Bangalore District Court
Smt. B. Lakshmidevi @ vs Murugan on 21 December, 2015
IN THE COURT OF MOTOR ACCIDENT CLAIMS TRIBUNAL,
XX ADDL.SMALL CAUSES JUDGE, BANGALORE, (SCCH-22)
Dated this the 21st day of December, 2015
Present : Sri.N.SUBRAMANYA, M.Com., LLB.,
Member, MACT & XX ASCJ, Bangalore.
M.V.C. No.4481/2012
Petitioners : 1. Smt. B. Lakshmidevi @
Bonu Laxmidevi,
W/o Late B. Thippanna @ Chinnabba,
Aged about 50 years.
2. B. Subramanyam @
Bonu Subramanyam
S/o Late B. Thippanna @ Chinnabba,
Aged about 29 years.
3. B. Munirathnam @
Bonu Munirathnam
S/o Late B. Thippanna @ Chinnabba,
Aged about 27 years.
4. B. Venkataramana @
Bonu Venkataramana
S/o Late B. Thippanna @ Chinnabba,
Aged about 25 years.
5. B. Murali @
Bonu Murali,
S/o Late B. Thippanna @ Chinnabba,
Aged about 23 years.
6. B. Suresh @
Bonu Suresh,
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S/o Late B. Thippanna @ Chinnabba,
Aged about 21 years.
7. B. Balaji @
Bonu Balaji
S/o Late B. Thippanna @ Chinnabba,
Aged about 19 years.
All are presently residing at
C/o C. Venkataramana,
S/o C. Ramaiah,
No.25, 15th Cross,
Fort Temple road,
Malleswaram,
Bangalore - 3.
Permanent address of the petitioner:
Tippareddypalli Village, Peddapanjani
Mandal, Chitoor District.
Andhra Pradesh.
(By Sri.T. Kodanda Rama, Advocate)
-Versus-
Respondents: 1. Murugan,
S/o Managatti,
Major, No.74, L.R. Nagar,
26th Cross, Koramangala,
Bangalore - 560 030.
(R.C. Owner of the Eicher Mini
Lorry bearing No.KA-01-D-4406)
(Exparte)
3 MVC.No.4481/2012
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2. The Manager,
Royal Sundaram Alliance Ins. Co. Ltd.,
No.132, Sri Balaji Sovereign, II Floor,
Next to Urban edge,
Brigade Road,
Bangalore - 560 025.
(Insurer of the Eicher Mini -
Bearing Reg. No.KA-01-D-4406)
Policy no. VGC0150156000100
Valid from 28.04.2010 to 27.04.2011.
(By Sri. B.N.Sreekanta Swamy, Adv.)
JUDGMENT
Petitioners have filed this petition under section 166 of the Motor Vehicles Act, 1989 for the award of compensation of Rs.15,00,000/- for the death of B.Thippanna @ Chinnabba, (in short as deceased) in a Motor Vehicle's Accident.
2. Facts of the petitioners case as are under :
That on 30.09.2010 at about 1.45 a.m. when the deceased was proceeding in the Mini Lorry Bearing Reg. No.KA-01-D-4406 along with vegetables to sell the same at Koyambedu Market, Chennai, at that time the driver of the Mini Lorry bearing Reg. No.KA-01-D-4406 came in a 4 MVC.No.4481/2012 SCCH-22 rash and negligent manner and dashed against the deceased. Due to the impact, deceased sustained grievous injuries. Immediately he was shifted to Government hospital, Walaja and later was shifted to Government hospital, Vellore again was shifted to Sri. Venkateswara Medical College Hospital for better treatment. But, deceased succumbed to the injuries on 30.09.2010 at about 4.30 p.m. while taking treatment.
Petitioners have contended that they have spent a sum of Rs.25,000/- towards funeral and obsequies ceremony and Rs.20,000/- towards transporation of dead body and Rs.50,000/- towards treatment, medicines, conveyance etc. Prior to the accident, deceased was hale and healthy and was doing Agricultural work and was earning a sum of Rs.10,000/- p.m. and was contributing the entire earnings for the welfare of the family. Due to the sudden demise of the deceased, petitioners have lost their love and affection.
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3. They have contended that the accident had occurred due to rash and negligent driving of the Mini Lorry bearing Reg. No.KA-01-D-4406 by its driver. 2nd respondent is the Insurer and the 1st Respondent being the registered Owner of the above said offending Mini Lorry bearing Reg. No.KA-01-D-4406. Hence, they are liable to pay compensation and the petitioners have prayed for award of compensation of Rs.15,00,000/- from the respondents with interest at the rate of 12% per annum from the date of the petition till realisation.
4. In pursuance of the notice, 2nd Respondent appeared through its counsel and filed its written statements. In spite of service of notice through RPAD, 1st Respondent remained absent. Hence, he has been as placed exparte.
5. 2nd Respondent in its written statement has admitted the issuance of insurance policy to the Mini Lorry bearing Reg. No.KA-01-D-4406 and liability if any 6 MVC.No.4481/2012 SCCH-22 is subject to the terms and conditions of the policy. It has taken other general contentions. It submits that the compensation is highly excessive and exorbitant. On all these grounds, it prays to dismiss the claim petition of the petitioners.
6. The 2nd respondent has further filed additional written statement and contended that according to the averments of the petition the deceased and others were travelling in Eicher Mini Lorry bearing No.KA-01-D-4406 and submits that, more than one person travelling as a NFPP passenger is not permissible in law. It further submitted that, the deceased and others were travelling as a passengers in a goods vehicle, which is not permissible in law and submitted that passenger travelling in the goods vehicle cannot be constituted as a third party. It further submits that deceased was travelling as a passenger in goods vehicle and it amounts to violation of the terms and conditions of the policy issued by this respondent and violation of MV Act. It 7 MVC.No.4481/2012 SCCH-22 submits that, according to the terms and conditions of the policy issued by the respondent states that: use only for carriage of goods within the meaning of Motor Vehicle Act, 1988. On all these grounds, it prays to dismiss the claim petition of the petitioners.
7. On the basis of the above pleadings, following issues have been framed:
1. Whether petitioners prove that the accident that occurred on 30.09.2010 at about 1.45 a.m., on M.B.T.Road, near Reliance Petrol Bunk, SIPCOT, Tamil Nadu, was caused due to the rash and negligent riding of the Mini Lorry bearing Regn.No.KA-01-D-4406 by its driver, due to which, deceased- B. Thippanna @ Chinnappa, S/o Veerappa sustained grievous injuries and succumbed to it?
2. Whether the 2nd Respondent proves that the driver of Mini Lorry bearing Regn.No.KA-01-
D-4406 was not holding valid and effective D.L. to drive the particular category of the vehicle at the relevant time of accident?
3. Whether petitioners are entitled for compensation? If so, for what amount and from whom?
4. What order or Award?
8 MVC.No.4481/2012
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8. In order to prove the above Issues, petitioners have got examined 7th petitioner as PW1 on their behalf and have got marked 11 documents as Exs.P.1 to P.11 and closed their side. 2nd Respondent has got examined its employer as RW1 and got marked two documents as Ex.R1 and R2 and closed its side.
9. Heard both sides.
10. My answer the above issues are as under:
Issue No.1: In the Affirmative
Issue No.2: In the Negative
Issue No.3: Yes, to the extent as shown in the final order, from Respondent Nos.1 and 2 Issue No.4: As per final order, for the following:
REASONS
11. Issue No.1 The 7th Petitioner, son of the deceased examined as PW1. He has filed affidavit evidence as his examination in chief narrating the accident as mentioned in the above pleadings.
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12. In order to substantiate the said facts, petitioner has produced certified copies of FIR and Inquest reports, and true copies of PM report, IMV report, Charge sheet pertaining to Crime No.268/10 of Sipcot Police Station, marked as Exs.P.1 to P4 and P7 respectively. On going through the documents placed on record and the Charge sheet, it reveals that on the complaint of Sowmya Gowda the police have investigated the matter and have found that the accident in question to have occurred due to the rash and negligent driving of Mini Lorry bearing No.KA-01-D-4406 by its driver. Nothing has been brought out in the cross examination of PW1 to disbelieve that the accident was not caused due to the negligence of the driver or the deceased to have contributed his negligence for the accident. Hence, from the material placed on record, it could be detected that the accident in question has occurred due to the rash and negligent driving of the Mini Lorry bearing No.KA-01-D-4406 by its driver and the deceased has 10 MVC.No.4481/2012 SCCH-22 succumbed to the injuries sustained by him in the accident. Hence, I answer Issue No.1 in the Affirmative.
13. Issue No.2:
2nd respondent has contended that the driver of the Mini Lorry bearing No.KA-01-D-4406 was not holding valid and effective driving license to drive the particular category of the vehicle at the relevant time of the accident. But, in order to substantiate the said fact, the 2nd respondent neither lead any evidence nor produced any material documents in this regard. On perusing the charge sheet Ex.P7, it reveals the police have not placed charge sheet against the driver of the Car Mini Lorry bearing No.KA-01-D-4406 for not holding valid driving license to drive Mini Lorry, as such it can be inferred that the driver of the Mini Lorry was holding valid driving license at the time of the accident. Hence, I hold the 2nd respondent has failed to prove that the driver of the Mini Lorry bearing No.KA-01-D-4406 was not holding valid 11 MVC.No.4481/2012 SCCH-22 driving license at the relevant time of the accident. Hence, I answer Issue no.2 in the Negative.
14. Issue No.3:
The petitioners have claimed the compensation on account of the death of deceased in the said accident. In order to prove the relationship between petitioners and deceased, they have produced Ex.P.5 - Family members certificate.
LOSS OF DEPENDENCY:-
The deceased was aged about 55 years as per Ex.P.2- Inquest report. There is no proof of income. Hence, notional income of Rs.7,000/- can be taken. PW- 1 in the cross examination admits that:-
"Petitioner No.2 to 5 are married and got one child each. It is true to suggest that petitioner No.2 to 7 are living on their own income and not depended on the income of the deceased. Deceased was 5 years older than the petitioner No.1."12 MVC.No.4481/2012
SCCH-22 Hence, petitioner No.1 was alone dependant on the deceased. Hence, 1/3rd of his income is to be deducted towards personal expenses. Therefore, his income comes to Rs.4,667/-. As per citation reported in (2009) 6 SCC 121, in the case between Sarala Verma -Versus- Delhi Transport Corporation, the multiplier applicable for the age of group of 51 to 55 years is "11". Hence, the loss of dependency would be Rs.4,667 x 12 x 11 = Rs.6,16,044/- rounded off to Rs.6,16,000/-. Hence, the said amount of Rs.6,16,000/- is awarded under the head 'loss of dependency'.
15. LOSS OF CONSORTIUM:-
A sum of Rs.10,000/- is awarded towards loss of consortium to petitioner no.1 who is the wife of the deceased.
16. FUNERAL EXPENSES:-
It is stated in the petition as well as in the evidence of PW 1 that, they have spent a sum of Rs.25,000/- 13 MVC.No.4481/2012
SCCH-22 towards transportation of dead body and funeral and obsequies ceremony. Hence, in the absence of proof, a sum of Rs.25,000/- is awarded towards the funeral expenses of the deceased.
17. LOSS OF LOVE AND AFFECTION:;-
In the case on hand, the petitioner Nos.2 to 7 are the sons of the deceased and they have lost the love and affection of the deceased. Taking into the consideration of the said fact, this Tribunal is of the considered view that, it would be just and proper to award a compensation of Rs.10,000/- each. Hence, a sum of Rs.60,000/- is awarded under the head "Loss of love and affection".
18. LOSS OF ESTATE:-
The petitioner is awarded a sum of Rs.25,000/- under this head.14 MVC.No.4481/2012
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19. Thus, the petitioners are entitled for compensation under the following heads as follows:
For Loss of Dependency Rs. 6,16,000-00 For Loss of consortium Rs. 10,000-00 For Loss of love and affection Rs. 60,000-00 For Funeral and obsequies Rs. 25,000-00 ceremony For Loss of Estate Rs. 25,000-00 TOTAL Rs. 7,36,000-00
20. Thus, in all, the petitioners are entitled for total compensation in a sum of Rs.7,36,000/-. The above said compensation awarded is just, fair and adequate under the facts and circumstances of the case.
21. With regard to Liability: As discussed by me on Issue No.1, the accident in question has occurred due to the rash and negligent driving of Eicher Mini Lorry bearing No.KA-01-D-4406 by its driver. The 1st Respondent is the owner of the said vehicle, as such, he is vicariously liable for the acts of the driver. 1st Respondent has insured his vehicle with the 2nd 15 MVC.No.4481/2012 SCCH-22 Respondent and the Insurance policy is in force as on the date of accident.
The 2nd respondent has seriously contested stating that deceased was travelling as a passenger and not travelling with goods. Hence, it is violation of the permit condition and hence, he is not liable to indemnify the owner and not liable to pay any compensation. In this regard, on perusal of the Ex.P.1 - FIR and complaint, Ex.P.2 - Inquest report, Ex.P.7 - Charge sheet, Ex.P.8 - Statement, it has been clearly mentioned that deceased loaded ground nuts bag and custard fruits in the lorry at Bangarpet. Since, already two persons were sitting in the cabin; deceased was sitting on the top of the vegetables bag. Further, in Ex.P.9 and P.10 Sketch and Spot Mahazar, it has been specifically mentioned about spreading of vegetables in the spot. All this evidence and materials clearly goes to show that deceased was travelling with the vegetables to sell the vegetables market at Chennai and hence, it can be clearly held that 16 MVC.No.4481/2012 SCCH-22 deceased was not traveling as a passenger but travelling as a owner of the goods. Petitioner has also produced Ex.P.11 which shows that deceased was Agriculturist. 2nd respondent failed to prove that deceased was traveling as a passenger. On the other hand, petitioners clearly proved the fact that deceased was travelling with vegetables and fruits. Hence, insurance company is held liable to indemnify the RC owner. Hence, both Respondents No.1 and 2 are jointly and severally held liable to pay compensation to the petitioners with interest at 8% p.a. from the date of the petition till realisation. Accordingly, I answer the Issue No.3 partly in the Affirmative.
22. Issue No.4: In the light of my findings on Issue Nos.1 to 3, I proceed to pass the following:
ORDER The claim petition filed by the petitioners under Sec.166 of Motor Vehicle's Act, 1989 is hereby allowed in part with cost.17 MVC.No.4481/2012
SCCH-22 The petitioners are entitled for total compensation of Rs.7,36,000/- (Rupees Seven Lakhs Thirty Six Thousand only) with interest at 8% p.a. from the date of petition till realisation. The Respondents are jointly and severally held liable to pay the above said compensation to the petitioners and the primary responsibility is fixed on the 2nd Respondent to pay the compensation and directed to deposit the same within 30 days from the date of the award.
Petitioner Nos.2 to 7 are awarded for compensation of Rs.20,000/- each, remaining amount of Rs.6,16,000/- is awarded Petitioner No.1. Entire compensation amount with accrued interest shall be paid to the petitioner Nos.2 to 7 on deposit as it is a meager amount.
On deposit of compensation amount, 50% of the compensation amount with accrued interest awarded to the Petitioners No.1 shall be kept in Fixed Deposit in her name, for a period of three years in any of the Nationalised or scheduled Banks of their choice.18 MVC.No.4481/2012
SCCH-22 Advocate's fee is fixed at Rs.1000/-. Draw award accordingly.
(Dictated to the Stenographer through online, corrected, revised and then signed and pronounced by me in the Open Court dated this the 21st day of December 2015).
(N.SUBRAMANYA) Member, MACT & XX ASCJ Bangalore.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PETITIONERS:
PW1 B. Balaji @ Bonu Balaji LIST OF DOCUMENTS MARKED ON BEHALF OF PETITIONERS:
Ex.P1 Copy of FIR Ex.P1 (a) Translated copy of FIR Ex.P2 Copy of Inquest report Ex.P2 (a) Translated copy of Inquest report Ex.P3 Copy of PM report Ex.P4 Copy of IMV report Ex.P5 Copy of Family members certificate Ex.P6 Copy of Change of section Ex.P6 (a) Translated copy of Change of section Ex.P7 Copy of Charge sheet Ex.P7 (a) Translated copy of Charge sheet Ex.P8 Copy of Statement of B. Murali Ex.P8 (a) Translated copy of Statement of B. Murali Ex.P9 Copy of Sketch Ex.P9 (a) Translated copy of Sketch Ex.P10 Copy of Mahazar
Ex.P10 (a) Translated copy of Mahazar 19 MVC.No.4481/2012 SCCH-22 Ex.P11 Notarized copy of pass book LIST OF WITNESSES EXAMINED ON BEHALF OF RESPONDENTS:
RW1 Sandeep S.K. LIST OF DOCUMENTS MARKED ON BEHALF OF RESPONDENTS:
Ex.R1 Authorization letter
Ex.R2 Copy of policy
Member, MACT & XX ASCJ,
Bangalore.
**