Bangalore District Court
Sri.Jaya Prakash H.A vs Sri.P.Gopal on 13 March, 2023
KABC020257382018
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES, AT BENGALURU.
(SCCH24)
DATED THIS THE 13th DAY OF MARCH 2023
Present: Miss.B.T.ANNAPOORNESHWARI
B.A., L.L.B., L.L.M.
C/c XXII ADDL., SCJ & ACMM,
MEMBER MACT,
BENGALURU.
MVC NO.6273/2018
PETITIONER/S: 1. Sri.Jaya Prakash H.A.,
S/o Ankalabasappa,
Aged about 50 years,
2. Smt.Savitha N.,
W/o Sri Jaya Prakash,
Aged about 43 years,
R/at No.312, 1st cross,
Mathikere, Bangalore560 054.
(By Sri.C.H.Srinivas,
Advocate.)
V/S
2 MVC:6273/2018
SCCH-24
RESPONDENT/S 1. Sri.P.Gopal
S/o Palaniappan,
Aged Major,
R/at No.3/21A, Kudi Street,
Goundampudur, Ariyur (PO),
Namakkal Taluk and District,
Tamilnadu 637001.
(owner of the lorry bearing No.TN
88Y1471)
(Exparte)
2. United India Insurance
Co.Ltd.,
No.2, Bhuvaneswari Complex,
Dr Sankaran road, Namakkal,
Tamilnadu 637001.
Regional office at 5th floor,
Krushi Bhava, Hudson circle,
Nrupathunga road,
Bangalore27.
(Insurer of lorry bearing No:TN 88Y
1471 Policy
No.1709003117P101123211/1 dated
27.09.2017 to 14.04.2018)
(By Sri.B.C.Shivanne Gowda,
Advocate.)
JUDGMENT
This is a Petition filed by the Petitioners under Section 163A of Motor Vehicles Act seeking Compensation 3 MVC:6273/2018 SCCH-24 of Rs.60,00,000/ for the Death of their son Sanchin Kumar H.J. who died in a road traffic accident dated 11.04.2018.
2. The case of the Petitioners in brief is that, on 11.04.2018 at about 4.00 p.m., the deceased Sachin Kumar H.J. was carefully and cautiously riding TVS Apache motorcycle bearing Reg.No.KA16EA4653 alongwith pillion rider i.e., his friend Mr.Karthik from Bangalore to Chitradurga, whey they reached near TumukuruSira NH48 road, opposite of Mahalingeshwara School, Kora village and Hobli, Tumukuru, at that time the driver of the Ashok Leyland lorry bearing Reg.No.TN88Y 1471 came in a rash and negligent manner endangering human life and without giving any indication suddenly put the brake and completely slowed down his lorry endangering to the human life in order to overtake his lorry with another lorry which was going ahead of him, due to 4 MVC:6273/2018 SCCH-24 the said negligent driving on the part of the driver of lorry the deceased had tried to stop his vehicle but unfortunately he had been hit by the back side of the said offending lorry, as a result the deceased sustained external and internal grievous injuries and motor vehicle was damaged very badly. Immediately the deceased was shifted to Govt. Hospital, Tumukuru, wherein admitted as an inpatient from 11.04.2018 to 12.04.2018 and later he was shifted to NIMHANS Hospital, Bangalore, for higher treatment and admitted therein from 12.04.2018 to 14.04.2018 and there he was diagnosed with pancreatic injury, cervical spine injury and thereafter the deceased was shifted to MEDCARE Hospital, treated till 25.04.2018 as inpatient and then shifted to Kasturuba Hospital, Manipal, wherein treated as an inpatient from 26.04.2018 to 18.05.2018 but unfortunately he could not recover of the injuries and succumbed on 18.05.2018. Thereafter the postmortem 5 MVC:6273/2018 SCCH-24 was conducted at Kasturuba Hospital, Manipal and they opined that the deceased died due to the multiple injuries to abdomen and spine as a result of the blunt force trauma caused in the aforesaid accident.
3. It is further case of the Petitioners that before accident the deceased was hale and healthy and was dance artist, performer and instructor and agriculturist and earning a sum of Rs.40,000/ per annum. The petitioners were depending upon the earnings of the deceased. The aforesaid accident was occurred due to the sole negligence and careless driving of the driver of the offending lorry bearing Reg.No.TN88Y1471 but the driver of the lorry in order to escape from his liabilities lodged a false complaint against the deceased in the Kora Police station on 12.04.2018 in Cr.No.69/2018 for the offense punishable u/Sec.279, 337 of IPC and investigating officer blindly and mechanically conducted the investigation and filed the false 6 MVC:6273/2018 SCCH-24 chargesheet against the deceased and owner of the motorbike for the offense punishable u/Sec.279, 304(A) of IPC. Therefore, the Respondents being the RC owner and the insurer of the offending lorry are jointly and severally liable to pay the compensation to them.
4. In response to service of notice issued by this court/Tribunal, the Respondent No.2 has appeared and filed written statement. In spite of due service of summons, the Respondent No.1 did not appear and hence placed exparte.
5. The Respondent No.2 insurance company in the written statement have denied the case of the petitioners as false, admitted issuance of policy but their liability if any is subject to terms and conditions and submitted that the rider of the motorcycle ride the same along with pillion rider without having valid and effective driving license to 7 MVC:6273/2018 SCCH-24 ride the same and due to over speed, the rider lost the control over the said motorcycle and dashed against the left hind portion of the lorry from behind and further based on the complaint and on thorough investigation the concerned police have filed the chargesheet against the rider of the motorcycle for the negligence and also against the owner of the motorcycle and hence the owner of the motorcycle alone is the necessary parties to this petition. Further submitted that the driver of the lorry was not having a valid and effective driving license, which is in contravention of the policy conditions and also the Motor Vehicle Act. There is non compliance of relevant provisions of MV Act. Therefore, prayed for dismissal of the petition against them.
6. On the basis of the above pleadings, the below mentioned issues are framed:
8 MVC:6273/2018 SCCH-24
1. Whether the Petitioners prove that they are the legal representative and dependents of the deceased Sri.Sachin Kumar H.J.?
2. Whether the petitioners prove that the deceased Sri.Sanchin Kumar H.J. had died due to the injuries sustained in the road traffic accident that occurred on 11.04.2018 at about 4.00 p.m., on TumakurSira NH48 road, Opp.Mahalingeshwara School, near Kora village, Tumakuru, due to the rash and negligent driving of the lorry bearing Reg.No.TN88Y1471 by its driver as alleged?
3. Whether the petitioners are entitled for compensation? If so, how much and from whom?
4. What Order or Award?
7. Prior the petition is preferred under Section 166 of IMV Act and later the petitioners got amended the petition as petition u/Sec.163A of M.V. Act and hence the issue No.2 is to be recast and accordingly, it is recast as under;
"Whether the petitioners prove that the deceased succumbed to the injuries sustained in a motor vehicle accident that occurred on 11.04.2018 at about 4.00 p.m., on Tumkuru 9 MVC:6273/2018 SCCH-24 Sira NH48 road, opposite Mahaligeshwara school, near Kora village, Tumkuru, due to involvement/use of lorry bearing Reg.No.TN88 Y1471?"
8. The petitioners in order to prove their case at first have examined the petitioner No.1 Sri.Jaya Prakash who is father of the deceased as PW.1 and got marked documents as per Exs.P.1 to P.20 and Sri.Karthik rider of the motorcycle, is examined as PW.2 but as the petition got converted to a petition u/Sec.163A of MV Act and hence later their evidence got discarded as per order dated 13.09.2022. Thereafter in support of their present petition the petitioners have got examined the petitioner No.2 as PW.1 and adopted the documents already marked as Ex.P1 to P20. On the other side, the Respondents did not examine any witness nor produced any documents on their behalf.
10 MVC:6273/2018 SCCH-24
9. Heard arguments of both Counsel and perused the materials on record.
10. My finding to the above issues are as follows: Issue No.1: 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
11. Issue No.1: It is the case of the Petitioners that, the Petitioner No.1 is the father and Petitioner No.2 is the mother of the deceased - Sri.Sachin Kumar H.J.. In this regard, the Petitioners to prove this relationship have examined the second Petitioner as PW.1. The PW.1 has specifically deposed this relationship in her chiefexamination. Apart from that, to prove the relationship the Petitioners have also produced notarized copies of Voter ID card, DL of the 11 MVC:6273/2018 SCCH-24 deceased and Ration card as per Exs.P.18 to 20. There is no contrary to these documents from the respondents. In Ex.P.18 in the Voter ID card and DL of the deceased his father's name is mentioned as Jaya Prakash. In Ex.P.20 family ration card of the petitioners the names of the petitioners and the deceased is mentioned along with their relationship. Further, these documents are public documents and they have got initial presumptive value under law. These documents have not been seriously disputed by the Respondents. The Respondent No.2 has not produced any contrary documents to dispute and rebut the contents of documents produced by the Petitioners. As such, there are no reasons to discard the oral and documentary evidence produced by the Petitioners. Under such circumstances, relying upon the oral evidence of PW.1 and documents, this court is of the opinion that the Petitioner Nos.1 and 2 are the parents of the deceased 12 MVC:6273/2018 SCCH-24 Sachin Kumar H.J.. Accordingly, Issue No.1 is held in the affirmative.
12. ISSUE No.2: The petitioners have filed this petition u/Sec.163A of the Motor Vehicles Act, 1988. Under these circumstances the petitioners need not prove the rash or negligence on the part of the offending vehicle but it is sufficient that they prove the occurrence of the accident by involvement of the vehicle resulting in injuries and death of the deceased. In support of their case the petitioners have got examined the second petitioner as PW.1 who has reiterated the petition averments.
13. Further, it is pertinent to note that in a petition filed under Section 163A of MV Act, the question to be considered by the Tribunal is the involvement of the vehicle against which the compensation is sought for and not 13 MVC:6273/2018 SCCH-24 whether there is rash or negligence on part of the rider/driver of the vehicle against which the compensation is claimed. The aspect of negligence has no role whatsoever to decide question of the entitlement for compensation. Section 163A of the Act reads as under;
"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".
14. In a decision reported in ILR 2008 KAR 1249 in the case of Oriental Insurance Co, Ltd. Vs Salma and others Hon'ble lordships have held that;
"a petition under section 163A of the act is maintainable even in case 14 MVC:6273/2018 SCCH-24 where negligence is on the part of the victim"
15. Hon'ble Apex Court in a decision reported in (2004) 5 SCC 385 rendered in Deepal Girihsbhai Soni and Ors Vs United India Insurance co, ltd., held that;
"Section 163A also covers the cases where negligence is even on the part of the victim held excluding the defense of contributory negligence".
16. In Civil Appeal No.9694/13 between United India Insurance Vs Sunil Kumar and another it is held by Hon'ble Supreme court that;
"....in a proceedings under section 163A of IMV act it is not open for the insurer to raise any defense of negligence on the part of the victim".
17. In the case of 'United India Insurance Vs. Sunil Kumar and Another' the Hon'ble Apex Court has held as under;
15 MVC:6273/2018 SCCH-24 "........in a proceedings under Section 163A of IMV Act it is not open for the insurer to raise any defence or plea of negligence on the part of the victim".
Further, in para No.8 of the said judgment, it is clearly observed by Hon'ble Apex Court that, "... it is clear that grant of compensation under Section 163A of the Act on the basis of the structured formula is in the nature of final award and the adjudication there under is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle/s involved in the accident. This is made explicit by Section 163(a)(2). Though the aforesaid Section of the act does not specifically exclude the possible defence of insurer based on the negligence of the claimant as contemplated under Section 140(4), to permit such defence to be introduced by the insurer and or to understand the provision of Section 163A of the act to be contemplating any such situation would go contrary to the very legislative object behind introduction of section 163A of the act, namely final compensation with a limited time frame on the basis of the structured formula to overcome situation where the claims of the compensation on the basis of the fault liability was taking an unduly long time. In fact, to understand the Section 163A of the act to permit the insurer to raise the defense of negligence would be to bring a proceeding under section 163A of the act at par 16 MVC:6273/2018 SCCH-24 with the proceedings under section 166 of the act which would not only be self contradictory, but also defeat the very legislative intention."
18. In view of above provision 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 case, it is pertinent to note that nowhere in the written statement the Second Respondent has denied the involvement of lorry bearing Reg.No.TN88Y1471 in the accident. The PW.1 has deposed that the accident occurred as the driver of aforesaid lorry suddenly put brake due to which the rider of TVS Apache motorcycle bearing Reg.No:KA16EA4653 lost control and hit to the back left side rear portion of the lorry bearing Reg.No.TN88Y1471 and accident occurred, due which his son sustained injuries and succumbed to the said 17 MVC:6273/2018 SCCH-24 injuries and death of her son is arisen out of use of the lorry bearing Reg.No.TN88Y1471. In the crossexamination of PW.1 nothing worth is elicited to disprove the involvement of the lorry bearing Reg.No.TN88Y1471 but suggestions put with regard to negligence on the part of rider of the motorcycle bearing No:KA16EA4653 which is not much relevance when the petition is got amended to a petition under Section 163A of M.V. Act.
19. Apart from that the PW.1 has also produced the documents such as FIR and Complaint in Cr.No.69/2018 of Kora Rural Police Station, requisition of Sec.304A of IPC, Inquest report, chargesheet, spot panchanama, spot sketch, IMV report and PM report as per Exs.P.1 to P.9 which are public documents and they have got presumptive value under law. The Ex.P.5 which is the charge sheet filed in Cr.No.69/2018 clearly discloses that the investigation officer has filed charge sheet after detail investigation which shows 18 MVC:6273/2018 SCCH-24 that due to rash and negligent act of the deceased who was riding the TVS Apache Motorcycle bearing Reg.No.KA16 EA4653 the accident occurred and there was also involvement of the Lorry bearing Reg.No.TN88Y1471. As such, there are no reasons to disbelieve the version of the Petitioners. Under these circumstances, relying upon the oral evidence of PW.1 coupled with the documents produced as per Exs.P.1 to P.9, this court is of the opinion that the accident was occurred due to involvement or use of the Lorry bearing No:TN88Y1471 in the accident and in that the deceased sustained grievous injuries and succumbed to the said injuries. Accordingly, recast issue No.2 is held in the affirmative.
20. ISSUE No. 3: The PW.1 has specifically deposed before this court that due to the untimely death of the deceased, they have lost the bread earner of their family and their loving son.
19 MVC:6273/2018 SCCH-24 They have pleaded that due to the accidental injuries their son deceased Sachin Kumar H.J. died during the treatment in the hospital and PM was done at Kasturuba Hospital, and later the cremation of their deceased son was conducted. This court while discussing the issue No.2 has come to the conclusion that the accident occurred due to the involvement of the Lorry bearing Reg.No.TN88Y1471. Under such circumstances, the Petitioners are entitled for compensation.
Monthly income
21. According to the Petitioners the deceased was a 3rd year science degree student studying at Sahyadri Science College, Shovamogga and he was bright student and he was dance artist, performer and instructor and agriculturist and was earning Rs.40,000/ per month. In this regard the PW.1 has deposed reiterating the same in his examination in chief. The respondent No.2 in the 20 MVC:6273/2018 SCCH-24 crossexamination except suggestions of denial of said statement not elicited any contrary evidence from the mouth of the PW.1. Further the respondent No.2 has not lead any evidence to prove their defence or placed contrary documents. Under these circumstances, it is justified if the income of the deceased is considered as claimed i.e. Rs.40,000/ per annum. Therefore, the petitioners are entitled for the following compensation:
Age of the deceased
22. In so far as age of the deceased is concerned, the Petitioners have produced notarized copy of Voter's ID Card of the deceased as per Ex.P.18. As per this document, his date of birth is 19.02.1996. The accident was occurred on 11.04.2018. As such his age was 22 years as on the date of his death. Therefore, the age of the deceased is considered 22 years.
21 MVC:6273/2018 SCCH-24
i) LOSS OF DEPENDENCY As per the II schedule the multiplier applicable to his age is 17. His annual income is considered as Rs.40,000/. As per the note mentioned under the table given in the second schedule, 1/3 rd of income of the deceased has to be deducted towards his personal and living expenses. If 1/3rd income is deducted then it comes to Rs.26,668/ (Rs.40,000/ Rs.13,333/). Therefore, the total loss of dependency would be Rs.4,53,356/ (Rs.26,668/ X 17= Rs.4,53,356/).
ii) TRANSPORTATION AND FUNERAL
EXPENSES:
In so far as the funeral and transportation expenses are concerned, the Petitioners have pleaded that they have spent more than Rs.15,00,000/ towards medical expenses, transportation of dead body, funeral, obsequies and other incidental expenses. No documents are 22 MVC:6273/2018 SCCH-24 produced in this regard. As per the item No.3(i) of the second schedule funeral expenses to be awarded is Rs.2,000/. Therefore, the petitioners are awarded a sum of Rs.2,000/ under this head.
(iii) MEDICAL EXPENSES: In so far as the medical expenses is concerned, the petitioners have claimed that they have spent Rs.15,00,000/ towards treatment of the deceased Sachin Kumar who was treated at Govt. Hospital, Tumukuru, wherein admitted as an inpatient from 11.04.2018 to 12.04.2018 and later he was shifted to NIMHANS Hospital, Bangalore for higher treatment on 12.04.2018 to 14.04.2018 and there he was diagnosed with pancreatic injury, cervical spine injury and thereafter the deceased was shifted to MEDCARE Hospital, treated till 25.04.2018 as inpatient and then shifted to Kasturuba Hospital, 23 MVC:6273/2018 SCCH-24 Manipal, wherein treated as an inpatient from 26.04.2018 to 18.05.2018 but unfortunately he could not recovered of the injuries and succumbed on 18.05.2018. In this regard the petitioners have produced 4 scan report, discharge summary (Tumkuru Hospital), case record, discharge summary issued by Medi care Hospital, 37 prescriptions, 141 Medical bills for amounting Rs.9,33,964/ and 10 CT scan films as per Exs.P.11 to 17. In the crossexamination nothing worth is elicited. But admittedly the petition is under Section 163A of M.V. Act. As per the second schedule applicable to the petition filed under Section 163A of M.V. Act, at point No.3 in Note under the head of General Damage (in case of death): at clause (iv) it is clearly mentioned as, '(iv) Medical Expenses Actual expenses incurred before death supported by bills/vouchers but not exceeding Rs.15,000/ as one 24 MVC:6273/2018 SCCH-24 time payment'. Therefore, the Petitioners are only entitled for a sum of Rs.15,000/ under this head.
iv) LOSS OF ESTATE:
As mentioned above, the deceased was earning a sum of Rs.40,000/ per annum. Out of this, he was getting 1/3rd of his income towards personal expenses. Such being the case, out of this, certainly he would have saved some amount and created estate in favor of the Petitioners.
Therefore, the Petitioners are entitled for a sum of Rs.2,500/ under the head of loss of estate.
v) LOSS OF CONSORTIUM:
The Petitioner Nos.1 and 2 are the parents of the deceased. As per Note No.3(ii) of second schedule loss of consortium is mentioned to be awarded as Rs.5,000/ in case the claimant is spouse. As the petitioners are
25 MVC:6273/2018 SCCH-24 parents and hence they are not entitled for any compensation under this head. As such, in total, the Petitioners are entitled for a sum of Rs.4,72,856/ along with interest at the rate of 6% per annum from the date of this petition till the date of deposit.
Liability:
23. As discussed above, the Respondent No.2 insurer has failed to prove its defence. Under these circumstances, it is very clear that Respondents being the owner and insurer of the offending vehicle are jointly and severally liable to pay the said compensation to the petitioner. However, as the Petitioners have proved the existence of policy and its validity as on the date of accident, the insurer Respondent No.2 has primary liability to satisfy the award. The Petitioners have claimed an amount of Rs.60,00,000/, but they are entitled only for a
26 MVC:6273/2018 SCCH-24 sum of Rs.4,72,856/. Therefore the Petition is liable to be allowed in part. Accordingly I answer Issue No.3 is partly in the Affirmative.
24. Issue No.4: For the reasons and discussions made above and findings to the above issues, this Tribunal proceeds to pass the following: ORDER The Petition filed by the Petitioners under Section 163A of Motor Vehicles Act is hereby allowed in part with cost.
The Petitioners are entitled for Compensation of Rs.4,72,856/ (Rupees Four Lakhs Seventy Two Thousand and Eight Hundred and Fifty Six only) alongwith interest at the rate of 6% p.a., from the date 27 MVC:6273/2018 SCCH-24 of Petition till the date of deposit of the Award amount. The Respondents Nos.1 and 2 are jointly and severally liable to pay compensation to the Petitioners.
However, the Respondent No.2 - insurer is directed to deposit the Award amount and interest before this Tribunal within 60 days from the date of this Judgement.
On deposit of the award amount and interest, as the petitioners have incurred huge amount for medial expenses and hence the entire compensation amount is ordered to be released in favour of petitioner Nos.1 and 2 equally with proper identification and due acknowledgment as per rules. The Advocate's fee is fixed at Rs.1000/.
28 MVC:6273/2018 SCCH-24 Draw Award accordingly.
(Dictated to the stenographer on line, revised, corrected and then pronounced in the open court this the 13th day of March 2023.) (B.T.ANNAPOORNESHWARI) C/c XXII Addl. SCJ & ACMM., Benglauru ANNEXTURE List of witnesses examined on behalf of the Petitioner:
PW.1: Sri.Jayaprakash (Discarded) PW.2: Sri.Karthi (Discarded) PW.1: Smt.Savitha N. List of witnesses examined on behalf of the Respondents:
Nil List of documents marked on behalf of the Petitioner:
Ex.P1 True copy of FIR Ex.P2 True copy of Complaint Ex.P3 Requisition letter to include IPC Sec.304A Ex.P4 True copy of Inquest report Ex.P5 True copy of Chargesheet 29 MVC:6273/2018 SCCH-24 Ex.P6 True copy of Spot panchanama Ex.P7 True copy of Spot sketch Ex.P8 True copy of IMV report Ex.P9 True copy of PM report
Ex.P10 Death certificate of deceased Sachin Kumar Ex.P11 4 scan report Ex.P12 Discharge summary (Tumukur Hospital) Ex.P13 NIMHANS Emergency case record Ex.P14 Discharge summary issued by Medicare Hospital Ex.P15 37 Prescriptions Ex.P16 141 Medical bills for Rs.9,33,964/ Ex.P17 10 CT scan films Ex.P18 Notarized copy of Voter ID card of the deceased (Compared with original and returned) Ex.P19 Notarized copy of DL of the deceased (Compared with original and returned) Ex.P20 Copy of Ration card (Compared with original and returned) 30 MVC:6273/2018 SCCH-24 List of documents marked on behalf of the Respondents:
Nil (B.T.ANNAPOORNESHWARI) C/c XXII Addl. SCJ & ACMM., Benglauru