Bangalore District Court
Smt.Gowramma N vs C.V.Bhanu Murthy Reddy on 8 August, 2016
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS TRIBUNAL,
BANGALORE CITY.
SCCH-14
PRESENT: Basavaraj Chengti., B.Com.,LL.B.,(spl)
Member, MACT,
XVI ADDL. JUDGE,
Court of Small Causes,
BANGALORE.
MVC No.3636/2015
Dated this the 8th day of August 2016
Petitioner/s : 1. Smt.Gowramma N,
W/o Gajendra @ Gajendra Naik.R
Aged about 28 years,
2. Master Manohar.G.
W/o Gajendra @ Gajendra Naik.R
Aged about 11 years,
3. Master Mahesh.G
W/o Gajendra @ Gajendra Naik.R
Aged about 09 years,
4. Kum.Mamatha.G
W/o Gajendra @ Gajendra Naik.R
Aged about 08 years,
(Petitioner No.2 to 4 are minors
Represented by their mother/natural
guardian Smt.Gowramma.N)
5. Lachchi Bai
W/o Late Rama Naik
Aged about 62 years.
All are residing at No.17,
J.P.Nagar, Jaraganahalli,
Bengaluru-560078.
SCCH-14 2 MVC No.3636/2015
And Permanent residents of
Chikkajogihalli,
Kudlagi Taluk,
Bellary District.
(By pleader Sri UMV)
V/s
Respondent/s 1. C.V.Bhanu Murthy Reddy
Swachatha Corporation Pvt Ltd.
No.8, 14th main,
Venkateshwara Layout,
Old Madiwala,
Bengaluru-560068.
2. HDFC ERGO General Ins.Co.Ltd.,
Embasy Classic, 3rd floor,
No.11, Vittalmallya Road,
Bengaluru-560001.
(R1- By pleader Sri SP,
R2-By pleader Sri RSS)
XVI ADDL.JUDGE,
Court of Small Causes & MACT,
Bangalore.
SCCH-14 3 MVC No.3636/2015
JUDGMENT
This claim petition is filed by the petitioner U/Sec.166 of Motor Vehicles Act for grant of compensation for the death of Sri.Gajendra @ Gajendra Naik.R S/o Rama Naik in a road traffic accident.
2. Brief averments of the petition are as under:
The petitioners are the wife, children and mother of the deceased Gajendra @ Gajendra Naik who was aged 35 years, was working as sheet centering worker in building construction and was earning Rs.750/- per day. On 05.07.2015 at about 12.15 pm, the deceased was riding motorcycle bearing No.KA-04-EB-1230 on Baguru-Koppa main road by observing all traffic rules and regulations. When he reached near NICE road bridge, at that time, BBMP lorry bearing No.GJ-06-DH-0387 driven by its driver in high speed and rash and negligent manner, endanger to human life without observing traffic rules and regulations came and dashed to the motorcycle. Due to the impact, the deceased fell down on the road, front right side wheel of lorry ran over the left leg of the deceased and front portion of the motorcycle and the deceased sustained grievous fatal injuries all over the body. Immediately, he was shifted to nearest Blossom Multi specialty Hospital, Mangammanapalya Main Road, Bommanahalli, Bengaluru. Inspite of treatment, Gajendra @ Gajendra Naik succumbed to the injuries at 05.10 p.m., on the same day. After post mortem, dead body was handed over to the petitioners who has conducted cremation. The petitioners spent Rs.50,000/- towards treatment, Rs.50,000/- for SCCH-14 4 MVC No.3636/2015 funeral and obsequies and Rs.30,000/- for transportation of dead body. The deceased was the bread earner of the family. Due to his sudden death, the petitioners have suffered mental shock and agony, lost love and affection. The petitioner no.1 lost her beloved husband, petitioner no.2 to 4 lost their father and petitioner no.5 lost her son's shelter and care at her old age. Hulimavu Traffic police have registered Cr.No.54/2015 against the driver of BBMP lorry bearing No.GJ-06-DH-0387 for the offences punishable U/s 279 and 304-A of IPC. The respondents are the owner and insurer of the said vehicle and are jointly and severally liable to pay compensation. Hence, the petitioners have sought for awarding compensation of Rs.30,00,000/- with cost and interest.
3. In pursuance of the notices, the respondents have appeared before the Court through their respective counsel and filed statement of objections separately. They have denied the case of the petitioners as false and contended that the compensation claimed by the petitioners is highly excessive, exorbitant, arbitrary and speculative. The respondent no.1 has contended that the alleged accident has occurred due to rash and negligent riding of the motorcycle by the deceased who was not holding a valid driving licence at the time of accident, that BBMP lorry bearing No.GJ-06- DH-0387 was duly insured with the respondent no.2 and policy was in force on the date of accident, that his driver was holding a valid driving licence to drive the vehicle. Hence, he has sought for dismissal of the petition as against him with cost.
SCCH-14 5 MVC No.3636/2015The respondent no.2 has admitted the issuance of policy in favour of the respondent no.1 in respect of BBMP lorry bearing No.GJ-06-DH-0387 and contended that the respondent no.1 and concerned police have not complied with their mandatory duties, that the driver of lorry was not holding a valid and effective driving licence and the lorry was not having a valid and effective fitness certificate and permit on the date of accident and as such the respondent no.1 has violated the terms and conditions of the policy, that the insured lorry was not involved in the accident, that the said lorry was being driven in a reasonable speed and careful manner on the date of accident and there was no rashness or negligence on the part of the said driver, that the accident has occurred due to sole negligence on the part of the deceased who without having proper look out of vehicular traffic on the road rode the motorcycle in reckless manner and caused the accident, that the petitioners are not the legal heirs of the deceased. He has denied the age, occupation and income of the deceased. Hence, he has sought for dismissal of the petition with cost.
4. On the basis of above pleadings, the following issues were framed:
ISSUES
1. Whether the petitioners prove that Gajendra @ Gajendra Naik s/o Ram Naik died due to injuries sustained by him in an accident occurred on
05.07.2015 at about 12.15 p.m., on Beguru-Koppa Main Road, near Nice Road bridge, Bangalore, arising due to rash and negligent driving of driver of Lorry bearing No. GJ-06-DH-0387?
SCCH-14 6 MVC No.3636/20152. Whether the petitioners are entitled for compensation? If so, how much and from whom?
3. What Order or Award?
5. During the evidence, the petitioners have examined the petitioner no.1 as PW.1 and examined a witness as PW.2. They have got marked documents as Ex.P1 to 14. The respondents have not adduced any evidence on their behalf.
6. Heard the arguments and perused the records.
7. My findings on the above issues are as under:-
Issue No.1 : In affirmative.
Issue No.2 : In affirmative, for Rs.19,53,000/-
from the respondent No.2.
Issue No.3 : As per final order :
for the following:
REASONS
8. ISSUE NO.1: PW.1:Smt.Gowramma is the petitioner no.1 and she has reiterated the averments of the petition and stated that her husband Gajendra @ Gajendra Naik died due to injuries sustained by him in the accident arising due to rash and negligent driving of the driver of BBMP lorry bearing No.GJ-06-DH- 0387. PW.2:Arun has deposed regarding occupation and income of the deceased. Hence, his evidence is not helpful to decide this issue. In cross examination, PW.1 has admitted that she has not personally seen the accident. Only on the basis of said admission, SCCH-14 7 MVC No.3636/2015 evidence of PW.1 cannot be disbelieved. Her evidence regarding death of Gajendra @ Gajendra Naik due to injuries sustained by him in the accident is admissible and believable. Except bare denials, nothing is elicited from PW.1 regarding cause for death of her husband.
9. Copy of inquest panchanama and copy of PM report are at Ex.P5 and 6. On perusal of said documents, it reveals that Gajendra @ Gajendra Naik died due to injuries sustained by him in road traffic accident. There is nothing on record to disbelieve the contents of inquest panchanama and PM report. There was no other reason for the death of deceased. The respondents have impliedly admitted the occurrence of the accident, but they have denied the negligence on the part of the driver of BBMP lorry bearing No.GJ-06-DH-0387 for the occurrence of said accident. Hence, I hold that death of Gajendra @ Gajendra Naik was due to injuries caused to him in the said accident.
10. The petitioners have produced copies of police records namely FIR with complaint, spot panchanama, sketch, IMV report, charge sheet and police intimation to corroborate the evidence of PW.1 regarding manner of accident which are marked as Ex.P1 to 4, 7 and 8. On perusal of the said police records, it reveals that Hulimavu Traffic police have registered Cr.No.54/2015 on 15.07.2015 at 08.15 p.m., on the basis of information given by one Lokesh Naik, investigated the matter and filed charge sheet against the driver of BBMP lorry bearing No.GJ-06-DH-0387 for the SCCH-14 8 MVC No.3636/2015 offences punishable U/Sec.279, 304-A of IPC and U/Sec.134 r/w Sec. 187 of MV Act. There was no delay in lodging complaint. The injured was taken to hospital immediately with the history of RTA. Panchanama and sketch disclose that the motorcycle was coming from south to north, whereas the lorry was proceeding in opposite direction i.e., north to south. The accident has occurred on the western portion of the road which was correct side for the motorcycle and wrong side for the lorry. IMV report reveals that both the vehicles were damaged in the accident. Brake system of the said vehicles was in order. It is opined by the IMV authority that the accident was not due to mechanical defects. The lorry was proceeding on the wrong side of the road. The driver of lorry could have avoided the accident by applying brakes and by driving his vehicle on the correct side of the road. There is no direct or indirect evidence regarding the negligence of the deceased for the occurrence of the accident. Charge sheet filed by the police indicates the negligence on the part of the driver of BBMP lorry bearing No.GJ-06-DH-0387. There is nothing on record to disbelieve the contents of charge sheet which corroborate the evidence of PW.1. Thus, the oral evidence of PW.1 and contents of Ex.P1 to 8 substantiate the averments of the petition regarding manner of accident and death of Gajendra @ Gajendra Naik due to accidental injuries. The respondents have failed to prove their defence and to disprove the case of the petitioners. The evidence of record establishes that the accident has occurred due to sole negligence of the driver of BBMP lorry bearing No.GJ-06-DH-0387 in which Gajendra @ Gajendra Naik sustained fatal injuries and SCCH-14 9 MVC No.3636/2015 died later in the hospital. Hence, I hold that the petitioners have succeeded to prove this issue and I answer the issue in affirmative.
11. ISSUE NO.2: The petitioners have pleaded that they are the wife, children and mother of the deceased Gajendra @ Gajendra Naik. The respondents have disputed the status of the petitioners in respect of the deceased. The petitioners have examined PW.1:Smt.Gowramma who has stated that she is the wife, the petitioner no.2 to 4 are children and the petitioner no.5 is mother of the deceased Gajendra @ Gajendra Naik. The petitioners have produced copy of Voter ID of the petitioner no.1 and 5 and study certificates of the petitioner no.2 to 4 to corroborate the evidence of PW.1 which are marked as Ex.P9 to 11. The said oral and documentary evidence reveal that the petitioners are the wife, children and mother of the deceased Gajendra @ Gajendra Naik. Inquest panchanama at Ex.P5 supports the oral and documentary evidence produced by the petitioners regarding their relationship with the deceased. The respondents have not adduced any evidence to rebut the oral and documentary evidence adduced by the petitioners. Nothing is elicited from PW.1 to disbelieve her evidence in that regard. Hence, I have no hesitation to hold that the petitioners are the wife, children and mother of the deceased. They are Class-I heirs. The petitioner no.2 to 4 are minors and the petitioner no.5 is old aged. Hence, I am of the opinion that the petitioners are the dependants of the deceased and they are entitled for compensation under all heads.
SCCH-14 10 MVC No.3636/201512. It is pleaded that the deceased was aged 35 years, was a sheet centering worker in building construction and was earning Rs.750/- per day. The petitioners have relied upon police records and study certificates of the deceased to prove his age. They have examined PW.2:Arun to prove his occupation and income. Age of the deceased is shown as 35 years in police records and 34 years in medical records. Study certificates disclose that the date of birth of the deceased is 01.08.1980. There is nothing on record to disbelieve the date of birth is shown in study certificates. Hence, I hold that the deceased was aged 34 years as on the date of accident. Appropriate multiplier is 16.
13. Evidence of PW.1 is support by the oral evidence of PW.2:Arun regarding occupation and income of the deceased, but the petitioners have not produced pay slip, bank pass book and salary certificate to prove the income of the deceased. However, contents of inquest panchanama at Ex.P5 corroborate the evidence of PW.1 and 2 regarding occupation of the deceased. There is nothing in record to disbelieve the oral evidence of PW.1 and 2 and contents of Ex.P5. Hence, I hold that the deceased was working as a sheet centering worker in building construction work. In the absence of material document, the evidence of PW.1 and 2 regarding income of the deceased cannot be believed. Under the circumstances, the income of the deceased shall have to be assessed notionally. The deceased was aged 34 years. He was a sheet centering worker. I am of the opinion that if the income of the deceased is considered as Rs.8,000/- per month, it will meet SCCH-14 11 MVC No.3636/2015 the ends of justice. His annual income comes to Rs.96,000/-. The petitioners are the dependants of the deceased. Looking to the number of dependants, it can be said that there shall be deduction of 1/4th amount towards personal expenses of the deceased. After deduction of 1/4th amount, the income of the deceased comes to Rs.72,000/-. The deceased was aged 34 years. Though, he was not getting fixed wages, there will be increase in the income from time to time. Hon'ble Supreme Court has held in ruling reported in Munnalal Jain and Anr Vs Vipin Kumar Sharma & Ors) and our Hon'ble High Court has held in ruling reported in ILR 2015 KAR 3793 (Smt.M.R Sushma Vs., N.Muniraja & Ors.,) that there shall be addition towards future prospects @50% if the deceased was aged less than 40 years. The said rulings are applicable to this case. If 50% amount is added towards future prospects, total income of the deceased comes to Rs.1,08,000/- per annum. Then, loss of dependency of the petitioners would be Rs.1,08,000X16=Rs.17,28,000/-.
14. The petitioners have lost love and affection and estate of the deceased. They have spent amount for transportation of dead body and funeral expenses. The petitioner no.1 has lost marital life. The petitioners have produced advance receipt of Blossom Hospital for Rs.5,000/- and Ambulance bill of Rs.14,520/- which are marked as Ex.P13 and 14. There is nothing on record to disbelieve the said bills, but final bill of Blossom Hospital is not produced. Hence, I am inclined to award a compensation of Rs.10,000/- towards medical expenses, SCCH-14 12 MVC No.3636/2015 Rs.15,000/- towards transportation of dead body and Rs.25,000/- towards funeral expenses, Rs.75,000/- towards loss of love and affection and Rs.75,000/- towards loss of estate. The petitioner no.1 is further entitled for a compensation of Rs.25,000/- towards loss of consortium. Thus, the petitioners are entitled for just and reasonable compensation as under:
1 Loss of dependency Rs.17,28,000/- 2 Medical expenses Rs. 10,000/-
3 Transportation of dead Rs. 15,000/-
body 4 Funeral expenses Rs. 25,000/-
5 Loss of love and Rs. 75,000/-
affection 6 Loss of estate Rs. 75,000/-
7 Loss of consortium Rs. 25,000/-
TOTAL Rs.19,53,000/-
Hon'ble Supreme Court in Civil Appeal No.3238/2015 (arising out of SLP (C) 1865/2014 (Chanderi Devi and Anr., Vs. Jaspalsingh & Ors.,) and Hon'ble High Court in MFA No.2326/2016 (Annapurna & Ors., G.Ashawathraya & Anr.,) have held that rate of interest shall be @9% p.a., Hence, I hold that the petitioner is entitled for interest @9% p.a., from the date of petition till the date of payment.
15. The respondents are the owner and insurer of lorry bearing No.GJ-06-DH-0387. The accident has occurred due to rash and negligent driving of the driver of said vehicle. Therefore, the respondents are jointly and severally liable to pay compensation to SCCH-14 13 MVC No.3636/2015 the petitioners. The respondent no.2 has not produced any evidence to prove his defence that the respondent no.1 has violated the terms and conditions of the policy. However, it is admitted that the policy was in force on the date of accident. Hence, the respondent no.2 is liable to pay the above calculated amount with interest. The petitioners are entitled to share the amount with proportionate interest as under:
The petitioner No.1 : Rs.6,03,000/-
The petitioner No.2 to 4 : Rs.4,00,000/- each The petitioner no.5 : Rs.1,50,000/-
Hence, I answer the issue as above.
16. ISSUE NO.3: In view of above discussion and findings, I proceed to pass the following:
ORDER The petition filed by the petitioners U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioners are entitled for a compensation of Rs.19,53,000/- with interest @ 9% per annum from the date of petition till the date of payment.
The respondents are jointly and severally liable to pay to the petitioners a compensation of Rs.19,53,000/- with interest. In view of policy, the respondent no.2 is directed to deposit the amount SCCH-14 14 MVC No.3636/2015 before court within one month from the date of order.
The petitioners are entitled to share the compensation as under;
The petitioner No.1 : Rs.6,03,000/- The petitioner No.2 to 4 : Rs.4,00,000/- each The petitioner no.5 : Rs.1,50,000/-
After deposit of the amount, Rs.2,00,000/-out of the share of the petitioner no.1 and Rs.50,000/- out of share of the petitioner No.5 shall be deposited in their respective names in any nationalized, scheduled or co-operative bank for a period of 3 years. Entire share of the petitioner No.2 to 4 shall be deposited in the said bank under the guardianship of the petitioner no.1 till they attain majority. Balance amount of the share of the petitioner no.1 and 5 with interest shall be released in their favour through account payee cheques with proper identification.
Advocate's fee is fixed at Rs.5,000/-. Draw award accordingly.
(Dictated to the Stenographer, transcribed by him and then corrected by me and pronounced in the open court, on this the 8th day of August 2016.) (Basavaraj Chengti) XVI ADDL.JUDGE, Court of Small Causes & MACT, Bangalore.SCCH-14 15 MVC No.3636/2015
ANNEXURE WITNESSES EXAMINED AND DOCUMENTS MARKED FOR PETITIONERS AND RESPONDENTS:
PW.1 Smt.Gowramma
PW.2 Arun
Respondent' s NIL
Ex.P1 - Copy of FIR with complaint
Ex.P2 - Copy of Spot Panchanama
Ex.P3 - Copy of Sketch
Ex.P4 - Copy of IMV Report
Ex.P5 - Copy of Inquest Panchanama
Ex.P6 - Copy of PM Report
Ex.P7 - Copy of Charge Sheet
Ex.P8 - Copy of Police Intimation
Ex.P9 - Copy of Voter ID of petitioner no.1
Ex.P10 - Copy of Voter ID of petitioner no.5
Ex.P11 - Study Certificates of petitioner no.2 to 4(3 in nos.)
Ex.P12 - Study Certificates of deceased
Ex.P13 - Advance Receipt
Ex.P14 - Ambulance bill
Respondent's NIL
XVI ADDL.JUDGE,
Court of Small Causes & MACT,
Bangalore.
SCCH-14 16 MVC No.3636/2015
Dt.8.08.2016
P-UMV
R1-SP
R2-RSS
For Judgment
Order pronounced in open court
vide separate judgment.
ORDER
The petition filed by the petitioners U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioners are entitled for a compensation of Rs.19,53,000/- with interest @ 9% per annum from the date of petition till the date of payment.
The respondents are jointly and severally liable to pay to the petitioners a compensation of Rs.19,53,000/- with interest. In view of policy, the respondent no.2 is directed to deposit the amount before court within one month from the date of order.SCCH-14 17 MVC No.3636/2015
The petitioners are entitled to share the compensation as under;
The petitioner No.1 : Rs.6,03,000/- The petitioner No.2 to 4 : Rs.4,00,000/- each The petitioner no.5 : Rs.1,50,000/-
After deposit of the amount, Rs.2,00,000/-out of the share of the petitioner no.1 and Rs.50,000/- out of share of the petitioner No.5 shall be deposited in their respective names in any nationalized, scheduled or co-operative bank for a period of 3 years. Entire share of the petitioner No.2 to 4 shall be deposited in the said bank under the guardianship of the petitioner no.1 till they attain majority. Balance amount of the share of the petitioner no.1 and 5 with interest shall be released in their favour through account payee cheques with proper identification.
Advocate's fee is fixed at Rs.5,000/-. Draw award accordingly.
XVI ADDL.JUDGE, Court of Small Causes & MACT, Bangalore.SCCH-14 18 MVC No.3636/2015
AWARD SCCH NO.14 BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA : BANGALORE CITY MVC No.3636/2015 Petitioner/s : 1. Smt.Gowramma N, W/o Gajendra @ Gajendra Naik.R Aged about 28 years,
2. Master Manohar.G. W/o Gajendra @ Gajendra Naik.R Aged about 11 years,
3. Master Mahesh.G W/o Gajendra @ Gajendra Naik.R Aged about 09 years,
4. Kum.Mamatha.G W/o Gajendra @ Gajendra Naik.R Aged about 08 years, (Petitioner No.2 to 4 are minors Represented by their mother/natural guardian Smt.Gowramma.N)
5. Lachchi Bai W/o Late Rama Naik Aged about 62 years.
All are residing at No.17, J.P.Nagar, Jaraganahalli, Bengaluru-560078.
And Permanent residents of Chikkajogihalli, Kudlagi Taluk, Bellary District.
(By pleader Sri UMV) V/s SCCH-14 19 MVC No.3636/2015 Respondent/s 1. C.V.Bhanu Murthy Reddy Swachatha Corporation Pvt Ltd.
No.8, 14th main, Venkateshwara Layout, Old Madiwala, Bengaluru-560068.
2. HDFC ERGO General Ins.Co.Ltd., Embasy Classic, 3rd floor, No.11, Vittalmallya Road, Bengaluru-560001.
(R1- By pleader Sri SP, R2-By pleader Sri RSS) WHEREAS, this petition filed on by the petitioner/s above named U/sec.166 of the M.V.C. Act, praying for the compensation of Rs.
(Rupees ) for
the injuries sustained by the petitioner/Death of in a
motor Accident by vehicle No.
WHEREAS, this claim petition coming up before
Sri/Smt.Basavaraj Chengti, XVI Addl.Judge, Court of Small Causes, Bangalore, in the presence of Sri/Smt. Advocate for petitioner/s and of Sri/Smt. Advocate for respondent.
ORDER The petition filed by the petitioners U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.
SCCH-14 20 MVC No.3636/2015The petitioners are entitled for a compensation of Rs.19,53,000/- with interest @ 9% per annum from the date of petition till the date of payment.
The respondents are jointly and severally liable to pay to the petitioners a compensation of Rs.19,53,000/- with interest. In view of policy, the respondent no.2 is directed to deposit the amount before court within one month from the date of order.
The petitioners are entitled to share the compensation as under;
The petitioner No.1 : Rs.6,03,000/-
The petitioner No.2 to 4 : Rs.4,00,000/- each The petitioner no.5 : Rs.1,50,000/-
After deposit of the amount, Rs.2,00,000/-out of the share of the petitioner no.1 and Rs.50,000/- out of share of the petitioner No.5 shall be deposited in their respective names in any nationalized, scheduled or co-operative bank for a period of 3 years. Entire share of the petitioner No.2 to 4 shall be deposited in the said bank under the guardianship of the petitioner no.1 till they attain majority. Balance amount of the share of the petitioner no.1 and 5 with interest shall be released in their favour through account payee cheques with proper identification.
SCCH-14 21 MVC No.3636/2015Advocate's fee is fixed at Rs.5,000/-.
Given under my hand and seal of the Court this day of 2016.
MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, METROPOLITAN AREA: Bangalore.
By the __________________________________ Petitioner/s Respondent No.1 No.2 __________________________________ Court fee paid on petition 10-00 Court fee paid on Powers 01-00 Court fee paid on I.A. Process Pleaders Fee _____________________________ Total Rs. ---------------------------------------
Decree Drafted Scrutinised by
MEMBER, M.A.C.T.
METROPOLITAN: BANGALORE
Decree Clerk SHERISTEDAR
SCCH-14 22 MVC No.3636/2015
SCCH-14 23 MVC No.3636/2015