Bangalore District Court
Smt. A.Chamundeshwari vs Bharti Axa General Insurance Co on 13 March, 2015
IN THE COURT OF MOTOR ACCIDENT CLAIMS TRIBUNAL,
XX ADDL.SMALL CAUSES JUDGE, BANGALORE, (SCCH-22)
Dated this the 13th day of March 2015
Present : Sri.N.SUBRAMANYA, M.Com., LLB.,
Member, MACT & XX ASCJ, Bangalore.
M.V.C. No.7331/2012
Petitioners : 1. Smt. A.Chamundeshwari,
W/o. Late A.Dhananjaya Chetty @
A.Dhananjaya Shetty,
Aged about 40 years,
2. A. Jyostna,
D/o.Late A.Dhananjaya Chetty @
A.Dhananjaya Shetty,
Aged about 19 years
Both are R/at No.2. 185,
Cross Road, Palamaner Town,
Chittoor District,
Andrapradesh.
Presently R/at No.8,
Coffee Board Layout,
Main Road, Kempapura,
Bangalore.
(By Sri. S. V. Sudhakar Reddy,
Advocate.)
-Versus-
Respondents: 1. Bharti Axa General Insurance Co.
Ltd.,
1st Floor,
The FEMS Icon, Survey No.28,
2 MVC.No.7331/2012
SCCH-22
Next To AKME Ballet,
Doddanekkundi,
Outer Ring Road,
Bangalore-37.
( Policy
No.FCV/10852935/22/03/M5221F
Valid from 29.03.2012 to 28.03.2013)
(By Sri. K.Prakash., Advocate)
2. Chaya S. Bamb,
Axis Carriers and Logistics Ltd.,
Ovala Village,
G.B.Road,
Thane,
Maharashtra- 400 615.
(Exparte)
JUDGMENT
Petitioners have filed this petition under section 166 of the Motor Vehicles Act, 1989 for the award of compensation of Rs.30,00,000/- for the death of A. Chananjaya Chetty @ A.Dhananjaya Shetty, (in short as deceased) in a Motor Vehicle's Accident.
2. Brief facts of the petitioner's case as are under:
That on 21.11.2012 at about 3.10 a.m. when the deceased A.Dhananjaya Chetty @ A.Dhananjaya Shetty 3 MVC.No.7331/2012 SCCH-22 was proceeding in a cycle on the extreme left side of the road carefully at Ambedkar Circle, on Palamaner- Bangalore NH-4 road, Palamaner, at that time the driver of the Lorry bearing reg. MH-04-EY-8517 drove the same in a rash and negligent manner at high speed so as to endangering to human life and dashed against the deceased. Due to this terrific impact the deceased fell down and sustained grievous injuries. Immediately after the accident he was shifted to Palamaner Govt. Hospital for treatment, but inspite of best treatment given he succumbed to the injuries in the said hospital on the same day died and in the same hospital the body post mortem was conducted. After conducting post mortem the dead body was handed over to petitioners and dead body was shifted to his native place and conducted the funeral and obsequious ceremonious and spent a sum of more than Rs.1,00,000/- towards transportation dead body last rites. Prior to the accident the deceased was hale and healthy and he was aged about 50 years at the time of the accident and he was working as a Supervisor 4 MVC.No.7331/2012 SCCH-22 in Sri. Venkateshwara Poultry Farm and Grapes Garden and also doing agricultural work and earning a sum of Rs.20,000/- per month and his contributing his entire income to the maintenance of the family. Due to the said accident the petitioners lost their affectionate family. Since, the deceased was earning member of the petitioner family, he left behind the petitioners. Due to death of A. Chananjaya Chetty @ A. Dhananjaya Shetty petitioners are put to untold misery, financial hardship & petitioners have suffered great mental shock and agony.
3. They have contended that the accident had occurred due to rash and negligent driving of the Lorry bearing Reg.No.MH-04-EY-8517 by its driver. 1st Respondent is the Insurer and 2nd Respondent being the registered Owner of the above said offending Lorry. Hence, they are liable to pay compensation and the petitioners have prayed for award of compensation of Rs.30,00,000/-with interest at 12% per annum from the respondents, from the date of the petition till realisation 5 MVC.No.7331/2012 SCCH-22 and such other reliefs as this tribunal deems fit to grant under the circumstance of the case.
4. In pursuance of the notice, 2nd Respondent remained absent and hence he has been placed as exparte. 1st Respondent appeared through its counsel and filed its statement of objections contending that the claim petition is not maintainable either runner law or on facts and is liable to be dismissed in limine. He has admits that the 1st respondent had issued the policy bearing No.FCV/I0852935/22/03/M5221F against the alleged Lorry bearing reg. No.MH-04-EY-8517, valid from 29.03.2012 to 28.03.2013. The compensation claimed by the petitioner is highly excessive and exorbitant and denied all other averments and allegations made in the claim petition. Hence, for all these reasons prayed for dismissal of claim petition.
5. On the basis of the above pleadings, following issues have been framed:
6 MVC.No.7331/2012
SCCH-22 ISSUES
1. Do the petitioners prove that the death of Sri. A.Dhananjaya Chetty @ A.Dhananjaya Shetty had occurred in an accident arising out of rash or negligent driving of the driver of the Lorry bearing reg. No.MH-04-EY-8517, on 21.11.2012 at about 3.10 a.m as alleged?
2. Whether petitioners are entitled for compensation? If so, for what amount and from whom?
3. What order or award?
6. In order to prove the above Issues, petitioner has got examined 1st petitioner as PW1 and has got examined and has got marked 9 documents as Exs.P.1 to P.9 and closed her side. The 1st respondent has got examined its Legal officer as RW.1 and got marked 4 documents as Ex.R.1 to R.4 and closed its side evidence.
7. Heard arguments both sides.
8. My answer the above issues are as under:
Issue No.1: In the Affirmative
Issue No.2: Yes, to the extent as shown
in the final order, from
Respondent No. 2.
Issue No.3: As per final order,
for the following:
7 MVC.No.7331/2012
SCCH-22
REASONS
9. Issue No.1
The 1st Petitioner, husband of the deceased
examined as PW1. She has filed affidavit evidence as her examination in chief narrating the accident as mentioned in the above pleadings.
10. In order to substantiate the said facts, petitioner has produced true copies of FIR, Complaint, Translation of complaint in English, Charge sheet, Sketch, Accident information report, PM report and Inquest mahazar, Translation of inquest mahazar pertaining to Crime No.197/12 of Palamaner Police Station, Chittoor marked as Exs.P.1 to P6 and Ex.P9 respectively. On going through the documents placed on record and the Charge sheet- Ex.P.3, it reveals that on the complaint of A.S.Damodharam, the police have investigated the matter and have found that the accident in question to have occurred due to the rash and negligent driving of Lorry bearing Reg. No.MH-04- 8 MVC.No.7331/2012 SCCH-22 EY-8517 by its driver. Hence, it could be held that the accident in question has occurred solely due to the rash and negligent driving of the Lorry bearing Reg. No.MH- 04-EY-8517 by its driver and the deceased succumbed to the injuries sustained by him in the accident. Hence, I answer Issue No.1 in the Affirmative.
11. Issue No.2:
The petitioners have claimed the compensation on account of the death of A.Chananjaya Chetty @ A.Dhananjaya Shetty in the said accident. It is the allegation in the claim petition as well as in the evidence of PW.1 that, the petitioners No.1 is the wife and petitioner No.2 is the daughter of the deceased A.Chananjaya Chetty @ A.Dhananjaya.
12. LOSS OF DEPENDENCY:-
There is no dispute about the relationship between the petitioners and the deceased. Petitioners have also produced documents such as House hold card at Ex.P.8, from this document it clearly proves the relationship of 9 MVC.No.7331/2012 SCCH-22 deceased and petitioners. The petitioners have stated that deceased was working as Super wiser at Sri. Venkateshwara Poltry Farm and Grapes Garden and stated that he was drawing a salary of Rs.10,000/- per month. But they have not examined employers and author of at Ex.P.7 certificate regarding occupation and income. Hence, notional income of Rs.6000/- is taken. The age of the deceased as per petition and also Ex.P.3 charge sheet and Ex.P.6 PM report is 55 years. Since the deceased is married, 1/3rd of his income is to be deducted towards his personal expenses. Therefore, his income comes to Rs.4,000/-. As per citation reported in (2009) 6 SCC 121, in the case between Sarala Verma -
Versus- Delhi Transport Corporation, the multiplier applicable for the age of group of 51 to 55 year is "11". Hence, the loss of dependency would be Rs.4,000 x 12 x 11 = Rs.5,28,000/-. Hence, the said amount rounded of to Rs.5,30,000/- is awarded under the head 'loss of dependency'.
10 MVC.No.7331/2012
SCCH-22
13. FUNERAL EXPENSES:-
It is stated in the petition as well as in the evidence of PW 1 that, they have spent a sum of Rs.1,00,000/- towards transportation of dead body and funeral and obsequies ceremony. No documents are forthcoming for having spent money towards transportation of dead body, medical and funeral expenses. Hence, in the absence of proof, a sum of Rs.20,000/- is awarded towards the funeral expenses of the deceased.
14. LOSS OF LOVE AND AFFECTION:;-
In the case on hand, the petitioner No.2 is the daughter of the deceased and his lost the love and affection of the deceased. Taking into the consideration of the said fact, this Tribunal is of the considered view that, it would be just and proper to award a compensation of Rs.20,000/- under the head "Loss of love and affection".
11 MVC.No.7331/2012
SCCH-22
15. LOSS OF CONSORTIUM :-
A sum of Rs.20,000/- is awarded towards loss of consortium to petitioner no.1 who is the wife of the petitioner.
16. LOSS OF ESTATE :-
A sum of Rs.30,000/- is awarded towards loss of estate to petitioner no.1 who is the wife of the petitioner.
17. Thus, the petitioners are entitled for compensation under the following heads as follows:
For Loss of Dependency Rs. 5,30,000-00 For Loss of love and affection Rs. 20,000-00 For Funeral and obsequies Rs. 20,000-00 ceremony For Loss of Consortium Rs. 20,000-00 For Loss of Estate Rs. 30,000-00 TOTAL Rs.6,20,000-00
18. Thus, in all, the petitioners are entitled for total compensation in a sum of Rs.6,20,000/-. The above said compensation awarded is just, fair and adequate under the facts and circumstances of the case. 12 MVC.No.7331/2012
SCCH-22
19. With regard to Liability: As discussed by me on Issue No.1, the accident in question has occurred due to the rash and negligent driving of Lorry bearing Reg. No.MH-04-EY-8517 by its driver. The respondent No.1 has taken specific contention that driver of the offending vehicle was not having valid DL and same has stated para No.5 written statement. Official of respondent No.1 examined as the RW.1 has stated in his evidence that the 1st respondent has obtained the document from the police station along with DL copy of the respondent driver Mr. Shamsher Khan S/o. Sher Mohammad and the same was sent to the concerned RTO, Faridabad (Haryana State) for verification and they have replied that no such DL was issued in the name of respondent driver Mr. Shamsher Khan S/o. Sher Mohammad in their records. Therefore, the insured i.e., 2nd respondent has knowingly entrusted the said vehicle to the driver, who had no valid and effective DL as on the date of alleged accident. In this regard they have produced Ex.R.1 to 3 letter to the respondent No.2 RC Owner to furnish all of 13 MVC.No.7331/2012 SCCH-22 documents with DL. But respondent No.2 remained absent and she has placed exparte and not she has also produced any DL. Ex.R.2 letter discloses as follows:
"kindly refer to your instruction in connection with the verification of DL from LA, Faridabad.
Accordingly, he visited the office of LA, Faridabad. There my letter along with the enclosures was handed over to licensing clerk for their verification and report obtained that the DL No.55862/09 was NOT issued in the name of Mr. Shamsher S/o. Sher Mohd., as per authority record. So it is a FAKE DL."
The requisite written endorsement as obtained from Licensing Authority, Faridabad is enclosed, on the copy of DL. At Ex.R.5 is DL obtained by the police sent for the verification. At Ex.R.4 postal particulars are all the 14 MVC.No.7331/2012 SCCH-22 letters sent. Ex.R.5 is the Translation of at Ex.R.5 which the translation of RTO endorsement is as follows:
"DL No.55862/09 Samsher Khan S/o. Sher Mohammad R/o.64/34 Bata Chowk, Faridabad, there is no such record is present by this name is our office".
At Ex.R.5 clearly endorsement made by the RTO of Faridabad, Haryana state and above endorsement is clear with DL copy with police documents said to be belonging to the driver is not valid and genuine and it is a fake DL.
20. The contents of Ex.R.5 with endorsement by the concerned RTO with Original signature and seal have been clearly proved. It is a public document. Respondent No.1 tried to prove the endorsement at Ex.R.5 and summons was issued by this court to RTO on 09.10.2013 by RPAD and again it was re issued on 14.01.2014 and again re issued on 21.02.2014. But the witness could not be secured. Again it was respondent-issued by RPAD 15 MVC.No.7331/2012 SCCH-22 on 23.09.2014. Since summons was not returned, there was long period and respondent No.1 side is taken as closed and posted for arguments. Again respondent No.1 counsel filed IA U/s151 of the CPC for issue of summons to the said witness. But later on it was not pressed since the RTO Faridabad Haryana State situated at a long distance, respondent No.1 could not secure presence of the witness. Hence, from the endorsement at Ex.R.5, it is clearly held that it was fake DL and the driver did not posessed DL. Hence, respondent No.1 is not liable to pay above compensation. In this regard respondent No.1 relied citation reported in SC-2008-76, in the case between Premkumari and others Vs. Prahlad Dev and others:-
1. Leave granted.
"Whether the Tribunal was right in holding that the insurer was not liable as the driver had a fake licence is the question to be decided in this appeal".16 MVC.No.7331/2012
SCCH-22 "10. In the light of the various principles, the factual finding of the Tribunal, namely, the second respondent, driver was not holding a valid licence on the date of the accident.
21. The counsel for petitioner relied upon the decisions reported in:
(1) 2011 ACJ 1464 between S. P. Hegged Vs. S. H. Naik and another.
(2) 1999 ACJ 171 between Rukamani and others Vs. New Assurance Co. Ltd., and others. (3) 1999 ACJ 1318 between H. G. Ramachandra Rao Vs. Srikanth and others.
And submitted that respondent No.2 has not proved that the DL is fake and they have not examined RTO, RC Owner and driver and hence, prays to fix the liability on respondent No.1. But as already discussed at above, respondent No.1 has made efforts to examine RTO, RC Owner and driver but they could not be secured. Hence as per the citations relied on by the respondent No.1 they 17 MVC.No.7331/2012 SCCH-22 have clearly proved that the DL of the driver in this case is fake. Hence, the liability on respondent No.1 cannot be fixed.
Further as per the decision relied on by the 1st respondent reported in:-
1. AIR 2011 SC 2436 between Jawahar Singh vs. Bala Jain & ors.
2. AIR 1997 SC 3824 between United India Insurance Co. Ltd., vs. Gian Chand and others 1st respondent is not liable to pay the compensation as there was no driving licence and 2nd respondent alone is liable to pay the compensation.
The 1st respondent is not liable to indemnify the insurer. Hence, Respondent No.2 alone is liable to pay compensation to the petitioner with interest at 8% p.a. from the date of petition till realization. Hence, I answer Issue No.2 in the affirmative accordingly.
22. Issue No.3: In the light of my findings on Issue Nos.1 and 2, I proceed to pass the following: 18 MVC.No.7331/2012
SCCH-22 ORDER The claim petition filed by the petitioners under Sec.166 of Motor Vehicle's Act, 1989 is hereby allowed against Respondent No.2 in part with cost.
The claim petition is hereby dismissed against Respondent No.1 The petitioners are entitled for total compensation of Rs.6,20,000/- (Rupees Six Lakhs Twenty thousand only) with interest at 8% p.a. from the date of petition till realisation.
The Respondent No.2 alone is held liable to pay the above said compensation to the petitioners and directed to deposit the same within 30 days from the date of the award.
Petitioners No.1 & 2 are the wife and daughter of the deceased. Hence, Petitioners No.1 & 2 are entitled for 50% each share in the compensation amount.
On deposit of compensation amount, 50% of the compensation amount awarded to 19 MVC.No.7331/2012 SCCH-22 the Petitioners No.1 and 2 with accrued interest shall be kept in Fixed Deposit in their names, for a period of three years in any of the Nationalized or scheduled Banks of their choice Advocate fee is fixed at Rs.1,000/-. Draw award accordingly.
(Dictated to the Stenographer through online, corrected, revised and then signed and pronounced by me in the Open Court dated this the 13th day of March 2015).
(N.SUBRAMANYA) Member, MACT & XX ASCJ Bangalore.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PETITIONERS:
PW1 Smt. A. Chamundeshwari LIST OF DOCUMENTS MARKED ON BEHALF OF PETITIONERS:
Ex.P1 Copy of FIR
Ex.P2 Copy of Complaint
Ex.P2(a) Copy of Translation of complaint in English
Ex.P3 Copy of Charge sheet
Ex.P4 Copy of Sketch
Ex.P5 Copy of Accident information report
Ex.P6 Copy of PM report
Ex.P7 Salary certificate
Ex.P8 Notarised copy of house hold card
20 MVC.No.7331/2012
SCCH-22
Ex.P9 Copy of inquest mahazar in Telugu language,
Ex.P9(a) Copy of Translation of inquest mahazar in
English language
LIST OF WITNESSES EXAMINED ON BEHALF OF RESPONDENTS:
RW1 Sri.Kumar B.G. LIST OF DOCUMENTS MARKED ON BEHALF OF RESPONDENTS:
Ex.R1 True copy of the policy Ex.R2 Letter dtd.24.07.2013 along with DL Ex.R3 Copy of the letter dtd:08.07.2013 Ex.R4 Online delivery status Ex.R5 Copy of DL with RTO endorsement
Ex.R5 (a) English translated copy of RTO endorsement Member, MACT & XX ASCJ , Bangalore.
**