Bangalore District Court
Yallamma vs Iffco Tokyo General Ins on 14 December, 2015
SCCH-14 1 MVC NO.2684/15
IN THE COURT OF 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. 2684/2015
Dated this the 14th day of December 2015.
PETITIONER : Yallamma
W/o Banappa
Aged about 60 years,
R/at No.47,
Sri.Gaviranganatha Nilaya,
Mysore Lamps Layout,
C.N.Palya,
Bangalore-73.
(By pleader Sri.MGR)
V/s
RESPONDENTS : 1. IFFCO TOKYO GENERAL INS.,
CO.LTD.,
Sri.Shanti Towers,
5th floor, No.141, 3rd main,
East of NGEF Layout,
Kasturinagar,
Bangalore-43.
(Insurer of Scooter)
(By pleader Sri KCS)
2. MR.BALAJI SINGH
S/o Krishna Singh,
Tank Bund road,
Chinthamani Taluk & Town
Chikkaballapura Dist.,
(Owner of Scooter)
(Exparte)
SCCH-14 2 MVC NO.2684/15
JUDGMENT
This claim petition U/sec.166 of Motor Vehicles Act is filed by the petitioner for a compensation of Rs.10,00,000/- for the death of Banappa S/o late Hanumappa in a Road Traffic Accident.
2. Brief averments of the petition are as under:
The petitioner is the wife of the deceased Banappa. On 26.05.2015 at about 11.00 A.M., the deceased was going on the left side of footpath along with his brother's son Manjunatha at Gajanana circle, Chinthamani town. Whey they reached in front of CANARA Bank ATM, at that time, TVS WEGO Scooter bearing No.KA-40-S-9896 ridden by its rider with high speed, in rash and negligent manner came and dashed against the said Banappa. Due to impact, the said Banappa fell down and sustained severe injuries to head and all over the body. Immediately, the injured Banappa was taken to Govt., Hospital at Chinthamani, and then, he was shifted to NIMHANS Hospital, Bangalore for further treatment, but the said Banappa succumbed to injuries on the same day at about 12.45 P.M., After the postmortem, the dead body was handed over the petitioner. Prior to the accident, the deceased was hale and healthy, was aged 70 years, was a retired Govt., Teacher (Head Master) and was getting a pension of Rs.20,000/- p.m., After death of the deceased, the petitioner is put to lot of mental depression, agony and financial loss.
Chinthamani Town police have registered a case against the rider of TVS WEGO Scooter bearing No.KA-40-S-9896 for the offences punishable U/s 279, 304(A) of IPC. The respondents are the SCCH-14 3 MVC NO.2684/15 insurer and owner of the TVS WEGO Scooter bearing No.KA-40-S- 9896 and are jointly and severally liable to pay compensation. Therefore, the petitioner has sought for awarding compensation of Rs.10,00,000/- for the unnatural death of Banappa.
3. In pursuance of notice, the respondent no.1 has appeared before the Court through his counsel and filed his written statement. Notice was not served upon the respondent no.2 in the ordinary course. Hence, notice was issued against him by substitute method i.e., by affixture. Inspite of it, the respondent no.2 remained absent and hence, he is placed exparte.
The respondent no.1 has admitted the issuance of policy in favour of respondent no.2 in respect of TVS WEGO Scooter bearing No.KA-40-S-9896, but he has denied the other averments of the petition as false. He has contended that the petition is not maintainable, that there was no negligence on the part of the rider of insured vehicle, that insured and police have not complied with their mandatory duties, that the insured has violated the terms and conditions of the policy, that he is not liable to indemnify the respondent no.2. He has denied the age, occupation, income of the deceased, treatment taken and amount spent towards medical expenses. He has denied the relationship between the petitioner and the deceased. Hence, he has sought for dismissal of the petition with exemplary cost.
4. On the basis of the above pleadings, the following issues were framed:
SCCH-14 4 MVC NO.2684/15ISSUES
1. Whether the petitioner proves that H. Banappa s/o Late Hanumappa died due to injuries sustained by him in an accident occurred on 26.05.2015 at about 11.00 a.m., at Gajanana Circle, Chinthamani Town, Chikkaballapura District, arising due to rash and negligent riding of rider of TVS VEGO scooter bearing No. KA-40-S-9896?
2. Whether the petitioners are entitled for compensation? If so, how much and from whom?
3. What Order or Award?
5. During the evidence, the petitioner has examined herself as PW.1 and got marked documents as Ex.P1to Ex.P9. The respondent no.1 has not adduced any evidence on his behalf.
6. Heard the arguments and perused the records.
7. My findings to the above issues are as under:-
ISSUE No.1: In Affirmative.
ISSUE No.2: In Affirmative. For Rs.6,15,000/-
from the respondent no.1.
ISSUE No.3 : As per final order :
for the following:
REASONS
8. ISSUE NO.1:- The petitioner has relied upon her own oral and documentary evidence at Ex.P1 to 9 to prove her case. The respondent no.1 is the insurer and the respondent no.2 is the owner of TVS WEGO Scooter bearing No.KA-40-S-9896. The respondent no.1 has contested the matter and the respondent no.2 remained exparte. The respondent no.1 has admitted the occurrence of accident, death of Banappa due to injuries sustained SCCH-14 5 MVC NO.2684/15 by him in the accident, but he has denied that the accident has occurred due to rash and negligent riding of the rider of TVS WEGO Scooter bearing No.KA-40-S-9896. He has further contended that the accident was due to sole negligence of the deceased himself, but he has not produced any evidence to substantiate his contention.
9. PW.1 Yallamma has reiterated entire averments of the petition. Except bare denials, nothing is elicited from her in cross- examination. However, it is an admitted fact that PW.1 is not an eye witness to the accident. Hence, her evidence regarding manner of accident is inadmissible, but her evidence regarding death of Banappa due to injuries sustained by him in the accident is admissible and believable. There is nothing on record to believe that the said Banappa died due to some other reason.
10. The petitioner has produced copies of police records to prove the manner of accident. Copy of FIR, copy of sketch, copy of panchanama, copy of IMV report, copy of inquest, copy of PM report and copy of chargesheet are at Ex.P1 to 7 which corroborate oral evidence of PW.1 regarding manner of accident. On perusal of inquest panchanama and PM report, it reveals that the said Banappa died due to injuries sustained by him in the accident occurred on 26.05.2015 at about 11.00 A.M., and he succumbed to the injuries on the same day at about 12.45 P.M., The other police records disclose that Chinthamani Town police have registered Cr.No.187/2015 regarding the accident, investigated the matter and filed chargesheet against the rider of TVS WEGO Scooter bearing No.KA-40-S-9896 for the offences punishable SCCH-14 6 MVC NO.2684/15 U/Sec.279, 304-A of IPC and U/Sec. 187 of MV Act. There is no delay in lodging complaint. Son of the deceased by name Manjunath lodged complaint at 02.30 P.M., on the same day. The sketch and panchanama go to show that the accident has occurred due to negligence of the rider of scooter. IMV report reveals that there were no damages on the scooter, but that itself is not a ground to disbelievable the case of the petitioner. The chargesheet is prima-facie evidence regarding the negligence of the rider of scooter. There is nothing on record to disbelieve the contents of chargesheet and to hold the chargesheet is collusive or defective. Brake system of the scooter was in order and it is opined by the IMV authority that the accident was not due to any mechanical defects of the vehicle. The respondent no.1 has not examined the rider of scooter to rebut the oral and documentary evidence produced by the petitioner. There is no evidence to substantiate the defence of the respondent no.1 that the accident has occurred due to negligence of the deceased and there was no negligence on the part rider of scooter. Hence, I believe oral evidence of PW.1 and contents of Ex.P1 to 7. The documentary evidence corroborates the oral evidence of PW.1 regarding manner of accident. Therefore, I hold the petitioner has succeeded to prove that her husband Banappa died due to injuries sustained by him on 26.05.2015 at about 11.00 A.M., near Gajanana Circle Chinthamani Town in an accident arising due to rash and negligent riding of the rider of scooter. There is nothing on record to rebut the evidence of petitioner. Hence, I answer the issue in affirmative.
SCCH-14 7 MVC NO.2684/1511. ISSUE NO.2: It is pleaded by the petitioner that the deceased was aged 70 years, was retired Head Master and was getting a pension of Rs.20,000/- p.m., The respondent no.1 has denied the age, occupation and income of the deceased. The petitioner has relied upon her own oral evidence and contents of Ex.P5, 8 and 9 to prove the age, occupation and income of the deceased. The respondent no.1 has not produced any evidence to rebut the case of the petitioner. Ex.P5 and 6 are copies of inquest panchanama and PM report wherein the age of the deceased is shown as 65 years. Ex.P8 is copy of ration card in which the age of the deceased is mentioned as 65 years as on 05.11.2009. There is nothing on record disbelieve the contents of ration card. As the contents of ration card were recorded in the year 2009, the age of the deceased comes to 70 years as on the date accident. There is nothing on record to believe that the deceased was aged more than 70 years. Appropriate multiplier for the said is 5.
12. The occupation of the deceased is recorded as retired teacher in inquest panchanama. Bank statement at Ex.P9 reveals that the deceased was getting a pension of Rs.18,000/- plus p.m., These two documents corroborate the evidence of PW.1 regarding occupation and income of the deceased. There is no evidence to disbelieve the oral evidence of PW.1 and contents of Ex.P5 and 9. However, an admission regarding family pension is obtained from PW.1 in cross-examination. She has admitted that 50% of the pension of her husband is payable to her till her death. The counsel for the respondent no.1 has argued that the admission of SCCH-14 8 MVC NO.2684/15 PW.1 goes to show that the petitioner is going to receive 50% of pension of her husband as family pension till her death, that loss of dependency of the petitioner is only 50% of the pension amount.
13. On perusal of oral evidence of PW.1 and contents of inquest panchanama and bank statement, I am of the opinion that the deceased was retired Head Master and was getting a pension of Rs.18,000/- plus p.m., as on the date of accident. Hence, I have no hesitation to hold the deceased was a retired head master and was having income of Rs.18,000/- p.m., His annual income comes to Rs.2,16,000/-. The petitioner is the wife of the deceased. There is nothing on record to believe that she was independent and was not depending upon of the income of the deceased. Hence, she is entitled for compensation under all heads.
14. The counsel for the respondent no.1 has argued that 50% of the pension amount shall be considered as the income of the deceased for calculating loss of dependency, but it is to be noted that the petitioner would be entitled for family pension even if her husband had died due to some other reason. Hence, argument of the counsel for respondent no.1 is unacceptable. The annual income of the deceased was Rs.2,16,000/-. He would have spent 50% amount, if he had survived. Therefore, 50% amount shall have to be deducted towards personal expenses of the deceased. Since, he was aged more than 70 years and was a pensioner, there cannot be any addition towards future prospects. 50% of Rs.2,16,000/- comes to Rs.1,08,000/- p.a., Therefore, loss of dependency of the petitioner would be Rs.1,08,000X5=Rs.5,40,000/-.
SCCH-14 9 MVC NO.2684/1515. The petitioner has lost her husband. She lost companionship of her husband at the age of 60 years. She has spent amount for transportation of dead body and funeral expenses. She has lost love and affection of her husband. Hence, I am of the opinion that the petitioner is entitled for a compensation of Rs.25,000/- towards love and affection, Rs.25,000/- towards transportation of dead body and funeral expenses and Rs.25,000/- towards loss of consortium. Thus, the petitioner is entitled for just and reasonable compensation of Rs.6,15,000/-. She is further entitled for interest @ 9% p.a., from the date of petition till the date of payment.
16. The respondents are the insurer and owner of TVS WEGO Scooter bearing No.KA-40-S-9896. The accident has occurred due to rash and negligent riding of the rider of said scooter. Therefore, the respondents are jointly and severally liable to pay compensation to the petitioner as stated above. The respondent no.1 has contended that the respondent no.2 has violated the terms and condition of the policy, but his contention remained as pleading without any proof. It is an admitted fact that the TVS WEGO Scooter bearing No.KA-40-S-9896 was duly insured and the policy was in force on the date of accident. Hence, the respondent no.1 is liable to indemnify the respondent no.2 and to compensate the petitioner. He is liable to deposit the amount before the court. Consequently, I answer the issue as above.
SCCH-14 10 MVC NO.2684/1517. ISSUE No.3 : In view of above discussion and findings, I proceed to pass following :
ORDER The claim petition U/sec.166 of Motor Vehicles Act filed by the petitioners is partly allowed with cost.
The petitioner is entitled for a compensation of Rs.6,15,000/- with interest @ 9% p.a., from the date of petition till the date of payment.
The respondents are jointly and severally liable to pay compensation of Rs.6,15,000/- with interest to the petitioners. In view of policy, the respondent no.1 is directed to deposit the amount before the court within one month from the date of Award.
After deposit of the amount, Rs.2,50,000/- out of the share of the petitioner shall be deposited in his name in any nationalized or scheduled bank for a period of 3 years. Balance amount with interest shall be released in favour of the petitioner through account payee cheque with proper identification.
Advocate's fees 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 14th day of December 2015.) (Basavaraj Chengti) XVI ADDL.JUDGE, Court of Small Causes & MACT., BANGALORE.SCCH-14 11 MVC NO.2684/15
ANNEXURE WITNESSES EXAMINED AND DOCUMENTS MARKED FOR PETITIONERS AND RESPONDENTS:
Petitioner's PW.1 Yallamma Respondents Nil Ex.P1 - Copy of FIR with complaint E.xP2 - Copy of Sketch Ex.P3 - Copy of Spot Panchanama 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 Ration Card Ex.P9 - Bank Statement Respondent's Nil XVI ADDL.JUDGE, Court of Small Causes & MACT., BANGALORE.SCCH-14 12 MVC NO.2684/15
Dt.14.12.2015 P-MGR R1 -KCS R2-Exparte For Judgment Order pronounced in open court vide separate judgment.
ORDER The claim petition U/sec.166 of Motor Vehicles Act filed by the petitioners is partly allowed with cost.
The petitioner is entitled for a compensation of Rs.6,15,000/- with interest @ 9% p.a., from the date of petition till the date of payment.
The respondents are jointly and severally liable to pay compensation of Rs.6,15,000/- with interest to the petitioners. In view of policy, the respondent no.1 is directed to deposit the amount before the court within one month from the date of Award. After deposit of the amount, Rs.2,50,000/- out of the share of the petitioner shall be deposited in his name in any nationalized or scheduled bank for a period of 3 years. Balance amount with interest shall be released in favour of the petitioner through account payee cheque with proper identification.
Advocate's fees is fixed at Rs.5,000/-. Draw Award accordingly.
XVI ADDL.JUDGE, Court of Small Causes & MACT., BANGALORE.SCCH-14 13 MVC NO.2684/15
AWARD SCCH.14 BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA: BANGALORE CITY MVC No. 2684/2015 PETITIONER : Yallamma W/o Banappa Aged about 60 years, R/at No.47, Sri.Gaviranganatha Nilaya, Mysore Lamps Layout, C.N.Palya, Bangalore-73.
(By pleader Sri.MGR) V/s RESPONDENTS : 1. IFFCO TOKYO GENERAL INS., CO.LTD., Sri.Shanti Towers, 5th floor, No.141, 3rd main, East of NGEF Layout, Kasturinagar, Bangalore-43.
(Insurer of Scooter) (By pleader Sri KCS)
2. MR.BALAJI SINGH S/o Krishna Singh, Tank Bund road, Chinthamani Taluk & Town Chikkaballapura Dist., (Owner of Scooter) (Exparte) WHEREAS, this petition filed on..............................
by the petitioner/s above names u/s 166 of the MVC Act praying SCCH-14 14 MVC NO.2684/15 for the compensation of Rs.................. (Rs...........................................................................................) 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, Member, Court of Small Causes, Bangalore, in the presence of Sri/Smt. Advocate for petitioner/s and of Sri/Smt. Advocate for respondent.
ORDER The claim petition U/sec.166 of Motor Vehicles Act filed by the petitioners is partly allowed with cost.
The petitioner is entitled for a compensation of Rs.6,15,000/- with interest @ 9% p.a., from the date of petition till the date of payment.
The respondents are jointly and severally liable to pay compensation of Rs.6,15,000/- with interest to the petitioners. In view of policy, the respondent no.1 is directed to deposit the amount before the court within one month from the date of Award.
After deposit of the amount, Rs.2,50,000/- out of the share of the petitioner shall be deposited in his name in any nationalized or scheduled bank for a period of 3 years. Balance amount with interest shall SCCH-14 15 MVC NO.2684/15 be released in favour of the petitioner through account payee cheque with proper identification.
Advocate's fees is fixed at Rs.5,000/-.
Given under my hand and seal of the Court this...........day of....................2015.
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 16 MVC NO.2684/15 SCCH-14 17 MVC NO.2684/15