Bangalore District Court
Sunkappa vs United India Ins.Co.Ltd on 12 February, 2016
BEFORE THE COURT OF SMALL CAUSES AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, AT BANGALORE (SCCH-16)
PRESENT: SRI SATISH J.BALI,
B.Com., LL.M.,
X Addl.Judge, Court of Small Causes
(SCCH-16) Bangalore.
DATED THIS THE 12th DAY OF FEBRUARY 2016.
MVC.No.1231/2013
****
PETITIONERS: 1. Sunkappa,
S/o Late.Dodda Sunkappa
Aged about 38 years,
R/at No.5, 9th Main Road
8th Cross, Akkiyappa Garden
Mohankumarnagar
Yeswanthpura, Bangalore-22.
2. Smt. Yellamma,
W/o. Yellappa,
Aged about 35 years.
R/at No.1, 9th Main,
Mohankumarnagar
Bangalore.
3 Nagappa,
S/o. Late.Sunkappa,
Aged about 28 years.
R/at No.7, 9th Main,
Mohankumarnagar
Bangalore.
4 Gangamma
W/o. Basappa
Aged about 25 years.
R/at No.5, 9th Cross
Mohankumarnagar
Bangalore.
(By Pleader Sri Umashankar.)
2 MVC.1231/2013
SCH-16
5 Kumara
S/o.Sunkappa @ Sunkappa Kandli
Aged 25 years
R/at No.607-45A,
8th Main Road, Mohankumarnagar
Bangalore.
(By Pleader Sri B.Shashirekha.)
Vs.
RESPONDENTS: 1. United India Ins.Co.Ltd.,
Motor Dealer Division
Motor Dealer Office
Krishi Bhavan, 6th Floor
Hudson Circle, Bangalore-01.
(Policy No.0716033112P300371450)
Valid from 6-9-12 to 5-9-13)
(Pleader by Sri.....)
2. G.Venkatesh
S/o.H.Gangappa
Major
R/at No.243,
15th A Cross, 2nd Stage
West of Chord Road
2nd Main, Mahalakshkmipura
Bangalore.
(Exparte)
*****
JUDGMENT
The petitioners being legal heirs of the deceased Smt.Gangamma have filed this petition under Section 166 3 MVC.1231/2013 SCH-16 of Motor Vehicles Act, 1988, claiming compensation of Rs.5,00,000/-on account of death of Gangazmma in a road traffic accident, which occurred on 11-1-2013.
2. The facts of the petition of the petitioners, in nut-shell are as under:
The deceased Smt.Gangamma on 11-1-2013 at about 4.45 p.m. was crossing the road on outer ring road of Vijayanagar by observing all traffic rules and regulations, at that time, a tempo bearing No.CAW-1341 came from Southern side of the said road, in a rash and negligent manner and dashed against the deceased. Due to the impact, Smt.Gangamma fell down and sustained grievous injuries.
Immediately after the accident, she was shifted to Nimhans hospital, Bangalore, wherein she was treated as inpatient, but she succumbed to the injuries on 12-1-2013.
3. It is stated that at the time of accident, the deceased was hale and healthy and was working as coolie and earning Rs.5,000/-p.m. The deceased was contributing her entire income towards welfare of her family. It is also stated that, due to the sudden demise of Smt.Gangamma, the petitioners were put to great financial loss and mental agony. 4 MVC.1231/2013
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4. It is stated that that the Vijayanagar Traffic police have registered a case against the driver of respondent No.2 in Cr.No.6/13 for the offence punishable under Sec.279 and 304(A) of IPC. The petitioners have spent Rs.25,000/- towards funeral and obsequies ceremonies and Rs.5,000/- towards transportation of dead body etc. The respondents, being insurer and owner of the offending vehicle, are jointly and severally liable to pay the compensation to the petitioners. On all these grounds, petitioners prayed for awarding the compensation of Rs.5,00,000/- to them.
5. In response to the notice, the respondent No. 1- insurance company appeared before this Tribunal through their counsel, whereas the respondent No.2 did not appear before this Tribunal inspite of service of notice and hence he is placed exparte.
6. The respondent No.1 filed the written statement, denying the age, income, avocation of the deceased. The respondent No.1 further contended that the accident was due to the negligence of the deceased herself. The respondent No.1, in their written statement, admitted about issuance of insurance policy in respect of Tempo bearing No.CAW-1341 5 MVC.1231/2013 SCH-16 and it was in force on the date of accident. However, they contended that their liability is subject to terms and conditions of the policy. It is stated that the deceased tried to cross the road where there was no Zebra crossing. Hence, the deceased is sole responsible for cause of the accident. It is contended that the petitioners are all major and they have got their own avocation and income and hence, they are not entitled for any compensation for loss of dependency. It is further contended that the compensation claimed by the petitioners is excessive and exorbitant. On all these grounds, respondent No.1 prayed for dismissal of the petition with costs.
7. On the basis of the above pleadings, my predecessor in office had framed the following issues:
1. Whether the petitioners prove that deceased Smt.Gangamma died in a road traffic accident due to involvement of Temp bearing No.CAW.1341 on 11-1-2013 at about 4.45 p.m. by its rash and negligent driving as alleged in the petition?
2. Whether the petitioners are entitled for compensation as claimed? If so, to what extent and from whom?
3. What order?6 MVC.1231/2013
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8. To prove the above issues, the petitioner No.1 examined before this Tribunal as P.W.1 and got marked Ex.P.1 to P.11 documents. The respondent No.1 who only contested the petition, has not let in any oral and documentary evidence on their behalf.
9. I have heard the arguments and perused the materials on record. The learned counsel for the respondent No.1 has relied upon the following decision:
1. ILR 1998 KAR 1934 (Narasimhaiah vs The General Manager & Another
2. ILR 2004 KAR 1104 (Koosappa Poojari vs K.Sadabba and others)
3. ILR 2004 KAR 1112 (Smt. Devi and others vs Prabhakar and another)
4. 2006 ACJ 2347 (New India Assurance Co.Ltd., vs Ramya Raghavan and another)
5. ILR 2008 KAR 1561 (M/s.Oriental Ins.Co.Ltd vs Shivamma and others)
6. AIR 2007 SC 1474 (Smt.Manjuri bera vs Oriental Ins.Co.Ltd.,)
10. By considering the evidence on record and because of my below discussed reasons, I answer the above issues in the followings:
Issue No.1: IN THE AFFIRMATIVE
7 MVC.1231/2013
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Issue No.2: PARTLY IN THE AFFIRMATIVE Issue No.3: AS PER FINAL ORDER.
REASONS ISSUE NO.1:
11. The respondent No1 has taken up the contention that at the time of crossing the road, the accident took place. Hence, the deceased Smt.Gangamma is responsible for cause of the accident.
Pw-1, who is the son of the deceased stepped into the witness box and stated about the manner of accident, injuries sustained by the deceased Smt.Gangamma and also about her income and avocation and expenses incurred for funeral and obsequies ceremony etc. Pw-1 stated that the accident was due to the negligence on the part of the driver of Tempo bearing No.CAW-1341.
12. Apart from the said oral evidence, the petitioners have produced the complaint at Ex.P.1, FIR as per Ex.P.2, Police intimation as per Ex.P.3, Panchanama and sketch as per Ex.P.4, Charge sheet as per Ex.P.5, inquest report as per Ex.P.6, Post-mortem report as per Ex.P.7 and Voters ID cards of the deceased as well as petitioners as per Ex.P.8 to P.11.
8 MVC.1231/2013
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13. PW-1 was cross examined, wherein, he has stated that he is not eye witness to the accident. It is admitted by PW-1 that at the time of crossing the road, this accident took place on the middle of the road. It is admitted that there was no Zebra crossing. It is admitted that the Zebra crossing was far from the place of accident. PW-1 has stated that he saw the tempo and also its registration number.
14. The learned counsel for the respondent No.1 with the above said admissions of PW-1 has argued that the deceased herself was responsible for cause of the accident as the accident took place when she was crossing the road, where there was no Zebra crossing. Hence, contended that there is negligence on the apart of the deceased in causing the accident. The learned counsel for the respondent No.1 further argued that when the deceased herself has contributed for the accident and hence awarding percentage of liability has to be attributed for the deceased, for cause of the accident. In support of their arguments, the learned counsel for the respondent No.1 has placed reliance upon the rulings reported in ILR 1998 KAR 1934 (Narasimhaiah vs The General Manager & Another) and ILR 2004 KAR 1104 9 MVC.1231/2013 SCH-16 (Koosappa Poojari vs K.Sadabba and others) I have carefully gone through the above said evidence and also proposition of law laid down in the above said rulings. On careful perusal of cross-examination of PW-1, it is clear that PW-1 was not an eye witness to the incident. Though, PW-1 has stated that the accident took place in the middle of the road. The sketch at Ex.P.4 reveals that the accident took place just abutting to the right side of the road and alphabet 'A' is marked in the sketch, to show, how the offending vehicle caused the accident. Though, this accident took place at the time of crossing the road, but, as per the sketch at Ex.P.4 reveals that the accident took place when the offending vehicle has taken his vehicle to the right side of the road and caused the accident. There is no doubt that there was no Zebra crossing, at the place of accident. In the rulings relied upon by the learned counsel for the respondent No.1, though, it is held that the pedestrian should be held responsible for their negligence while crossing the road. But, in this case, the sketch reveals that the accident took place just abutting to the right side of the road. Admittedly, PW-1 is not eye witness to the accident. The driver of the offending vehicle has not 10 MVC.1231/2013 SCH-16 been examined before this Tribunal. More over, owner was also placed exparte. The IO also not examined before this Tribunal by the respondent No.1.
15. The complaint which is marked as Ex.P.1 reveals that the accident was caused by a Tempo bearing No.CAW- 1341. Further statement of eye witness by name Prabhu S/o.Hanumanthappa also reveals the involvement of offending vehicle in the accident. On the basis of complaint, FIR as per Ex.P.2 was lodged against the driver of offending vehicle. Immediately after the death of Gangamma, intimation of death was given to the concerned jurisdictional Magistrate by the Vijayanagar Traffic police. After investigation, charge sheet was filed against the driver of Tempo for the offence punishable under Sec. 279 and 304(A) of IPC as per Ex.P.5 The inquest report at Ex.P.6 reveals the death of Gangamma was due to the accidental injuries. The Post-mortem report fortifies the said fact. It is to be noted that there must be cogent evidence in order to attribute the contributory negligence on the part of the deceased. Merely, the accident took place in the middle of the road, it cannot be said that the deceased herself has contributed for cause of the accident. 11 MVC.1231/2013
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16. In this case, as per sketch, the accident took place on the right side of the road. The driver of the offending vehicle is not examined before this Tribunal nor they have challenged the charge sheet and FIR filed against the driver. Hence, there must be cogent evidence in order to attribute the contributory negligence. As per the Apex Court recent judgment reported in 2014 Kant MAC 330 (SC) Meera Devi & others Vs. Himachal Road Transportation & others wherein, it was held that there must be cogent evidence in order to attribute the contributory negligence. Hence, in the absence of any contra and cogent evidence, the contributory negligence cannot be considered. Hence, in view of the above facts and circumstances of the case, merely because, the accident took place on the right side of the road, this tribunal cannot come to the conclusion that the deceased has also contributed for cause of the accident. Under the above circumstances, this tribunal can safely come to the conclusion that the accident in question was occurred due to the rash and negligent driving of Tempo by its driver and because of the said accident, the Gangamma died in the 12 MVC.1231/2013 SCH-16 accident. Accordingly, I answer Issue No.1 in the Affirmative ISSUE NO 2:
17. This issue is in respect of the quantum of compensation to be awarded to the petitioners and from whom the same is to be paid.
18. The learned counsel for the respondent No.1 during the court of arguments submitted that the petitioners are residing independently after their marriage and they are not dependent upon the deceased. Hence, the petitioners are not entitled for any compensation under loss of dependency. In order to fortify the said submissions, the learned counsel for the respondent No.1 relied on the rulings reported in 2006 ACJ 2347 (New India Assurance Co.Ltd., vs Ramya Raghavan and another) and AIR 2007 SC 1474 (Smt.Manjuri bera vs Oriental Ins.Co.Ltd.,) I have carefully gone through the above said proposition of law. The Hon'ble High Court in the above said ruling, held that the proof of actual dependency is not necessary. Further, it is held that the legal representatives under Sec.2 of Fatal Accidents Act, 1855, are entitled to seek compensation for loss of estate and 13 MVC.1231/2013 SCH-16 they cannot general damages and loss of dependency. The Hon'ble Apex court in the above said ruling has held that even though the married daughter though not dependent on deceased is entitled to compensation as she comes within the preview of legal representative under Sec.166 of MV Act.
19. The learned counsel for the respondent No.1 has drawn the attention of this tribunal towards cross- examination of PW-1, wherein, he has admitted that his brothers and sisters are residing separately and the daughters after their marriages are residing in their respective husbands house. It is to be noted that under Sec.166 of MV Act, dependency is not only in respect of income. The MV Act being a social legislature, dependency should not be restricted only in respect of income. The petitioners being children of the deceased have to depend upon the mother in sharing their feelings and emotions. The voters ID cards at Ex.P.8 to P.11 reveals that all the petitioners were resided along with the deceased Gangamma. Though the daughters are residing separately after their marriage, but, PW-1 merely, because, he is doing coolie, it cannot be said that he is not dependent upon the income of 14 MVC.1231/2013 SCH-16 the deceased and he is residing separately. There are no documents produced by the learned counsel for the respondent No.1 to show that PW-1 is residing separately and is not dependent on the income of the deceased. Hence, this tribunal has come to the conclusion that PW-1 was dependant on the deceased and the petitioner Nos 2 to 5 are residing separately after their marriages.
20. As per the petition averments and the evidence of PW-1, the deceased was a coolie by profession and earning Rs.5000/-p.m. Absolutely, there are no materials as to the income and avocation of the deceased. In the absence of any documents regarding the income and avocation of the deceased, this tribunal has to determine the notional income of the deceased. This accident took place during the year 2013. Keeping in view that the accident took place during the year 2013 and even by taking into account of standard of living of deceased during 2013, she might have earned a sum of Rs.150/-per day as coolie. Hence, notional income of the deceased is arrived at Rs.4,500/-p.m.
21. The Voter ID card of the deceased produced the at Ex.P.9, which was issued on 1-1-2003. As on 1-1-2003, 15 MVC.1231/2013 SCH-16 deceased Gangamma was aged about 30 years. The inquest report suggests that the deceased was aged about 65 years. The Post-mortem report also reveals the age of the deceased as 63 years. Hence, on the basis of Post-mortem report and inquest report, this tribunal has come to the conclusion that the deceased was aged in between the 63-65 years as on the date of accident.
22. As per the ruling reported in 2013 ACJ 1403 (Rajesh and others vs Rajbir Singh and others) where the death of a person took place, whose age was more than 60years, the future prospects cannot be considered. The age of the deceased was in between 63-65 years. The proper multiplier applicable to the age for 61-65 years is 7. Hence, PW-1 being sole dependant on the deceased, 50% income has to be deducted towards personal expenses of the deceased. Hence, the following calculations:
(i) Notional income arrived at ...Rs.4500/-p.m. Less 50% deducted as personal expenses of the deceased. ...Rs. 4500-2250= ... Rs.2,250/-x12x7= Compensation after multiplier of 7 is applied ... Rs.1,89,000/-16 MVC.1231/2013
SCH-16 The petitioners are entitled for the compensation of Rs.1,89,000/-under the head loss of dependency.
23. In the ruling reported in 2014(2) TAC 744 (SC) wherein, the Hon'ble Apex court awarded a sum of Rs.1,00,000/- towards loss of estate, Rs.1,00,000- towards loss of expectation of life and Rs.50,000/- Funeral expenses. I humbly agree with the priceless of law laid down in the above said ruling. In this case, the deceased was a widow. The petitioners are children of the deceased Gangamma. Hence, awarding compensation towards loss of consortium will not arise.
24. The Apex Court, in the case reported in 2013 ACJ 5800 (Sanobanu Nazirbhai Mirza Vs. Ahmedbad Municipal Transport Service) and also in the recent judgment reported in AIR 2014 SUPREME COURT 706 (Puttamma Vs. Narayana Reddy) awarded Rs.1,00,000/- as compensation to the family members (children and family members other than wife) for loss of love and affection, deprivation of protection, social security etc., and Rs.50,000/- as compensation to the widow of the deceased for loss of love and affection, pains and sufferings, loss of consortium, deprivation of protection, social 17 MVC.1231/2013 SCH-16 security etc., and Rs.10,000/- towards cost incurred on account of funeral and ritual expenses. In this case, since the deceased has left behind her children , I deem it proper to award Rs.1,00,000/- as compensation to the family members (children and family members other than wife) for loss of love and affection, deprivation of protection, social security etc., and Rs.25,000/- towards cost incurred on account of funeral and ritual expenses.
25. The details of compensation I propose to award are as under:
Sl.No. Head of Compensation Amount/Rs.
1. Loss of dependency 1,89,000-00
2. Compensation to the family 1,00,000-00 members (children and family members other than wife) for loss of love and affection, deprivation of protection, social security etc.
3. Cost incurred on account of 25,000-00 funeral and ritual expenses Total 3,14,000-00 In all the Petitioners are entitled for compensation of Rs.3,14,000/-.
Interest:
26. Relying upon a judgment of the Apex Court reported in 2013 AIR SCW 5375 (Minu Rout and others Vs. Satya 18 MVC.1231/2013 SCH-16 Pradyumna Mohapatra and others), with regard to interest at the rate of 9% p.a. on the compensation amount, in para 13 of the judgment, the Apex Court held that Insurance Company is also liable to pay interest at the rate of 9% p.a. from the date of application till the date of payment and also by following the principles laid down in (2011) 4 SCC 481 :
(AIR 2012 SC 100) (Municipal Council of Delhi Vs. Association of Victims of Uphaar Tragedy). In view of the above judgments with regard to the rate of interest, and also it is settled law that while awarding interest on the compensation amount, the Court has to take into account the rate of interest of the nationalized bank and the rate of interest at 9% cannot said to be on the higher side. Accordingly, the petitioners are entitled to interest at the rate of 9% p.a. Liability:
27. While answering issue No.1, it was come to the conclusion, that the accident was occurred on account of rash and negligent driving of Tempo bearing No.CAW.1341 by the owner-respondent No.2. The respondent No.2 insured the Tempo with the respondent No.1 and the policy was in force 19 MVC.1231/2013 SCH-16 as on the date of accident. The respondent No.1 being the insurer and respondent No.2 being owner of the Tempo are jointly and severally liable to pay compensation to petitioners with interest at 9% p.a. However, primary liability is fixed on respondent No.1. Accordingly, issue No.2 is answered partly in the affirmative.
ISSUE No.3:-
28. In view of my above findings, the petition is deserves to be partly allowed. Hence, I proceed to pass the following order:
ORDER The petition filed by the petitioners is allowed in part.
The petitioners are entitled for compensation of Rs.3,1,4,000-/- (Rs. Three lakhs fourteen thousand only)- with interest at the rate of 9% per annum from the date of petition till realisation.
The respondents No.1 and 2 are jointly and severally liable to pay the award amount. However, the primary liability to pay the compensation amount is fixed on the respondent No.1 - Insurance Company and it is directed to pay the compensation amount within two months from the date of this order.
Compensation amount is apportioned as follows:-
Petitioner No.1-son - 20%
20 MVC.1231/2013
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Petitioner No.2-daughter - 20%
Petitioner No.3 - Son - 20%
Petitioner No.4 -Daughter- 20%
Petitioner No.5 - Son 20%
Out of the compensation amount so
apportioned in favour of the petitioner No.1 to 5, shall be released with interest to the petitioners 1 to 5 through A/c payee cheques on proper identification and verification.
Advocate's fee is fixed at Rs.1,000/-.
Draw an award accordingly.
******* (Dictated to the stenographer, transcribed by her, corrected and then pronounced in the open court this the 12th day of February 2016) (SATISH.J.BALI) MEMBER:MACT, Bangalore.
()()()()() ANNEXURE Witnesses examined on behalf of petitioners:
PW.1 : Sunkappa Documents marked on behalf of petitioners:
Ex.P.1 : Copy of complaint
Ex.P.2 : Copy of FIR
Ex.P.3 : Police intimation
Ex.P.4 : Panchanama and sketch
Ex.P.5 : Charge sheet
Ex.P.6 : Inquest mahazar
Ex.P.7 : PM report
Ex.P.8 -11 : Election ID cards of petnrs & deceased
21 MVC.1231/2013
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Witnesses examined on behalf of respondents:
-NIL-
Documents marked on behalf of the respondents:
-NIL-
(SATISH.J.BALI), MEMBER, MACT BANGALORE.