Bangalore District Court
In Collision With The vs No.2 on 4 March, 2017
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 4th day of March, 2017.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com.,LL.B.(Spl.),L.L.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C.No.3099/2015
1. Lakshmamma, ..... PETITIONERS
W/o. Late Javaraiah,
Aged about 42 years.
2. Kumari Ropa. M.J.,
D/o. Late Javaraiah,
Aged about 26 years.
3. Keerthikumar. M.J.,
S/o. Late Javaraiah,
Aged 24 years.
All are residing at No.1323/8,
Ramesh Road,
Rangaiah Naidu Layout,
Prashantha Nagar,
T. Dasarahalli,
Bangalore - 560 057.
(By Sri. Mahadevaswamy. M., Adv.,)
V/s
..... RESPONDENTS
1. Sri. Garish Venkata Madana
Mohan Reddy,
2 M.V.C.NO.3099/2015
(SCCH-7)
S/o. G. Bala Venkata Reddy,
No.1/35-1 Chilamakur,
Yerraguntla Cuddapah District
(Kadapa), Yerranguntla,
Andhra Pradesh - 516 310.
(R.C. Owner of Lorry bearing
Registration No.AP-04-X-9307)
2. The Manager,
L & T General Insurance Company Ltd.,
No.7, 1st Floor, Subharam Building,
Margath Road, Near Garuda Mall,
Richmond Circle,
Bangalore - 560 025.
(Policy No.915105003547280000,
Valid from 26.06.2014 to 25.06.2015)
(R-1 Exparte)
(R-2 By Sri. Ravi. S. Samprathi, Adv.,)
JUDGMENT
The Petitioners No.1 to 3 have filed the present petition as against the Respondents No.1 and 2 under Section 166 of the Motor Vehicles Act, 1989, praying to award compensation of Rupees 30,00,000/- with interest and costs, in respect of death of Sri. Javaraiah S/o. Mayigaiah.
2. The brief averments of the Petitioners' case are as follows;
3 M.V.C.NO.3099/2015(SCCH-7)
a) On 15.04.2015 at about 8-20 a.m., the deceased Sri. Javaraiah was riding the Motor Cycle bearing Registration No.KA-02-ES-6857 along with pillion rider from the Hebbala Circle towards B.E.L. Circle on Bhadrappa Layout Fly Over Ring Road, Hebbala, Bangalore, slowly and cautiously, by observing the traffic rules and regulation, at that time, suddenly the driver of the Lorry bearing Registration No.AP-04- X-9307, came from behind in a rash and negligent manner, endangering to human life, without observing any traffic rules and regulations and over took the Motor Cycle and the Trolley of the said Lorry dashed to the Motor Cycle, due to which, the deceased and pillion rider fell down and the back wheel of the said Lorry ran over on the body of the deceased. Consequent to which, the deceased sustained grievous injuries all over the body.
b) Immediately after the accident, the deceased was shifted to Colombia Asia Hospital in Bangalore, by the Ambulance, wherein, even after better and expert treatment to the deceased Javaraiah was succumbed to fatal injuries and died on 16.04.2015 at about 4-15 a.m., while undergoing treatment and after postmortem examination, handed over the body to their relation and by hiring the vehicle to going to their home town residency and conducted funeral and obsequious ceremonies, for which, they have spent more than Rupees 2,00,000/-.
4 M.V.C.NO.3099/2015(SCCH-7)
c) Due to the sudden and sad demise of the deceased in the tragic accident, they are undergoing deep mental shock, pain and sufferings.
d) Prior to the date of accident, the deceased was hale and healthy and was working as full time sweeper in Punjab National Bank at M.G. Road Branch in Bangalore and drawing a salary of Rupees 25,000/- per month. With the said earnings, the deceased was maintaining them, since the deceased was only earning member in the family. Due to untimely death of the deceased, their life has become dark, miserable and depressed and put to great financial hardship without any earning member in the family.
e) The Petitioner No.1 being the wife of the deceased has lost beloved and care taker husband and the Petitioners No.2 and 3 are the unemployed daughter and son of the deceased, have lost love and affectionate and care taker father.
f) The accident in question is purely due to the rash and negligent manner of riding of the rider of the aforesaid Lorry bearing Registration No.AP-04-X-9307, by its driver and in this connection, the jurisdictional Hebbala Traffic Police have registered a case in Crime No.48/2014, punishable under Sections 279, 337 and 304(A) of I.P.C.
g) The Respondent No.1 being the R.C. Owner of the said Lorry bearing Registration No.AP-04-X-9307, which 5 M.V.C.NO.3099/2015 (SCCH-7) caused the accident and the Respondent No.2 being the Insurer and the policy was in force as on the date of accident. Hence, the Respondents are jointly and severally liable to pay the compensation to them under all heads, including general and special damages.
h) They have not claimed any compensation under Section 140 before any other Authority. Hence, this petition.
3. Though the notice was duly served on the Respondent No.1, he was remained absent and hence, he is placed as exparte on 19.12.2015.
4. In response to the notice, the Respondent No.2 has appeared before this Tribunal through his Learned Counsel. But, initially, inspite of giving sufficient opportunities, the Respondent No.2 had not filed the written statement. Later as per the Order dated 05.01.2016 passed on I.A.No.I, the written statement filed by the Respondent No.2 is taken on file.
5. The Respondent No.2 inter-alia denying the entire case of the Petitioners, has further contended as follows;
a) The petition is not maintainable either in law or on facts.
b) It seeks protection under Section 147 and 149 of M.V. Act 1988.
6 M.V.C.NO.3099/2015(SCCH-7)
c) As per Section 134(c) of M.V. Act, 1988, it is mandatory duty of the insured-Respondent No.1 to furnish the particulars of the injured and the name of the driver and particulars of driving licence. But, the insured/Respondent No.1 has not complied with statutory demand. Hence, it is not liable to pay any compensation.
d) As per Section 158(6) of M.V. Act, 1988, it is mandatory duty of the concerned Police Station to forward all the relevant documents to the concerned Insurer within 30 days from the date of the information, but, the Hebbal Traffic Police Station have failed to forward the documents and not complied with the statutory demand.
e) The driver of the Lorry was not holding a valid and effective driving licence at the time of accident. The Respondent No.1 handed over the possession of the vehicle to the said driver and therefore, has contravened the proviso of M.V. Act and the rules framed there under and have committed the breach of the terms and conditions of the policy. Hence, under the contract of Insurance, it is not obligated to indemnify the insured/Respondent No.1 and the petition as against it may kindly be dismissed.
f) The Lorry in question did not held valid permit and route permit as on the date of accident. The Respondent No.1 by using the Lorry without valid permit has violated and contravened the proviso of M.V. Act and the rules framed there 7 M.V.C.NO.3099/2015 (SCCH-7) under and have committed the breach of the terms and conditions of the policy. Hence, under the contract of Insurance, the Respondent No.2 is not obligated to indemnify the Insured/Respondent No.1.
g) It has issued a Policy of Insurance in favour of the Respondent No.1 in respect of Lorry bearing Registration No.AP-04-X-9307 and the liability of his Company if any, is limited to the terms and conditions of the policy and subject to valid and effective driving licence of the driver in question.
h) As per Condition No.1 of Policy, the Insured/Respondent No.1 has to intimate the accident
immediately on its occurrence to Insurer and produce the required documents and to co-operate with the Insurer in defending the claim effectively. In this case, the Insurer has not reported the accident nor submitted the required documents and not co-operating with the Insurer and violated Condition No.1 of the Policy, which is a condition precedent to liability. As such, the policy has become null and void and the contract of Insurance entered between the insurer and insured cannot be enforceable, hence, the petition as against it to be dismissed.
i) The Tata Sumo in question did not involve in the accident nor caused accidental injuries to the deceased, as stated in the petition or in crime records. The deceased sustained injuries due to fall from Motor Cycle bearing 8 M.V.C.NO.3099/2015 (SCCH-7) Registration No.KA-02-ES-6857, which he was riding. The Petitioners in collision with the Respondent No.1 and jurisdictional Police have created false records and story about the manner and involvement of Lorry to get compensation and lodged a false complaint, hence, the version of accident and involvement Lorry as stated in petition and crime records cannot be believed and the petition is to be dismissed. The Lorry in question is falsely implicated to have caused accident.
j) On the date of the accident, the Lorry was being driven in a reasonable speed and careful manner and there was no rashness or negligence on the part of the driver of Lorry. The Petitioners is put to strict proof of either rashness or negligence on the part of the driver of Lorry.
k) The accident did not take place in the manner alleged in Column No.22 of the petition and the Petitioners are put to strict proof of the same. The accident occurred due to the negligence on the part of the deceased being rider of the Motor Cycle, deceased without having proper look out vehicular movements of the road and without noticing on coming vehicles and was riding Motor Cycle recklessly and carelessly and caused the accident. As such, the accident took place due to the negligence on the part of the deceased and not due to the negligence on the part of the driver of Lorry, as such, the petition is to be rejected for want of negligence on the part of the driver of Lorry.
9 M.V.C.NO.3099/2015(SCCH-7)
l) It reserves its right to file additional objection statement in the changed circumstances of law and facts of the case.
m) It seeks permission of this Hon'ble Court to contest the matter on all the grounds available to the Insured under Section 170 of the Motor Vehicles Act, 1988, if the Owner/Insured fails to contest the claim in collusion with the Petitioners.
n) The amount of compensation claimed Rupees 30,00,000/- is highly excessive, exaggerated, arbitrary and speculative when compared to comparable cases, which have been disposed off.
o) The Petitioners may be directed to confirm that, no other petition is filed before this MACT or before any other MACT, on the same cause of action. The Petitioners may be directed to give an undertaking to this Hon'ble Court that, no such petition is filed on the same cause of action, except this petition.
p) If this Hon'ble Court were to award compensation, the rate of interest may be restricted to the one allowed by the Banks on deposits as per the Guidelines of the Reserve Bank of India and interest not payable over the amount paid to the Petitioners in respect of future expenditures, interest is to be paid only over the amount, which has become payable on the 10 M.V.C.NO.3099/2015 (SCCH-7) date of award, as per the law laid down by Hon'ble Supreme Court of India, in A.I.R. 1995 SC 755 (R.D. Hattangadi V/s. Pest Control (India) Ltd. Hence, prayed to dismiss the petition with costs.
6. Based on the above said pleadings, I have framed the following Issues;
ISSUES
1. Whether the Petitioners prove that, they are the dependents and legal representatives of deceased SRI. JAVARAIAH?
2. Whether the Petitioners prove that, the accident occurred due to rash and negligent driving of the Lorry bearing Registration No.AP-04-X-9307 by its driver and Sri. Javaraiah died due to the injuries sustained in the accident?
3. Whether the Petitioners are entitled for compensation? If so, how much and from whom?
4. What Order?
7. In order to prove their case, the Petitioners have examined the Petitioner No.1 as P.W.1 and have also examined one witness as P.W.2 by filing the affidavits as their 11 M.V.C.NO.3099/2015 (SCCH-7) examination-in-chief and have placed reliance upon Ex.P.1 to Ex.P.15. On the other hand, the Respondent No.2 has not adduced any evidence on his behalf.
8. Heard the arguments.
9. My answers to the above said Issues are as follows;
Issue No.1 : Partly in the Affirmative,
Issue No.2 : In the Affirmative,
Issue No.3 : Partly in the Affirmative,
The Petitioners are
entitled for compensation
of Rupees 29,81,612/-
with interest at the rate of
9% p.a. from the date of
the petition till the date of
payment, from the
Respondent No.2.
Issue No.4 : As per the final Order,
for the following;
REASONS
10. ISSUE NO.1 :- The P.W.1, who is the Petitioner
No.1, has stated in her examination-in-chief that, the
Petitioners No.2 and 3 are her daughter and son and they have filed the present petition for relief of Motor Accident Claims and compensation as against the Respondents. She has further stated that, on 15.04.2015 at about 8.20 p.m., her 12 M.V.C.NO.3099/2015 (SCCH-7) husband Javaraiah was riding the Motor Cycle bearing Registration No.KA-02-ES-6857 along with pillion rider from the Hebbala Circle towards B.E.L. Circle on Bhadrappa Layout Fly Over Ring Road, Hebbala, Bangalore and at that time, suddenly, the driver of Lorry bearing Registration No.AP-04-X- 9307, dashed on its behind and due to the said impact, her husband and pillion rider fell down and the back wheel of the said Lorry ran over on the body of her husband and due to which, he sustained grievous injuries all over his body and he succumbed to fatal injuries and died on 16.04.2015 at 4.15 a.m. at Columbia Asia Hospital, Bangalore, during the course of treatment. The Petitioners have produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.5 Death Certificate, Ex.P.6 Inquest, Ex.P.7 Charge Sheet, Ex.P.8 D.L. relating to M. Javaraiah, Ex.P.9 Identity Card relating to M. Javaraiah, Ex.P.10 Identity Card relating to M. Javaraiah, Ex.P.11 Salary Slip relating to Javaraiah. M., Ex.P.12 Ration Card, Ex.P.13 Aadhaar Card relating to Lakshmamma and Ex.P.15 Post Mortem Report. On perusal of the said oral evidence of P.W.1 as well as the contents of said material documents, it clearly goes to show that, the Petitioner No.1 is a wife, the Petitioner No.2 is an unmarried major daughter and the Petitioner No.3 is a major son of the deceased Sri. Javaraiah S/o. Mayigaiah, who died on 16.04.2015 at 4.15 a.m., in Columbia Asia Hospital during the course of treatment to the accidental injuries, which was taken place to him in the alleged road traffic accident, which was taken place on 15.04.2015 at 8.20 p.m., when he was 13 M.V.C.NO.3099/2015 (SCCH-7) riding the Motor Cycle bearing Registration No.KA-02-ES-6857. Since, the Petitioner No.1 is a wife, the Petitioner No.2 is an unmarried major daughter and the Petitioner No.3 is a major son, they can very well be considered as the legal representatives of the said deceased. But, based on the same, it cannot be said that, all the Petitioners are depending upon the said deceased, as, admittedly, the Petitioner No.3 is a major son of the deceased and the P.W.1 in her cross- examination has clearly stated that, now her son has taken the examination of PUC II year as he was discontinued his education and her son has given a statement, which was recorded by the Police at the time of inquest and he was doing a private work. From this, it appears that, the Petitioner No.3 is a major son of the deceased, who was an earning member. Therefore, the Petitioner No.3 cannot be considered a dependent upon the said deceased. No doubt, the P.W.1 in her cross-examination has stated that, last month, the marriage of their daughter is performed, i.e., the Petitioner No.2. But, based on the said evidence, it cannot be stated that, the Petitioner No.2 is also not a dependent upon the deceased, as, admittedly, at the time of accident, the Petitioner No.2 was an unmarried major daughter. Therefore, the Petitioner No.2 can very well be considered as a dependent upon the said deceased. Further, as the Petitioner No.1 is a wife, she was fully depending upon her husband, i.e., the deceased. Accordingly, I answered Issue No.1 Partly in the Affirmative.
14 M.V.C.NO.3099/2015(SCCH-7)
11. ISSUE NO.2 :- The P.W.1 has stated in her examination-in-chief that, on 15.04.2015 at about 8.20 p.m., her husband Javaraiah was riding the Motor Cycle bearing Registration No.KA-02-ES-6857 along with pillion rider from Hebbala Circle towards B.E.L. Circle on Bhadrappa Layout Flyover Ring Road, Hebbala, Bangalore, slowly and cautiously, by observing the traffic rules and regulation and at that time, suddenly, the driver of Lorry bearing Registration No.AP-04-X- 9307, came from behind her husband in a rash and negligent manner endangering to human life, without observing any traffic rules and regulations and the said Lorry over took the Motor Cycle of her husband and the Trolley of the said Lorry dashed to the Motor Cycle of her husband and due to which, her husband and pillion rider both are fell down and the back wheel of the said Lorry ran over on the body of her husband and consequently to which, her husband sustained grievous injuries all over his body. She has further stated that, immediately after the accident, the public were helped her husband and the pillion rider and both were shifted to Colombia Asia Hospital, Bangalore, by the Ambulance, wherein, even after better and expert treatment to the deceased of her husband, he was succumbed to fatal injuries and died on 16.04.2015 at about 4.15 a.m., while undergoing treatment and after the post mortem examination, the Hospital has handed over the body to their relative. She has further stated that, the accident in question is purely due to the rash and negligent manner of riding of the rider of the said Lorry bearing 15 M.V.C.NO.3099/2015 (SCCH-7) Registration No.AP-04-X-9307 by its rider and in this connection, the jurisdiction Hebbala Traffic Police have registered a case in their Crime No.48/2015 and investigated properly and filed charge sheet before the Court as against the said driver punishable under Sections 279, 337 and 304(A) of IPC.
12. No doubt, the P.W.1, who is the Petitioner No.1, is not an eye witness to the accident in question, which caused to the deceased. Further, the Petitioners have not produced vehicular documents relating to the Motor Cycle bearing Registration No.KA-02-ES-6857, wherein, the deceased was proceeding as a rider at the time of accident. In this regard, the P.W.1 in her cross-examination has stated that, she has not produced vehicular documents relating to the said Motor Cycle. Further, the P.W.1 has stated in her cross-examination that, she has not visited the accidental spot and she does not know that, when her deceased husband was riding the Motor Cycle in the road with very high speed and at that time, the accident was taken place and he himself dashed to the Lorry and not the Lorry dashed to his Motor Cycle. Further, the P.W.2, who is an eye witness, relative of the deceased and pillion rider of the Motor Cycle, which was ridden by the deceased, has stated in his cross-examination that, there were two tracks in fly over and at the time of accident, the traffic was normal and heavy goods vehicles were passed through the said accidental road and at the time of accident, they were 16 M.V.C.NO.3099/2015 (SCCH-7) proceeding at the starting point of flyover and the lorry bearing Registration No.AP-04-X-9307 was having load and the said Lorry was proceeding on the right side of their Motor Cycle and on the next day morning, he has lodged a complaint in the Police Station and sufficient vacant road was there on their left side and the said Lorry was coming behind their Motor Cycle and there was beam light over the fly over. From the said evidence of P.W.2, it appears that, on the left side of the Motor Cycle, there was more space available to the deceased to drive his Motor Cycle, when the offending Lorry came on same direction on the accidental road.
13. But, based on the said oral evidence elicited from the mouth of P.W.1 and P.W.2 by the Respondent No.2 and non-production of the vehicular documents relating to the Motor Cycle bearing Registration No.KA-02-ES-6857 by the Petitioners, the above said material evidence of P.W.1, which has been stated by her in the examination-in-chief cannot be thrown away and it cannot be said that, there was no negligence on the part of the driver of the offending Lorry bearing Registration No.AP-04-X-9307 in the commission of the said road traffic accident, but, the entire negligence is on the part of the deceased in riding his Motor Cycle bearing Registration No.KA-02-ES-6857 in the commission of the said road traffic accident, as, to consider the oral evidence of P.W.1 as well as their specific case, the Petitioners have produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Spot Panchanama, 17 M.V.C.NO.3099/2015 (SCCH-7) Ex.P.4 Spot Hand Sketch, Ex.P.5 Death Certificate relating to Javaraiah M, Ex.P.6 Inquest, Ex.P.7 Charge Sheet, Ex.P.8 Driving Licence relating to M. Javaraiah, Ex.P.14 MVI Report and Ex.P.15 Post Mortem Report, which clearly disclosed that, there was no negligence on the part of the deceased in riding the Motor Cycle bearing Registration No.KA-02-ES-6857, but, the entire negligence is on the part of the driver of the Lorry bearing Registration No.AP-04-X-9307 in the commission of the said road traffic accident, who came with very high speed with rash and negligent manner and dashed to the Motor Cycle on its behind and at the time of accident, the deceased was having a valid and effective driving license to ride the Motor Cycle and the offending Lorry dashed to the said Lorry on its behind and due to the said impact, the deceased and pillion rider both fell down and the back wheel of the offending Lorry ran over the deceased and due to which, he has sustained severe grievous injuries on his body and he succumbed to the accidental injuries on 16.04.2015 at 4.15 a.m., during the course of treatment at Columbia Asia Hospital, which is clear from the following discussion. Further, by producing Ex.P.8 Driving Licence, the Petitioners have clearly proved that, at the time of accident, the deceased was having a valid and effective driving license to ride the Motor Cycle. Further, the P.W.1 in her cross-examination has clearly stated that, at the time of accident, Laxmana had accompanied with her deceased husband and the said Laxmana had also sustained injuries in the said accident and when her deceased husband was riding 18 M.V.C.NO.3099/2015 (SCCH-7) the Motor Cycle on the ring road over bridge, the accident was taken place and on that day, her deceased husband and Laxmana were returning on the Motor Cycle after visiting relatives. From the said evidence of P.W.1, it is further made crystal clear that, there was no negligence on the part of the deceased in the commission of the said road traffic accident. Further, the P.W.1 has clearly denied the suggestions put to her by the Respondent No.2 during the course of cross- examination that, at the time of accident, her deceased husband and Laxmana were taking together and her deceased husband was not concentrating in riding the Motor Cycle on the accidental road and due to his own negligence itself, the alleged accident was taken place and there was no negligence on the part of the driver of the offending Lorry and though the said fact known to him and his family members, a false complaint is lodged as against the driver of the offending Lorry by falsely implicating it and only to claim compensation, a false complaint is lodged as against the driver of offending vehicle, through her relative Laxmana. From this, it appears that, though the P.W.1 has been cross-examined by the Respondent No.2 nothing has been elicited from her mouth to consider her specific defence. Furthermore, though the notice was duly served on the Respondent No.1, who was a R.C. Owner of the offending Lorry bearing Registration No.AP-04-X-9307, he was remained absent and hence, he is placed as exparte. The non- appearance of the Respondent No.1 in the present petition clearly implies that, he has indirectly admitted the entire case 19 M.V.C.NO.3099/2015 (SCCH-7) made out by the Petitioners against him as well as the evidence adduced by them to consider their case. Furthermore, the Petitioners have examined the pillion rider, who is also an eye witness and the Complainant, as P.W.2, who has also clearly stated the same evidence of P.W.1 in his examination-in-chief. He has further clearly stated in his cross-examination that, at the time of accident, two persons were traveling on the said Motor Cycle bearing Registration No.KA-02-ES-6857, which was belonging to his Uncle Javaraiah, i.e., the deceased and his Uncle Javaraiah was riding the said Motor Cycle at the time of accident and he has lodged a complaint about the accident and he has also shown the accidental spot to the Police and by admitting as an inpatient for 2 days, he had taken treatment to the accidental injuries and on next day morning, he has lodged a complaint in the Police Station and after lodging the compliant, he was admitted in the Hospital and the said Lorry was coming behind their Motor Cycle. From the said evidence of P.W.2, it is further made crystal clear that, there was no negligence on the part of the deceased in the commission of the said road traffic accident in riding his Motor Cycle bearing Registration No.KA-02-ES-6857, but, the entire negligence is on the part of the driver of the offending Lorry bearing Registration No.AP-04-X-9307. Further, the P.W.2 has also clearly denied the suggestions put to him by the Respondent No.2 during the course of cross-examination that, at the time of accident, he and his Uncle Javaraiah were talking together and not concentrating on the road while riding 20 M.V.C.NO.3099/2015 (SCCH-7) the Motor Cycle by Javaraiah and he suddenly took the vehicle on right side and caused the accident by himself and the entire negligence is on the part of the deceased Javaraiah, who himself dashed to the Motor Cycle to the Lorry and there was no negligence on the part of the driver of the offending lorry and he is falsely stating that, the entire negligence is on the part of the driver of the offending Lorry and only to claim compensation and to help the family members of the deceased, he has given a false complaint as against the driver of offending Lorry even though he has not caused the accident. From this, it is further made crystal clear that, though the P.W.2 has also been cross-examined by the Respondent No.2, nothing has been elicited from his mouth to consider his specific defence. Furthermore, the Respondent No.2 has not adduced any evidence on his behalf to consider his specific defence.
14. The contents of Ex.P.1 and Ex.P.2 Complaint disclosed that, the P.W.2, who was a pillion rider, relative and eye witness of the accident in question has lodged a complaint before the Hebbala Traffic Police as against the driver of the offending Lorry bearing Registration No.AP-04-X-9307 by alleging that, on 15.04.2015 at 8.20 p.m., when he was proceeding as a pillion rider on Motor Cycle bearing Registration No.KA-02-ES-6857, which was ridden by his Uncle Javaraiah from Hebbal Circle towards BEL Circle and when they came to the starting point of Bhadrappa Flyover 21 M.V.C.NO.3099/2015 (SCCH-7) Ring Road, the Lorry bearing Registration No.AP-04-X-9307 came on the same road by its driver with very high speed, in a rash and negligent manner and dashed to the Motor Cycle, when he was overtaking it and the Lorry Trailor hit to hind portion of the Motor Cycle and due to the said impact, he and deceased fell down and at that time, back wheel ran over the Motor Cycle and deceased and due to the said impact, he had sustained severe grievous injuries and through 108 Ambulance, he was shifted to nearby Columbia Asia Hospital and by admitting as an inpatient, he has taken treatment to the said accidental injuries and he had sustained simple injuries and the deceased died on 16.04.2015 at 4.15 a.m. during the course of treatment in the said Hospital and as such, he prayed to take necessary legal action as against the driver of the offending Lorry and based on Ex.P.2 Complaint, the said Police have registered a criminal case as against the driver of the offending Lorry bearing Registration No.AP-04-X- 9307 for the offences punishable under Sections 279, 337 and 338 of IPC in Crime No.48/2015. It is also clear from the content of Ex.P.1 FIR and Ex.P.2 Complaint that, there is no delay as such in lodging Ex.P.2 Complaint by the eye witness to the accident in question.
15. The contents of Ex.P.3 Spot Panchanama, Ex.P.4 Spot Hand Sketch and Ex.P.14 MVI Report further clearly disclosed that, at the time of accident, the driver of the offending Lorry bearing Registration No.AP-04-X-9307 was very 22 M.V.C.NO.3099/2015 (SCCH-7) high speed, rash and negligent manner and dashed to the Motor Cycle bearing Registration No.KA-02-ES-6857 when it was overtaking and at that time, the Lorry Trailer dashed to the Motor Cycle and due to which, the rider and the pillion rider fell down along with Motor Cycle and the back wheel of the offending Lorry ran over on the said Motor Cycle of the deceased and due to the said impact, the deceased had sustained severe grievous injuries and if the driver of the offending Lorry could have taken a little care at the time of driving it, he could have avoided the said road traffic accident, which caused to the deceased and the offending Lorry bearing Registration No.AP-04-X-9307 as well as its driver are very much involved in the said road traffic accident and there was no negligence on the part of the deceased in riding the Motor Cycle bearing Registration No.KA-02-ES-6857. The damages caused to both the Motor Cycle and the offending Lorry are clearly shown in Ex.P.14 MVI Report, which clearly disclosed about the terrific impact of the said road traffic accident. It is also clearly mentioned in Ex.P.14 MVI Report that, the said accident was not occurred due to any mechanical defects of the said vehicles.
16. The contents of Ex.P.5 Death Certificate relating to the deceased, Ex.P.8 Inquest and Ex.P.15 Post Mortem Report disclosed in the said road traffic accident, the deceased had sustained severe grievous injuries all over his body and he died on 16.04.2015 at 4.15 a.m. at Columbia Asia Hospital, 23 M.V.C.NO.3099/2015 (SCCH-7) Bangalore, during the course of treatment due to the said accidental injuries. It is also clearly mentioned in Ex.P.15 Post Mortem Report that, the death is due to shock and hemorrhage due to multiple injuries sustained. From this medical evidence, it is clearly proved that, due to the said accidental injuries itself, the deceased died on 16.02.2015 at 4.15 a.m.
17. The contents of Ex.P.7 Charge Sheet disclosed that, since during the course of investigation, it is found that, due to very high speed rash and negligent manner of driving of the offending Lorry bearing Registration No.AP-04-X-9307 by its driver itself, the said road traffic accident was taken place on 15.04.2015 at 8.20 p.m. on Bhadrappa Layout Fly Over, Ring Road, which dashed to the Motor Cycle bearing Registration No.KA-02-ES-6857, which was proceeding on the same road by the deceased as a rider while overtaking it and the Lorry Trailer dashed to the said Motor Cycle and due to the said impact, the deceased fell down on the back wheel of the offending Lorry and had sustained severe grievous injuries and he was admitted in Columbia Asia Hospital and succumbed on 16.04.2015 at 4.15 a.m., due to the said accidental injuries and the pillion rider Laxman, i.e., the P.W.2, has sustained simple injuries and as such, after thorough investigation, the Investigating Officer has filed a charge sheet as against the driver of offending Lorry for the offences punishable under Sections 279 and 304(A) of IPC. There is no allegation leveled by the Investigating Officer in Ex.P.7 Charge Sheet as against 24 M.V.C.NO.3099/2015 (SCCH-7) the deceased about his negligence in the commission of the said road traffic accident in riding his Motor Cycle bearing Registration No.KA-02-ES-6857.
18. From the above said material evidence, both oral and documentary, it is clearly proved that, the entire negligence is on the part of the driver of the offending Lorry bearing Registration No.AP-04-X-9307 in the commission of the said road traffic accident and there was no negligence on the part of the deceased in the commission of the road traffic accident in riding his Motor Cycle bearing Registration No.KA- 02-ES-6857 and the offending Lorry bearing Registration No.AP-04-X-9307 as well as its driver are very much involved in the said road traffic accident, wherein, the deceased had sustained severe grievous injuries all over his body and succumbed to the injuries during the course of treatment in the Hospital. Accordingly, I answered Issue No.2 in the Affirmative.
19. ISSUE NO.3 :- The Petitioners have produced Ex.P.8 Driving Licence relating to the deceased, which disclosed that, his date of birth is on 28.06.1986. The date of accident is on 15.04.2015. On perusal of the said dates, it appears that, at the time of accident, the deceased was 30 years old. But, the said age cannot be taken into for consideration, as, in Ex.P.15 Post Mortem Report, the age of the deceased is shown as 50 years and it is very much clear 25 M.V.C.NO.3099/2015 (SCCH-7) from the cause title of the petition as well as the documents produced by the Petitioners that, the Petitioner No.1 is a wife and the Petitioners No.2 and 3 are the major children of deceased, who are aged about 26 years and 24 years respectively and his wife is aged about 42 years. Therefore, the age of the deceased as shown in Ex.P.15 Post Mortem Report is taken into for consideration. Hence, the age of the deceased is considered as 50 years at the time of accident.
20. The P.W.1 has stated that, prior to the date of accident, her deceased husband was hale and healthy and he was working as Full Time Sweeper in Punjab National Bank at M.G. Road Branch in Bangalore and he was drawing a salary of Rupees 25,000/- per month. The Petitioners have produced Ex.P.9 and Ex.P.10 Identity Card and Ex.P.11 Salary Slip relating to the deceased. On perusal of the contents of Ex.P.9 to Ex.P.11 as well as the oral evidence of P.W.1, it is crystal clear that, at the time of accident, the deceased was working as a part time Sweeper and Sub-Staff at Punjab National Bank and his Gross Salary is of Rupees 20,685/- and the Net Salary is Rupees 16,084-53 and he was not an income tax assessee. No doubt, the Petitioners have not examined the employer of the deceased, but, it no way affect to consider the avocation and income of the deceased at the time of accident, as, the contents of Ex.P.9 to Ex.P.11 clearly disclosed about the avocation and income of the deceased, which is not on higher side, as, at the time of accident, the deceased was 50 years old, 26 M.V.C.NO.3099/2015 (SCCH-7) who is having Petitioners as his wife and children. Therefore, based on the said material evidence, the income of the deceased is considered as Rupees 20,685/- per month at the time of accident.
21. The P.W.1 has stated that, due to the sudden and sad demise of her deceased husband in the traffic accident, herself and her daughter and son are undergoing deep mental shock, pain and agony. She has further stated that, at the time of accident, her husband was promoted and increased his salary, with the said earnings, her deceased husband was maintaining them, since her deceased husband was only earning member in their family and due to the untimely death of her deceased husband, their family and life has become dark, miserable and depressed and put to great financial hardship and mental agony and without any earnings, she cannot maintain herself, her daughter and son. She has further stated that, being herself as a wife, the Petitioner No.1 had lost her beloved and care taker husband and further the Petitioners No. 2 and 3 are unemployed daughter and son of her deceased husband and they have lost the love and affectionate and care taker father.
22. While answering Issue No.1, this Tribunal has already observed and come to the conclusion that, the Petitioner No.1 is a wife, the Petitioner No.2 is an unmarried major daughter and Petitioner No.3 is a major son and they are 27 M.V.C.NO.3099/2015 (SCCH-7) the legal representatives of the said deceased and the Petitioners No.1 and 2 are the dependants upon the said deceased. While answering Issue No.2, this Tribunal has already observed and come to the conclusion that, the entire negligence is on the part of the driver of the offending Lorry bearing Registration No.AP-04-X-9307 in the commission of the said road traffic accident and there was no negligence on the part of the deceased in the commission of the road traffic accident in riding his Motor Cycle bearing Registration No.KA- 02-ES-6857 and the offending Lorry bearing Registration No.AP-04-X-9307 as well as its driver are very much involved in the said road traffic accident, wherein, the deceased had sustained severe grievous injuries all over his body and succumbed to the injuries during the course of treatment in the Hospital. Since, the Petitioners are the legal representatives and since the Petitioners No.1 and 2 are the dependants upon the said deceased, they are entitled for compensation under the following heads.
23. As per the decision reported in 2013 ACJ 1403 (Rajesh and Others V/s. Rajbir Singh and Others) and as the deceased was aged 50 years at the time of accident, towards future prospects 30% of the income has to be added. So, 30% of Rupees 20,685/- comes to Rupees 6,205-50. Therefore, the income of the deceased comes to Rupees 26,890-50 p.m. (Rs.20,685/- + 6,205-50).
28 M.V.C.NO.3099/2015(SCCH-7)
24. The Petitioners No.1 and 2 are considered as the dependents upon the deceased. Therefore, the deceased left behind 2 dependents. As per the principles laid down in Sarala Varma's Case, considering the number of the dependents, i.e., 2, 1/3rd of the income has to be deducted towards personal expenses of the deceased, i.e., Rupees 8,963-50 (1/3rd of Rs.26,890-50). Therefore, loss of dependency comes to Rupees 17,927/- (Rs.26,890-50 (-) Rs.8,963-50). The multiplier corresponding to the age of the deceased, i.e., 50 years, is 13 as per Sarala Varma's Case. Therefore, loss of dependency comes to Rupees 27,96,612/- (Rs.17,927/- x 12 x 13). Therefore, the Petitioners are entitled for Rupees 27,96,612/- towards loss of dependency due to death of Sri. Javaraiah S/o. Mayigaiah.
25. The P.W.1 has stated that, after postmortem examination, the Hospital Authority has handed over the body to their relation and from there, by hiring the vehicle to go to her home town residence and conducted funeral and obsequious ceremonies, for which, she has spent more than Rupees 2,00,000/-. In this regard, the Petitioners have not produced any scrap of paper.
26. As per the principles laid down in the decision reported in 2013 ACJ 1403 (Rajesh and Others V/s Rajbir Singh and Others), loss of consortium to the Petitioner No.1, who is a wife of the deceased, should be Rupees 1,00,000/-, 29 M.V.C.NO.3099/2015 (SCCH-7) loss of love and affection has to be compensated by awarding Rupees 25,000/- and funeral expenses should be Rupees 25,000/-. As this Tribunal has already observed that, the Petitioner No.1 is a wife and the Petitioner No.2 was an unmarried major daughter and the Petitioner No.3 is a major son of the deceased. Hence, the Petitioner No.1 is entitled for a sum of Rupees 1,00,000/- towards Loss of consortium and all the Petitioners are entitled for a sum of Rupees 25,000/- towards loss of love and affection and Rupees 25,000/- towards funeral expenses.
27. It is just, proper and necessary to award a sum of Rupees 5,000/- towards transportation expenses of the dead body of deceased and Rupees 30,000/- towards loss of estate. Hence, the Petitioners are entitled for Rupees 5,000/- towards transportation expenses of the dead body of the deceased and Rupees 30,000/- towards loss of estate.
28. In this way, the Petitioners are entitled for the following amount of compensation:-
Sl. No. Compensation heads Compensation amount
1. Loss of Dependency Rs. 27,96,612-00
2. Loss of Consortium Rs. 1,00,000-00
4. Funeral Expenses Rs. 25,000-00
5. Loss of Love and affection Rs. 25,000-00
6. Expenses of transportation Rs. 5,000-00 30 M.V.C.NO.3099/2015 (SCCH-7) of dead body
7. Loss of Estate Rs. 30,000-00 TOTAL Rs. 29,81,612-00
29. In all, the Petitioners are entitled for total compensation of Rupees 29,81,612/- along with interest at the rate of 9% per annum on the above said sum from the date of petition till payment.
30. The P.W.1 has stated that, the Respondent No.1 is a R.C. Owner of the said Lorry bearing Registration No.AP-04- X-9307, which caused the accident and the Respondent No.2 being the Insurer and the policy was in force as on the date of accident and hence, the Respondents are jointly and severally liable to pay accident claims and compensation to them. She has further clearly stated in her cross-examination that, they have filed an application to the employer of the deceased to give a job to her son on compassionate grounds and till today, they have not received from the employer of her deceased husband in respect of the accident and still pending for consideration and service benefits relating to her husband is also pending for consideration. From the said evidence of P.W.1, it appears that, the Petitioners have not yet received any death benefits from the employer of the deceased.
31 M.V.C.NO.3099/2015(SCCH-7)
31. While answering Issue No.2, this Tribunal has already come to the conclusion that, the entire negligence is on the part of the driver of the offending Lorry bearing Registration No.AP-04-X-9307 in the commission of the said road traffic accident and there was no negligence on the part of the deceased in the commission of the road traffic accident in riding his Motor Cycle bearing Registration No.KA-02-ES-6857 and the offending Lorry bearing Registration No.AP-04-X-9307 as well as its driver are very much involved in the said road traffic accident, wherein, the deceased had sustained severe grievous injuries all over his body and succumbed to the injuries during the course of treatment in the Hospital.
32. The Petitioners in the cause title of the petition have clearly mentioned that, the Respondent No.1 was a R.C. Owner and the Respondent No.2 was an Insurer of Lorry bearing Registration No.AP-04-X-9307 and its Insurance Policy No.91510500354780000 and valid from 26.06.2014 to 25.06.2015. The Respondent No.2 in his written statement has clearly stated that, he has issued a Policy of Insurance in favour of the Respondent No.1 in respect of the Lorry bearing Registration No.AP-04-X-9307 and the liability of its Company if any, is limited to the terms and conditions of the policy and subject to valid effective driving licence of the driver in question. From the said material evidence, it is made crystal clear that, at the time of accident, the Respondent No.1 was a R.C. Owner and the Respondent No.2 was an Insurer of the 32 M.V.C.NO.3099/2015 (SCCH-7) offending Lorry bearing Registration No.AP-04-X-9307 and its Insurance Policy was valid, which covers the date of accident. There is no allegation leveled by the Investigating Officer in Ex.P.8 Charge Sheet as against the driver of the offending Lorry bearing Registration No.AP-04-X-9307 that, at the time of accident, he was not having a valid and effective driving licence to drive such class of offending vehicle. The violation of the terms and conditions of the Insurance Policy by the Respondent No.1 is not proved by the Respondent No.2. Under such circumstances, the Respondent No.1 being the R.C. Owner and the Respondent No.2 being an Insurer of the offending Lorry bearing Registration No.AP-04-X-9307 are jointly and severally liable to pay the above said compensation and interest to the Petitioners. Since the Respondent No.2 is an Insurer, it shall indemnify the Respondent No.1. Hence, Issue No.3 is answered accordingly.
33. ISSUE NO.4 :- For the aforesaid reasons, I proceed to pass the following;
ORDER The petition filed by the Petitioners under Section 166 of the Motor Vehicles Act, 1989 is hereby partly allowed with costs.
33 M.V.C.NO.3099/2015(SCCH-7) The Petitioners are entitled for compensation of Rupees 29,81,612/- with interest at the rate of 9% p.a. from the date of the petition till the date of payment, from the Respondent No.2.
The Respondent No.2 shall deposit the said compensation and interest in this Tribunal, within two months from the date of this Order.
The Petitioners shall share the compensation amount in the ratio of 70:15:15.
In the event of deposit of the said compensation, 50% of the compensation amount relating to the Petitioner No.1 and the entire shares relating to the Petitioners No.2 and 3 shall be released in their favour through account payee cheques, on proper identification.
Remaining 50% share relating to the Petitioner No.1 shall be kept 34 M.V.C.NO.3099/2015 (SCCH-7) in FD in her name, in any nationalized Bank of her choice, for a period of three years.
Advocate's fee is fixed at Rupees 1,000/-.
Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by her, corrected and then, pronounced by me in the open Court on this, the 4th day of March, 2017.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONERS :-
P.W.1 : Smt. Lakshmamma P.W.2 : Sri. Lakshmana
2. DOCUMENTS MARKED BY THE PETITIONERS :-
Ex.P.1 : True copy of FIR
Ex.P.2 : True copy of Complaint
Ex.P.3 : True copy of Spot Panchanama
Ex.P.4 : True copy of Spot Hand Sketch
Ex.P.5 : Death Certificate relating to Javaraiah. M.
Ex.P.6 : True copy of Inquest
35 M.V.C.NO.3099/2015
(SCCH-7)
Ex.P.7 : True copy of Charge Sheet
Ex.P.8 : Notarized Xerox copy of D.L. relating to
M. Javaraiah
Ex.P.9 : Notarized Xerox copy of Identity Card relating
to M. Javaraiah
Ex.P.10 : Notarized Xerox copy of Identity Card relating
to M. Javarajaih
Ex.P.11 : Salary Slip relating to Javaraiah. M.
Ex.P.12 : Notarized Xerox copy of Raton Card
Ex.P.13 : Notarized Xerox copy of Aadhaar Card relating
to Lakshmamma
Ex.P.14 : True copy of MVI Report
Ex.P.15 : True copy of Post Mortem Report
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
-NIL-
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
-NIL-
(INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.