead body and performing of funeral and obsequies ceremony.
In this regard, the Honble Supreme Court judgment passed in
Civil Special Leave Petition(Civil No.25590/2014 dated 31
102016 (National Insurance Company Ltd., VS Pranay Sethi
and others). Wherein it is held that, as far as conventional
heads are concerned the petitioners are entitled funeral
expenses of Rs.15,000/ and the petitioner being wife of the
deceased is entitled for compensation of Rs.40,000/ under the
head consortium and petitioners are entitled for compensation
under the head of loss of estate at Rs.15,000/.
92. Therefore, on all possible heads, the petitioners are
entitled for total compensation of a sum of Rs.19,60,000/. The
headwise of compensation is as under:
1. Loss of dependency Rs.18,90,000/
2. Medical expenses
3. Transportation of dead body Rs. 15,000/
and Funeral Expenses
4. Filial consortium Rs. 40,000/
5. Loss of estate Rs. 15,000/
SCCH14 78 MVC No.5351 to 5359/19
Total Rs.19,60,000/
So, petitioners are entitled for the total compensation of
Rs.19,60,000/ only.
93. Liability: In this case, admittedly the respondent
No.1 is the owner and respondent No.2 is the insurer of the
Eicher Goods vehicle bearing Reg.No.AP39T5200. It is already
discussed in Issue No.1 that, due to the rash and negligence
driving of the driver of the Eicher vehicle only said accident was
occurred. It is admitted about issuance of insurance policy in
respect of the offending vehicle in favour of the respondent
No.1.
The respondent No. 2 has taken up several contentions, as
discussed in above issues and respondent No.2 has failed to
prove his contentions.
94. Admittedly the respondent No.1 being owner and
respondent No.2 being the insurer of the offending vehicle and
according to respondent No.2 the policy was in force as on the
date of accident. Hence, the respondent No.1 and 2 are jointly
and severally liable to pay compensation to the petitioner.
SCCH14 79 MVC No.5351 to 5359/19
Hence, respondent No.2 has to indemnify the respondent No.1
and compensate the petitioner.
By considering the present days FD rate of interest in the
nationalized bank it is just and necessary to direct the
respondent No.2 to pay the compensation amount with interest
at the rate of 7% p.a., from the date of petition till the date of
payment. Accordingly, I answered Issue No.2 Partly in the
Affirmative.
95. Issue No.3 in MVC No.5351/2019, 5353/2019,
5358/2019 & Issue No.4 in MVC No.5352/2019,
5354/2019, 5355/2019, 5356/2019, 5357/2019 &
5359/2019: In view of above discussion and findings, I
proceed to pass the following:
ORDER
All petitions filed by the petitioners under Sec.166 and 163A of Motor Vehicles Act are hereby partly allowed with costs. The petitioner in MVC No.5351/2019 is awarded with compensation of Rs.3,82,400/ with interest @ 7% p.a. from the date of petition till its realization. Out of the share amount awarded to petitioner, 40% shall be deposited as F.D. in her name in any nationalized or schedule bank SCCH14 80 MVC No.5351 to 5359/19 for a period of three years and the remaining 60% balance amount with accrued interest shall be released to the petitioner through RTGS/NEFT by way of Epayment.
The petitioner in MVC No.5352/2019 is awarded with compensation of Rs.5,00,000/ with interest @ 7% p.a. from the date of petition till its realization. Out of the share amount awarded to petitioner, 50% shall be deposited as F.D. in her name in any nationalized or schedule bank for a period of three years and the remaining 50% balance amount with accrued interest shall be released to the petitioner through RTGS/NEFT by way of Epayment.
The petitioner in MVC No.5353/2019 is awarded with compensation of Rs.1,70,000/ with interest @ 7% p.a. from the date of petition till its realization.
Entire compensation amount awarded to petitioner shall be deposited as F.D. in her name in any nationalized or schedule bank until she attain age of majority.
The petitioners in MVC No.5354/2019 is awarded with compensation of Rs.5,00,000/ with interest @ 7% p.a. from the date of petition till its realization.
After deposit of compensation amount, 50% each share is apportioned in favour of SCCH14 81 MVC No.5351 to 5359/19 petitioner No.1 and 2. Out of the share amount awarded to petitioner No.1 and 2 entire share amount with accrued interest shall be released to the petitioner No.1 and 2 through RTGS/NEFT by way of Epayment.
The petitioners in MVC No.5355/2019 is awarded with compensation of Rs.18,72,228/ with interest @ 7% p.a. from the date of petition till its realization.
After deposit of compensation amount, 40% share is apportioned in favour of petitioner No.1 and 30% each share is apportioned to petitioner No.2 and 3.
Out of the share amount awarded to petitioner No.1, 50% shall be deposited as F.D. in his name in any nationalized or schedule bank for a period of three years and the remaining 50% balance amount with accrued interest shall be released to the petitioner No.1 through RTGS/NEFT by way of Epayment.
Out of the share amount awarded to petitioner No.2 and 3, entire compensation amount awarded to petitioner No.2 and 3 shall be deposited as F.D. in their respective names in any nationalized or schedule bank until they attain age of majority.
The petitioners in MVC No.5356/2019 is awarded with compensation of Rs.4,70,020/ with interest @ 7% p.a. from the date of petition till its realization. SCCH14 82 MVC No.5351 to 5359/19 After deposit of compensation amount, 80% share is apportioned in favour of petitioner No.1 and 20% share is apportioned to petitioner No.2.
Out of the share amount awarded to petitioner No.1, 50% shall be deposited as F.D. in her name in any nationalized or schedule bank for a period of three years and the remaining 50% balance amount and share of petitioner No.2 with accrued interest shall be released to the petitioner No.1 and 2 respectively through RTGS/NEFT by way of E payment.
The petitioners in MVC No.5357/2019 is awarded with compensation of Rs.18,62,128/ with interest @ 7% p.a. from the date of petition till its realization.
After deposit of compensation amount, 50% share is apportioned in favour of petitioner No.1 and 50% share is apportioned to petitioner No.2.
Out of the share amount awarded to petitioner No.1, 50% shall be deposited as F.D. in his name in any nationalized or schedule bank for a period of three years and the remaining 50% balance amount with accrued interest shall be released to the petitioner No.1 through RTGS/NEFT by way of Epayment.
Out of the share amount awarded to petitioner No.2, entire compensation amount SCCH14 83 MVC No.5351 to 5359/19 awarded to petitioner No.2 shall be deposited as F.D. in her name in any nationalized or schedule bank until she attain age of majority.
The petitioners in MVC No.5358/2019 is awarded with compensation of Rs.19,60,000/ with interest @ 7% p.a. from the date of petition till its realization.
After deposit of compensation amount, 40% share is apportioned in favour of petitioner No.1 and 20% each share is apportioned to petitioner No.2 to 4.
Out of the share amount awarded to petitioner No.1, 50% shall be deposited as F.D. in her name in any nationalized or schedule bank for a period of three years and the remaining 50% balance amount with accrued interest shall be released to the petitioner No.1 through RTGS/NEFT by way of Epayment.
Out of the share amount awarded to petitioner No.2 to 4, entire compensation amount awarded to petitioner No.2 to 4 shall be deposited as F.D. in their respective names in any nationalized or schedule bank until they attain age of majority.
The petitioner in MVC No.5359/2019 is awarded with compensation of Rs.2,97,300/ with interest @ 7% p.a. from the date of petition till its realization.
Out of the share amount awarded to SCCH14 84 MVC No.5351 to 5359/19 petitioner, 30% shall be deposited as F.D. in her name in any nationalized or schedule bank for a period of three years and the remaining balance amount with accrued interest shall be released to the petitioner through RTGS/NEFT by way of Epayment.
The respondent No.1 and 2 are jointly and severally liable to pay compensation to the petitioner with interest. The respondent No.2 being insurer is liable to deposit the amount before Tribunal within two months from the date of this order.
The claim petition against respondent No.3 and 4 is here by dismissed.
The original judgment of this case shall be kept in MVC No.5351/2019 and copy of the same shall be kept in MVC No.5352/2019, 5353/2019, 5354/2019, 5355/2019, 5356/2019, 5357/2019, 5358/2019 and 5359/2019.
Advocate's fee is fixed at Rs.2,000/ each in all cases.
Draw award accordingly.
(Dictated to the Stenographer, and transcription of the same was corrected by me and pronounced in the open court, on this the 19th day of April 2022).
(PARVEEN A. BANKAPUR) XVI ADDL.JUDGE SCCH14 85 MVC No.5351 to 5359/19 Court of Small Causes & MACT., Bengaluru.
ANNEXURES List of witnesses examined for petitioner:
PW.1 : P.Padmamma PW.2 : J.Parvthamma PW.3 : M.Kumari PW.4 : K.Subramanyam PW.5 : K.Narayanamma PW.6 : A.Ramanappa PW.7 : P.Amaravathi PW.8 : Dr.Nagaraj.B.N.
List of documents marked for petitioner:
Ex.P.1 : Copy of FIR Ex.P.2 : Copy of complaint Ex.P.2(a) Its Kannada translation copy Ex.P.3 : Copy of sketch map of accident spot Ex.P.3(a) Its translation copy Ex.P.4 : Copy of IMV report Ex.P.5 : Copy of charge sheet Ex.P.6 : Copy of wound certificate Ex.P.7 : Discharge summary Ex.P.8 : Notarized copy of aadhar card Ex.P.9 : Copy of inquest mahazar Ex.P.9(a) Its kannada translation Ex.P.10 : Copy of PM report SCCH14 86 MVC No.5351 to 5359/19 Ex.P.11 : Notarized copy of aadhar card Ex.P.12 : Notarized copy of aadhar card Ex.P.13 : Notarized copy of family ration card Ex.P.14 : Copy of wound certificate Ex.P.15 : Discharge summary Ex.P.16 : Notarized copy of aadhar card Ex.P.17 : Notarized copy of aadhar card Ex.P.18 : Notarized copy of family ration card Ex.P.19 : Copy of intimation from hospital Ex.P.20 : Copy of MLC Ex.P.21 : Copy of inquest mahazar Ex.P.21(a) Its kannada translation Ex.P.22 : Copy of PM report Ex.P.23 : Medical bills Ex.P.24 : Prescription Ex.P.25 : Notarized copy of aadhar card Ex.P.26 : Notarized copy of aadhar card Ex.P.27 : Notarized copy of aadhar card Ex.P.28 : Notarized copy of disability certificate Ex.P.29 : Copy of inquest mahazar Ex.P.29(a) its Kannada translation copy Ex.P.30 : Copy of PM report Ex.P.31 Notarized copy of aadhar card Ex.P.32 Notarized copy of aadhar card Ex.P.33 Notarized copy of aadhar card SCCH14 87 MVC No.5351 to 5359/19 Ex.P.34 Notarized copy of family ration card Ex.P.35 Copy of inquest mahazar
Ex.P.35(a) its Kannada translation copy Ex.P.36 Copy of PM report Ex.P.37 Notarized copy of aadhar card Ex.P.38 Notarized copy of aadhar card Ex.P.39 Notarized copy of aadhar card Ex.P.40 Notarized copy of family ration card Ex.P.41 Copy of inquest mahazar Ex.P.41(a) its Kannada translation copy Ex.P.42 Copy of PM report Ex.P.43 Death certificate Ex.P.44 Notarized copy of aadhar card Ex.P.45 Notarized copy of aadhar card Ex.P.46 Notarized copy of aadhar card Ex.P.47 Notarized copy of family ration card Ex.P.48 Wound certificate Ex.P.49 Discharge summary Ex.P.50 Copy of inquest mahazar Ex.P.50(a) its Kannada translation copy Ex.P.51 Copy of PM report Ex.P.52 Notarized copy of aadhar card Ex.P.53 Notarized copy of aadhar card Ex.P.54 Notarized copy of aadhar card Ex.P.55 Notarized copy of aadhar card SCCH14 88 MVC No.5351 to 5359/19 Ex.P.56 Notarized copy of aadhar card Ex.P.57 Handicap certificate Ex.P.58 Death summary Ex.P.59 Hospital bill Ex.P.60 Death summary Ex.P.61 OPD card Ex.P.62 Medical bills Ex.P.63 Clinical notes Ex.P.64 Xray Ex.P.65 Clinical notes Ex.P.66 Xray Ex.P.67 Clinical notes Ex.P.68 Xray List of witnesses & documents for respondent:
RW.1 : Ashwini J RW.2 : Bikram Singh Rana
List of witnesses & documents for respondent:
Ex.R.1 : Authorization letter Ex.R.2 : Download copy of policy Ex.R.3 : Download copy of registration certificate Ex.R.4 : Certified copy of memo Ex.R.5 : Certificate U/s 65B of Evidence Act XVI ADDL.JUDGE Court of Small Causes & MACT., Bengaluru.