Bangalore District Court
Prathibha Ganganalli vs Narayan on 11 November, 2024
SCCH-2 MVC. 3537/2023
KABC020160622023
IN THE COURT OF THE VI ADDL. JUDGE, COURT OF SMALL
CAUSES AND ADDL. CHIEF JUDICIAL MAGISTRATE AND
MACT, BENGALURU. (SCCH-2).
M.V.C.3537/2023
Present : Sri. H.P. Mohan Kumar, B.Sc.,LL.B.,
VIth Addl. Judge, Court of Small
Causes and ACJM and MACT,
Bengaluru.
Dated on this 11th day of November, 2024.
Petitioners 1. Smt. Prathibha Ganganalli
W/o Late Nagappa Ganganalli,
Aged about 32 years.
2. Raju Ganganalli
S/o Late Nagappa Ganganalli,
Aged about 2 months.
Since minor represented by
his natural guardian and mother
Smt. Prathiba Ganganalli.
3. Sri Sidaraya Ganganalli
S/o Gurappa,
Aged about 67 years.
4. Smt. Kasheebai Ganganalli
W/o Siddaraya Ganganalli,
Aged about 57 years.
All are residing at
Tamba Village,
SCCH-2 2 M.V.C. 3537/2023
Indi Taluk,
Vijayapura district.
(By Sri. Nanda Kumar H J., Advocate)
-VERSUS-
Respondents 1. Sri Narayan
S/o Lakshman,
No. E 162, Ashrama Road,
Gerupalya, Kumbalagodu,
Chikkannagappa Maneya road,
Bengaluru.
(R.C. Owner of TATA Goods vehicle
bearing Reg.No.KA-46-4427)
(Ex-Parte)
2. The Manager
HDFC Ergo General Insurance Co. Ltd.,
2nd floor, No.25/1,
Building No.2,
Shankaranarayana building,
M G road,
Bengaluru 560 001.
(Insurer of TATA Goods Vehicle bearing
Regn No. KA-46-4427
(Policy No. 231520491127680000
Valid from 23-09-2022 to 22-09-2023)
(By Sri. A N Hegde, Advocate)
SCCH-2 3 M.V.C. 3537/2023
:: J U D G M E N T ::
Petitioners have filed Claim Petition U/Sec.166 of M.V. Act claiming compensation of Rs.1,00,00,000/- for the death of Nagappa Ganganalli., in the road traffic accident.
2. The brief facts of the petition are as under:
On 04-05-2023 at about 12.15 a.m. i.e., mid night, Nagappa Ganganalli was proceeding in his TVS Jupiter Scooter bearing Reg.No.KA-41-EL-6514 on Nagarabhavi Outer ring road, near Shreshta Wellness Centre towards Laggere, at that time the driver of TATA Goods vehicle bearing Reg.No.KA-46-4427 has parked the said vehicle on the middle of the road without any indicator as such the deceased's vehicle touched the said TATA Goods vehicle and caused the accident. As a result, Nagappa Ganganalli sustained grievous injuries and succumbed to the injuries on the spot. Thereafter, postmortem was conducted at Victoria hospital, Bengaluru, handed over the body to the petitioners and the petitioners have performed funeral and obsequies ceremonies by spending an amount of Rs.2,00,000/-. 1St petitioner being the wife of deceased has lost her husband, petitioner No. 2 being the minor son has lost love and affection of his father and petitioner Nos.3 and 4 being the parents of SCCH-2 4 M.V.C. 3537/2023 deceased have lost the love and affection of their son. Prior to the accident, the deceased was aged about 31 years, working as a delivery boy at Swiggy and thereby earning Rs.30,000/- per month and contributing his entire earning to the maintenance of his family members. Due to death of deceased, the petitioners have lost the earning member of the family.
The accident in question was occurred due to negligent act of driver of TATA Goods vehicle bearing Reg.No.KA-46-4427. The Kamakshipalya traffic police have registered the case against the driver of aforesaid vehicle in Cr.No.117/2023 for the offence punishable U/Sec.279 and 304A of IPC. The 1st respondent is the RC owner of aforesaid vehicle and the 2 nd respondent is the insurer and insurance policy was valid at the time of accident. Hence, both the respondents are jointly and severally liable to pay compensation to the petitioners. With these averments petitioners prays to allow the petition.
3. In response to the notice issued by the Tribunal, the 1st respondent remained absent, hence he has been placed Ex- parte. The 2nd respondent appeared through its counsel and filed written statement.
SCCH-2 5 M.V.C. 3537/2023
4. The written statement averments of the 2 nd respondent/Insurance company are as hereunder:
This respondent has admitted the issuance of insurance policy and its validity with respect to vehicle bearing Reg.No.KA- 46-4427 and contended that, the liability if any is subject to terms and conditions of the policy. Further, the compensation amount claimed by the petitioners is highly exorbitant and without any basis. The owner of the vehicle has not complied all the provisions of Sec.134(c) and 158 of MV Act. Further this respondent has denied the cause and manner of accident and contended that, the deceased ridden his TVS Jupiter vehicle in a rash and negligent manner without wearing helmet and without possessing valid DL at the time of accident and only due to his sole negligence accident was caused and he succumbed to the injuries on the spot. Further the driver of the offending TATA Goods vehicle was not having valid DL and permit at the time of accident. Further has denied the dependency of the petitioners on the deceased, age, occupation and income of the deceased. With these averments, the 2nd respondent has prayed to dismiss the petition.SCCH-2 6 M.V.C. 3537/2023
5. On the basis of above pleadings, this Tribunal has framed the following:
:ISSUES:
1. Whether petitioners prove that, Nagappa Ganganalli was died in the accident occurred on 04-05-2023 at 00.15 a.m. near Shreshta Wellness Centre, Nagarabhavi Outer Ring Road, Bengaluru due to parking of Tata Goods vehicle bearing Reg.No.KA-46-4427 by its driver without signal or indicator as stated in the petition?
2. Whether the respondent No.2 proves the contributory negligence on the part of deceased?
3. Whether the petitioners prove the age and income of deceased?
4. Whether the petitioners are entitled for the compensation? Is so, how much and from whom?
5. What order or award?
6. In order to prove the case of petitioners, Petitioner No.4 was examined as P.W.1 and marked documents at Ex.P.1 to Ex.P.14. Petitioners have also examined one Siddappa SCCH-2 7 M.V.C. 3537/2023 Sharanappa Devura, who has lodged first information to the police as PW.2 and he has produced the document marked at Ex.P15. Learned counsel for Respondent No.2 has cross-
examined both P.W.1 & P.W.2. Per-contra, respondent No.2 has examined its legal manager as R.W.1 and marked Ex.R.1. Learned counsel for the petitioners has cross-examined R.W.1.
7. Heard the arguments of petitioners. No arguments addressed from the side of 2nd respondent. Perused the materials placed on record. The findings of the Tribunal to the above referred issues are as here under:
Issue No.1 :- In the Affirmative.
Issue No.2 :- In the Affirmative.
Issue No.3 :- In the Partly Affirmative.
Issue No.4 :- In the Partly Affirmative.
Issue No.5 :- As per the final order for the following:
:REASONS:
8. ISSUE Nos.1 and 2:- These issues are inter connected. Hence, they have taken together for common discussion in order to avoid repetition.
SCCH-2 8 M.V.C. 3537/2023
9. It is the case of the petitioners that, on 04-05-2023 at about 12.15 a.m., Nagappa Ganganalli was proceeding in his TVS Jupiter Scooter bearing Reg.No.KA-41-EL-6514 on Nagarabhavi Outer ring road, near Shreshta Wellness Centre towards Laggere, at that time the driver of TATA Goods vehicle bearing Reg.No.KA- 46-4427 has parked the said vehicle at the middle of the road without any indicator as such the deceased's vehicle touched the said TATA Goods vehicle and caused the accident. As a result, Nagappa Ganganalli sustained grievous injuries and succumbed to the injuries on the spot.
10. In order to prove the claim of petitioners, the petitioner No.4 was examined as P.W.1 by filing affidavit. P.W.1 also produced as many as 14 documents, which have been marked as Ex.P.1 to Ex.P.14.
Ex.P.Series Ex.P.1 is the true copy of FIR pertaining to Cr.No.117/2023. Ex.P.2 is the true copy of complaint. Ex.P.3 is the true copy of Spot Mahazar. Ex.P.4 is the true copy of Spot Sketch. Ex.P.5 is the true copy of M.V.A. Report. Ex.P.6 is the true copy of inquest report. Ex.P.7 is the true copy of charge sheet. Ex.P.8 is the true copy of P.M. report. Ex.P.9 is the SCCH-2 9 M.V.C. 3537/2023 notarized copy of birth certificate of petitioner No.2. Ex.P.10 is the notarized copy of Aadhaar Card pertaining to 1 st petitioner. Ex.P.11 is the notarized copy of Aadhaar Card pertaining to deceased. Ex.P.12 is the notarized copy of DL pertaining to deceased. Ex.P.13 and 14 are the notarized copies of Aadhaar Cards pertaining to 3rd and 4th petitioner.
11. According to the respondent No.2, the accident occurred due to rash and negligent driving of deceased. In order to substantiate the same the legal manager of the 2 nd respondent insurance company is examined as R.W.1 and he has produced the true copy of policy marked at Ex.R.1. In his evidence, he has been stated that, the police have arrayed the deceased as accused No.2 in the charge sheet.
12. Learned counsel for the petitioner vehemently argued that, the offending vehicle was parked on the road without indicator. If the offending vehicle was parked with an indication, the claimant could have cited the lorry and avoided the accident. Moreover, there was a snowfall at the time of accident. Hence, the deceased was unable to see the parking of offending vehicle. Apart from that, the deceased was riding his motor cycle in a SCCH-2 10 M.V.C. 3537/2023 slow speed. As such, there is no negligence or over speed from the side of deceased. The accident occurred only due to the parking of offending vehicle without indication. Hence, the 2 nd respondent is liable to pay the compensation. In the line of his arguments, he has relied on the following decisions:
1. ILR 2014, Kar. 2558, between Mr. Devaraju T. Vs., The United India Insurance Co. Ltd., and Another.
2. 2009 ACJ 2600, between Oriental Insurance Co.Ltd., Vs. Channappa Shettigar and Others.
3. ILR 2002 Kar. 893, between Jyothi and Others Vs. Mohammed Usmal Ali and Others.
I have carefully gone through the decision relied by the counsel for the petitioners and applied the principles to the case on hand.
13. Admittedly, there is no dispute with regard to death of Nagappa Ganganahalli in a road accident on 04.05.2023. Further, there is no dispute with regard to policy. In other words policy was in force at the time of accident. Now, the question before this Tribunal is whether the deceased has contributed his SCCH-2 11 M.V.C. 3537/2023 negligence towards the occurrence of accident or not?. In this connection, Ex.P.7 is relevant. Ex.P.7 is the charge sheet. A careful perusal of this document it reveals that, the driver of offending vehicle has been arrayed as accused No.1 and deceased has been arrayed as accused No.2. In the instant case, the petitioners have examined the 1st informant as P.W.2. In his affidavit he has stated that, the deceased was riding his vehicle by observing the traffic rules and regulations. On account of parking of TATA goods vehicle in the middle of the road without giving any indication or taking any precautionary measures, the accident was caused. In his cross-examination, he has admitted that, the accident was occurred on a straight road. He also admitted that, the deceased was proceeding 50 meters away from him. He also admitted that, at the time of accident, there was no traffic. Further, he also admitted that, time was fixed for delivery of food.
14. By careful reading of answers of P.W.2, it can be inferred that, time was fixed for the delivery of food and to deliver the food in-time, the deceased might have drove his vehicle in speed. At the cost of repetition, charge sheet is also reveals that, the deceased has been arrayed as accused No.2. The charge SCCH-2 12 M.V.C. 3537/2023 sheet was not challenged by the legal heirs of the deceased. It is not the case of the petitioners that, there was snowfall at the time of occurrence of accident. Suppose, if the driver of TATA Goods vehicle parked the vehicle with indication, certainly there was no chances of accident. Under such circumstances, there is 20% of contributory negligence i.e., attributable to the deceased and to that extent the 2nd respondent established the contributory negligence. Further, 80% attributed to the driver of the Tata Goods vehicle. With the above referred discussions, this Tribunal is answered Issue No.1 in the Affirmative and Issue No.2 in the Affirmative.
15. ISSUE No.3:- This issue with respect to age and income of the deceased.
Age:- According to the petitioners, the deceased was aged about 31 years as on the date of accident. In the instant case, the respondent No.2 has disputed the age of the deceased. In order to substantiate the same, P.W.1 has produced the notarized copy of Aadhaar Card and D.L. pertaining to deceased, which are marked as Ex.P.11 and Ex.P.12. On careful perusal of these documents, it reveals that, the date of birth of deceased is 01.04.1991. The SCCH-2 13 M.V.C. 3537/2023 accident was occurred on 04.05.2023. Therefore, age of the deceased is considered as 32 years at the time of accident.
16. Income of the deceased:- According to the petitioners, the deceased was working as Delivery Boy at Swiggy, Bengaluru and he was earning Rs.30,000/- per month. However, respondent No.2 has disputed the avocation and income of deceased. P.W.1 has deposed that, her son was working as Delivery Boy at Swiggy and he was earning Rs.30,000/- per month. In order to substantiate the same, P.W.1 has not produced the documents. At this juncture, it is worth to rely on the decision of the Hon'ble High Court of Karnataka decided in M.F.A. No.101144 of 2020 ( MV-I) on 05.07.2023, between Ananda Vs. Arun and Another, wherein the Hon'ble High Court of Karnataka at Para 9 (b) as hereunder:
" In the absence of any cogent material on record, it is for the courts and Tribunals to assess the income notionally. The notional income fixed by the Karnataka State Legal Service Authority for the accident of the year 2017 is Rs.10,250/-. In the absence of any material produced by the claimant to prove his income, it is appropriate to assess the notional income of the injured claimant at Rs.10,250/- per month, and the same is assessed as the monthly income of the injured claimant". SCCH-2 14 M.V.C. 3537/2023
17. In the instant case also, the petitioners have not produced the documents to establish the income of deceased. As such in the absence of reliable document and supportive evidence, the notional income of the deceased is to be considered by relying on the judgment of the Hon'ble High Court of Karnataka referred to above. As per the notional income fixed by the Karnataka State Legal Service Authority for the accident in the year 2022 is Rs.15,500/- per month. In the instant case, accident was occurred in the year 2023. Hence, the notional income of the deceased is considered as Rs.16,000/- per month. Accordingly, Issue No.3 is answered in the partly Affirmative.
18. ISSUE No.4:- This issue is with regard to entitlement of relief. According to the petition averments, petitioner No.1 is the wife of deceased and petitioner No.2 is the minor son of deceased. The Petitioner Nos.3 and 4 are the parents of deceased. The 1 st petitioner has lost her husband and petitioner No.2 has lost his loving father at the age of 2 months. That apart, Petitioner Nos.3 and 4 have lost their son. Moreover, the bond between the parents and children is an eternal. At this juncture it is worth to refer the decision of Hon'ble High Court of Karnataka rendered in M.F.A.No.102868 of 2014 (M.V.D.), between Reliance General SCCH-2 15 M.V.C. 3537/2023 Insurance Co. Ltd., Vs. Gangappa Saunshi and Others, wherein the Hon'ble High Court held that, "even if the dependency is relevant criteria to claim compensation for loss of dependency, it does not mean financial dependency and the dependency includes gratuitous service dependency, physical dependency, emotional dependency and psychological dependency so on and so forth, which can never be equated in terms of the money. Even married sons and daughters are entitled for compensation not only on conventional heads, but also on loss of dependency". Hence, Petitioner Nos.1 to 4 are considered as dependents of deceased. Keeping in view of the 4 dependents of deceased in the case on hand, 1/4 th of the amount is to be deducted from total income towards his personal expenses.
19. Already this Tribunal has observed that, as on the date of accident the deceased was aged about 32 years. The Hon'ble Apex Court in National Insurance Co. Ltd., Vs. Pranay Sethi and Others, held that "if the person died in the motor accident, the income with respect to the future prospects has to be taken into consideration while awarding compensation". It is relevant to note that The Hon'ble Apex Court has provided the chart for the age of the deceased and percentage of future prospects as hereunder: SCCH-2 16 M.V.C. 3537/2023
"If the deceased is self employed or fixed salary, his age below 40 years, future prospects is 40%".
"If the deceased between 40 to 50 years age, future prospects is 25%".
"If the deceased between 50 to 60 years age, future prospects is 10% and if the deceased more than 60 years, no addition as future prospects".
20. Admittedly, the petitioners have not produced any documents to show the income of deceased. Hence, the deceased is not a permanent job holder and he is not a fixed salary person. The deceased was aged about 32 years and therefore, additional income is added to the income towards future prospects. In the instant case, the deceased was 32 years. Hence, the future prospects of 40% is to be added to the income of deceased. By applying the principles of above ruling, 40% of the income of Rs.16,000/- is Rs.6,400/-. By adding the said amount with monthly income of deceased, the income of deceased would be Rs.22,400/- (i.e., Rs.16,000 + Rs.6,400/-). In this case petitioner Nos.1 to 4 are considered as dependents of deceased. Keeping in view of the 4 dependents of deceased in the case on hand, 1/4th amount is to be SCCH-2 17 M.V.C. 3537/2023 deducted toward personal expenses of deceased. After deducting 1/4th from Rs.22,400/- the actual monthly income would be Rs.16,800/- (i.e, Rs.22,400 - Rs.5,600/-). Then, total income of the deceased per annum would be Rs.2,01,600/- (Rs.16,800 x 12)
21. As the deceased was 32 years old at the time of death, the multiplier of 16 is applied, which is appropriate to age of deceased. The normal compensation would then workout to be Rs.2,01,600 x 16 = Rs.32,25,600/- for loss of dependency.
22. The Hon'ble Apex Court in National Insurance Co.Ltd., Vs. Pranay Sethi and Others has laid down the guidelines with regard to awarding compensation towards loss of estate, funeral expenses and consortium. The petitioners have contended that, they have spent substantial amount towards transportation of dead body and funeral expenses. In order to substantiate the same, they have not produced any documents. Now, the question before this Tribunal is whether petitioner Nos.2 to 4 are also entitled for consortium or not? Admittedly, the 1 st petitioner is the wife and she is entitled for spousal consortium. Admittedly, the petitioner No.2 is the son of deceased. Petitioner Nos.3 and 4 are the parents of deceased. At this juncture, it is worth to rely on the decision of the SCCH-2 18 M.V.C. 3537/2023 Hon'ble Apex Court reported in 2018 (1) SCC 130 between Magma General Insurance Co. Ltd., Vs. Nanuram @ Churu Ram and Others. The Hon'ble Apex Court held that, the parents and children are having right to get the compensation under filial consortium. It is relevant to note that, the Hon'ble Apex Court in National Insurance Co.Ltd., Vs. Pranay Sethi and Others Case, observed that, the conventional heads namely filial consortium, loss of estate, funeral expenses has to be enhanced at the rate of 10% in every three years. Therefore, the 1st petitioner is entitled for Rs.48,000/- under the head of spousal consortium and petitioner Nos.2 to 4 are entitled for Rs.48,000/- each under the head of filial consortium. Further, Rs.18,000/- is awarded for funeral expenses and also Rs.18,000/- is awarded towards loss of estate.
23. The details of compensation amount is as under:
S.No. Heads Rs.
1. Towards loss of Rs. 32,25,600/-
Dependency.
2. Towards spousal and Rs. 1,92,000/-
48,000 X 4
filial consortium,
3. Loss of Estate Rs. 18,000/-
4. Funeral expense Rs. 18,000/-
Total Rs. 34,53,600/-
SCCH-2 19 M.V.C. 3537/2023
Hence, petitioners are entitled for just and reasonable amount of Rs.34,53,600/-.
24. Regarding liability and interest.
Driving License:- Charge sheet submitted by IO does not reveals that driver of offending vehicle was having valid and effective DL. Therefore, it appears to this Tribunal that, the driver of the offending vehicle was holding valid D.L. at the time of accident.
Insurance Policy and liability:- As discussed above, in so for as the contributory negligence factor is concerned, 20% of the contributory negligence is attributed to the deceased. The adjudged compensation of Rs.34,53,600/- with interest at 6% p.a. is ordered to be proportionately paid by respondent No.2 in the ratio of 80% and 20% to be attributed to the deceased. Therefore, respondent No.2 is directed to pay 80% of the adjudged compensation with interest at the rate of 6% p.a. from the date of petition till realization. Accordingly, the respondent No.2 shall pay Rs.27,62,880/- with interest at the rate of 6% p.a. from the date of petition till realization. Hence, I answer Issue No.4 in Partly Affirmative.
SCCH-2 20 M.V.C. 3537/2023
25. ISSUE No.5:- In view of discussion made above, this Tribunal proceeds to pass the following.
:ORDER:
Claim Petition filed by the Petitioners U/Sec.166 of M.V. Act is partly allowed with costs of the Petition.
Petitioners are awarded just and reasonable compensation of Rs.27,62,880/- (Rupees Twenty Seven Lakhs Sixty Two Thousand Eight Hundred and Eighty Only) with interest at the rate of 6% p.a. from the date of petition to till the date of depositing of the compensation amount in the Tribunal.
Respondent No.2 being insurer of the
offending vehicle is liable to pay the
compensation amount to the petitioners and directed to deposit the compensation amount awarded to the petitioners in the Tribunal within 2 months from the date of this judgment.
Draw award accordingly.
Advocate fee is fixed at Rs.1,000/-.
: APPORTIONMENT OF COMPENSATION :
On deposit of compensation amount, Petitioner No.1 is entitled for 40%, petitioner SCCH-2 21 M.V.C. 3537/2023 No.2 is entitled for 30% and petitioner Nos.3 and 4 are entitled for 15% each with interest. 50% of share of petitioner No.1, 3 and 4 with interest is to be paid to them through E-
payment on proper identification as per rules and after verifying the stay order from the Hon'ble Appellate Court and remaining 50% of their share with interest shall be invested in F.D. in their respective name in any nationalized bank or scheduled bank of their choice for a period of 3 years.
It is clarified that, the petitioner Nos.1, 3 and 4 are at liberty to withdraw the periodical interest accrued on the deposit amount from time to time.
Entire share of petitioner No.2 with interest shall be invested in F.D. in his name in any nationalized bank or scheduled bank until he attains the age of majority.
(Dictated to Stenographer directly on computer, typed by her, revised and corrected by me, and then pronounced in the open Court on this the 11 th November, 2024) (H.P. Mohan Kumar) VI Addl. Judge, Court of Small Causes, and ACJM, MACT, Bengaluru.
SCCH-2 22 M.V.C. 3537/2023: ANNEXURE :
List of witnesses examined for petitioners:
P.W.1 : Smt. Kasheebai Ganganalli. P.W.2 : Sri. Siddappa Sharanappa Devura.
List of exhibited documents marked for petitioners:
Ex.P.1 : True copy of FIR pertaining to
Cr.No.117/2023.
Ex.P.2 : True copy of complaint.
Ex.P.3 : True copy of spot mahazar.
Ex.P.4 : True copy of spot sketch.
Ex.P.5 : True copy of M.V.A. report.
Ex.P.6 : True copy of Inquest report
Ex.P.7 : True copy of charge sheet.
Ex.P.8 : True copy of postmortem report.
Ex.P.9 : Notarized copy of birth certificate pertaining
to 2nd petitioner.
Ex.P.10 : Notarized copy of Aadhaar Card pertaining
to 1st petitioner.
Ex.P.11 : Notarized copy of Aadhaar Card pertaining
to Nagappa Ganganahalli.
Ex.P.12 : Notarized copy of D.L. pertaining to Ngappa
Ganganahalli.
Ex.P.13 : Notarized copy of Aadhaar Card pertaining
to 3rd petitioner.
Ex.P.14 : Notarized copy of Aadhar Card pertaining to
4th petitioner.
Ex.P.15 : Notarized copy of Aadhar Card pertaining to
P.W.2
SCCH-2 23 M.V.C. 3537/2023
List of witnesses examined for the Respondents:
R.W.1 : Deepthishree K.J. List of exhibited documents marked for the Respondents:
Ex.R.1 : True copy of Insurance Policy. Digitally signed by H P HP MOHANKUMAR MOHANKUMAR Date: 2024.11.20 12:02:45 +0530 (H.P. Mohan Kumar) VI Addl. Judge, Court of Small Causes, and ACJM, MACT, Bengaluru.