Bangalore District Court
Mr.Ritesh Gupta vs The Manager on 16 July, 2021
BEFORE THE CHIEF JUDGE, COURT OF SMALL
CAUSES, MEMBER PRL.MOTOR ACCIDENT CLAIMS
TRIBUNAL AT BENGALURU
DATED THIS THE 16th DAY OF JULY 2021
PRESENT: Smt. PRABHAVATHI M. HIREMATH,B.A., L.L.B.(Spl.)
MEMBER, PRL. M.A.C.T.
M.V.C. No. 6160/2018
PETITIONERS: 1. Mr.Ritesh Gupta,
S/o. Kailash Chand Gupta,
Aged about 38 years,
R/at Kailash Bhavan,
Road No.2,
Opp.Meo Boarding Alwar,
Rajasthan301 001.
2. Master Vihaan Gupta,
S/o. Ritesh Gupta,
Aged about 9 years,
Flat No.817, CA Apartments,
Paschim Vihar,
Delhi110 063.
Both are presently R/at:
Flat No.G1108,
Mantra Tranquil Apartments,
Gubblala village,
Kanakapura Road,
Bangalore.
Since petitioner No.2 is minor
Rep. By Natural Guardian Father/ 1st
petitioner
(By Smt.Lakshmidevi K., Advocate)
SCCH-1 2 MVC No.6160/2018
Respondents: 1. The Manager,
K.S.R.T.C,
Bangalore Central Office,
Double Road,
Shanthi Nagar,
Bangalore 560 027.
(R.C.Owner and Insurer of KSRTC
Bus No.KA42F2168)
(By Sri..M.S.Basavaraju, Avocate)
*******
JUDGMENT
This is a petition filed under Section 166 of the of the Motor Vehicles Act, 1989 by the petitioners for awarding compensation of Rs.1,50,00,000/ with interest and costs for the death of Smt.Nishi Khandelwal, W/o. Ritesh Gupta in the Road Traffic Accident.
2. The brief facts of the petition are as follows:
On 04.09.2018 at about 7 pm., Smt.Nishi Khandelwal was proceeding on motor cycle as a pillion rider being driven by her husband on motor cycle SCCH-1 3 MVC No.6160/2018 bearing No.RJ02SU3866. Her husband was riding the motor cycle, when they were proceeding near Maheshwaramma temple, Doddalkalsandra, Kanakapura main road, a KSRTC bus No.KA42F 2168, came in rash or negligent manner in high speed and dashed against the motor cycle. Due to the impact deceased and pillion rider fell down, she sustained grievous injuries, she was shifted to Astra Hospital, Konanakunte, Bangalore and she has taken treatment as inpatient from 04.09.2018 to 29.09.2018 and ultimately succumbed to the injury. After the post mortem dead body was handed over to the petitioners, by spending more than Rs.20 lakhs they have performed funeral obsequies, last rites ceremony at home town.
3. Prior to the accident deceased was hale and healthy aged about 37 years working as Assistant Manager, Media Sales in Auto Portal and getting income of Rs.50,000/ per month. She was SCCH-1 4 MVC No.6160/2018 contributing entire income to the needs of the family consisting of the Petitioner and her 9 years minor son who deprived of love and affection. Only due to the rash and negligent act of driving on the part of the KSRTC bus accident occurred. Therefore respondent is liable to pay compensation of Rs.1,50,00,000/ as claimed.
4. After service of notice of this petition, respondent appeared through its Advocate and filed Written Statement as under.
The brief facts of the Written Statement filed by the respondent is as follows:
The petition is bad for misjoinder and non joinder of parties, the mode of accident pleaded in the petitioner is denied. The owner and insurance company of the two wheeler are necessary parties to the present proceedings. Only due to the rash or negligent driving on the part of the two wheeler, accident occurred and there is no rash or negligent act SCCH-1 5 MVC No.6160/2018 of driving on the part of the KSRTC bus driver and other averments in the petition are denied in toto by stating that petitioners be put to strict proof of the same.
When the BMTC bus was proceeding on Kanakapura main road in slow speed as labour work was under progress, at that time the rider of the two wheeler Active Honda came from behind rode by the rider and the bus came in rash or negligent manner and he lost balance and dashed against the stones which were spread on the left side of the road as a result the deceased fell down in front of the bus and accident occurred. The compensation claimed by the petitioners is exorbitant and the respondent is not liable to pay the compensation and prayed to dismiss the petition.
5. From the above stated pleadings of the parties, my predecessor in Officer has framed the following issues :
SCCH-1 6 MVC No.6160/2018
1. Whether the Petitioners prove that the deceased succumbed to injuries in a Motor Vehicle Accident that occurred on 04.09.2018 at about 7.00 p.m. near Mahaeshwaramma Temple, Doddakalasandra, Kanakapura Main Road, Bangalore, within the jurisdiction of Kumaraswamy Layout Traffic police station, on account of rash and negligent driving of the KSRTC bus bearing registration No.KA 42F2168 by its driver when the deceased was proceeding as pillion rider in a motor cycle bearing reg. No.RJ02SU3866 ?
2. Whether the respondent proves that the accident has occurred on account of negligent act of rider of motor cycle bearing reg.No.RJ02SU3866 ?
3. Whether the petitioners are entitled for compensation ? If so, how much and from whom?
4. What order ?
6. In support of the petitioners case, petitioner No.1 is examined as PW1 and 2 witnesses are examined as PW2 and 3, got marked in all 35 documents as Ex.P.1 to P.35. In support of the respondent case, one witness is examined as RW1.
7. Heard arguments on both sides.
SCCH-1 7 MVC No.6160/2018
8. For the reasons stated in the subsequent paras, I answer issues as follows:
Issue No.1 ... In the Affirmative, Issue No.2 ... In the Negative, Issue No.3 ... Accordingly, Issue No.4 ...As per final order for the following: REASONS
9. Issue No.1 and 2 : These 2 issues are with reference to the negligent act of the driving on the part of the KSRTC bus or on the part of the rider of the two wheeler i.e., the petitioner No.1, therefore two issues are taken together for discussion. To prove the rash or negligent driving on the part of the KSRTC bus driver, the petitioners relied on evidence of PW.1 and on police records. Ex.P.1 is the FIR with complaint, Ex.P.2 is the spot sketch, Ex.P.3 is the spot mahazar, Ex.P.4 is the IMV report and Ex.P. 8 is the charge sheet.
10. On the contrary to prove the rash or negligent act of driving on the part of the rider of the SCCH-1 8 MVC No.6160/2018 motor cycle, respondent relied on the oral evidence of the driver of the bus RW.1. With reference to the evidence of PW.1 and RW.1 there is oath against oath. In the chief examination as stated that at the time of over taking the two wheeler by bus it dashed to the two wheeler therefore he and his wife who was pillion rider fall on the ground and bus rear wheel run over the deceased. On the contrary RW.1 driver of the bus has deposed that at the time of accident there were other bus and other vehicles proceeding ahead of the bus, PW.1 tried to over take the bus from left side of the bus at that time he dashed to the stone and fell down and accident occurred.
11. To substantiate the oral evidence, petitioners relied on the above said police record. On the contrary during the course of cross examination of RW.1 he has deposed that he tried to lodge the complaint against the rider of the two wheeler but police have not received his complaint and he further SCCH-1 9 MVC No.6160/2018 deposed that he did not informed the same to the higher Officer or he has not filed any private complaint as police have failed to receive his complaint. From going through Ex.P.3 - spot panchanama, Ex.P.2 - spot sketch it is clear that there is no mention regarding the existence of either stone or material stored for the metro work. Therefore the combined reading of answer given by RW.1 during the course of cross examination and the specific contention taken by respondent that there was no dash and the two wheeler dashed to the stone thereby the rider and pillion rider fell down on the ground is not probablized.
12. The learned advocate for respondent argued that, the burden is on the petitioner to prove the negligent act of the driving on the part of the respondent. In support of his arguments he relied decision reported in 2007 ACJ 1284 and (2007) 13 Supreme Court Cases page 476. In the light of the principles laid down their lordships now we can SCCH-1 10 MVC No.6160/2018 consider the present facts and evidence adduced by parties.
13. The learned advocate for respondent vehemently argued that from Ex.P.4 Motor Vehicle Accident Report, it is clear that there is no fresh visible damages due to the impact on both vehicles.
14. The absence of visible damages itself is not sufficient to come to the conclusion that there is no dash mere touch of bus to the two wheeler is sufficient to lost control over the two wheeler and fall by the rider and the pillion rider. Therefore the evidence of PW.1 is believable one which is supported by police records.
15. The learned advocate for respondent vehemently argued that mere filing of charge sheet is not sufficient to come to conclusion that there is rash or negligent act of driving on part of person and against whom charge sheet is filed. In view of my observation that in the scene of offence, existence of SCCH-1 11 MVC No.6160/2018 either stone or material stored for purpose of metro construction is not found. Thereby evidence of PW.1 is believable one mere filing charge sheet by police is not the only consideration.
16. Therefore from available evidence on record, the petitioner proved that only due to rash or negligent act of driving on the part of the KSRTC bus driver accident occurred. On the contrary available evidence on record is not sufficient to prove that due to negligent driving on the part of rider of two wheeler i.e. PW.1 accident occurred. Therefore issue No.1 is answered in the Affirmative and issue No.2 is answered in the Negative.
17. Issue No.3: In this case, petitioners have claimed total compensation of 1,50,00,000/. It is the case of petitioners that deceased was working and earning Rs.50,000/ per month. Further the petitioners relied on Ex.P.10 to Ex.P.20 documents and oral evidence of PW.3. PW.3 in his oral evidence SCCH-1 12 MVC No.6160/2018 deposed that deceased was working in Autoportal (Creative Web Media Private Limited) as Assistant Manager Media Sales from 01.04.2018 to 29.09.2018. She was drawing annual salary of Rs.5,00,000/ + Rs.1,00,000/ incentive total of Rs.6,00,000/ per annum.
18. During the course of cross examination suggestion was made to PW.3 to the effect that she was not working in the company that was denied. On the contrary he has deposed that the deceased was the permanent employee of the company and PW.3 has produced Ex.P.29 to 35 records. Ex.P.29 and 30 documents are authorization letter and ID card of PW.3. Ex.P.31 employment contract and Ex.P.32 are the salary slips, Ex.P.33 is the Income Tax Computation Sheet, Ex.P.34 is the settlement letter for Group Insurance and Ex.P.35 is employee register extract. Ex.P.10 Income tax returns copies for the year 2016 - 17, 2017 18 and 2018 19 of the deceased. SCCH-1 13 MVC No.6160/2018 From that it is clear that she was the income tax assessee. Ex.P.11 is the Adhaar card of deceased and Ex.P.12 is the PAN card, Ex.P.13 is the ID issued by the Autoportal Company in favour of deceased. From Ex.P.17 to Ex.P.20 documents it is clear that an amount of Rs.40,129/ and the amount of Rs.44,160/ was net salary received by the deceased in between June 2018 to August 2018. As per the Ex.P.18 such amount was deposited to the account of the deceased by her employer. From these documents the petitioners proved that deceased was earning and working as an Assistant Manager - Media Sales in Auto Portal Limited.
19. The learned Advocate for respondent vehemently argued that during the course of cross examination of PW.1 he has clearly admitted that he is also working and earning at the time of accident and his annual income was Rs.18,50,000/ per annum now he is getting annual income of Rs.21,75,000/. SCCH-1 14 MVC No.6160/2018 In view of his independent source either petitioner No.1 or petitioner No.2 son of the deceased was not depending on the income of the deceased. Therefore petitioners are not entitled for compensation on the head of loss of dependency.
20. In support of his arguments he relied on the decision reported in ILR 2004 KAR 3268 (A. Manavalagan Vs. A. Krishnamurthy and others) ILR 2008 KAR 1561 (M/s. Oriental Insurance Company Ltd., Vs. Shivamma and Others) MFA No.10888/2007 dated 2nd April 2008. Judgment of Hon'ble High Court of Karnataka in MFA No.6630/2006 dated 6th August 2008.
21. From going through the above said judgment it is clear that, if petitioners are not the dependent on the income of the deceased then there are not entitled for compensation on the head of loss SCCH-1 15 MVC No.6160/2018 of dependency but entitled for compensation on the head of loss of estate.
22. From going through the Division Bench decision referred above reported in ILR 2004 Kar 3268 their lordships in para No.20 of the said judgment provided illustrations how to calculate loss of dependency and loss of estate. In sub para (i) to (iii) illustration of loss of dependent is provided. In sub para (iv) in para 20 their lordships provided illustrations how to calculate the loss of estate. For better appreciation reproduction entire sub para (iv) is necessary.
"(iv) If the deceased is survived by an educated employed wife earning an amount almost equal to that of her husband and if each was maintaining a separate establishment, the question of 'loss of dependency' may not arise. Each will be spending from his/her earning towards his living and personal expenses. Even if both pool their income and spend from the common income pool, the position will be the same. In such a case the amount spent for personal and living expenses by each spouse from his/her income will be comparatively higher, that is threefourth of his/her income. Each SCCH-1 16 MVC No.6160/2018 would be saving only the balance, that is one fourth (which may be pooled or maintained separately). If the saving is taken as onefourth (that is 25%), the loss to the estate would be Rs. 2250/ per month or Rs.
27000/ per annum, By adopting the multiplier of 14, the loss to estate will be Rs. 3,78,000/.
Note: The position would be different if the husband and wife, were both earning, and living together under a common roof, sharing the expenses. As stated in BURGESS v. FLORENCE NIGHTINGALE HOSPITAL (1955(1) Q.B. 349), 'when a husband and wife, with separate incomes are living together and sharing their expenses, and in consequence of that fact, their joint living expenses are less than twice the expenses of each one living separately, then each, by the fact of sharing, is conferring a benefit on the other'. This results in a higher savings, say, onethird of the income; In addition each spouse loses the benefit of services rendered by the other in managing the household, which can be evaluated at say Rs. 1,000/ per month or Rs. 12,000/ per annum). In such a situation, the claimant (surviving spouse) will be entitled to compensation both under the head of loss of dependency (for loss of services rendered in managing the household) and loss to estate (savings to an extent of onethird of the income that is Rs. 3,000/ per month or Rs. 36000/ per annum). Therefore, the loss of dependency would be 12000x14=168,000/ and loss to estate would be 36000x14=504,000/. In all Rs. 6,72,000/ will be the compensation".
23. Coming to the present case in hand from the fact it is clear that the deceased and present SCCH-1 17 MVC No.6160/2018 petitioners are living together in a common roof. If they are living together under a common roof then 1/3rd of the salary of the deceased is required to be taken as saving in addition of Rs.1,000/ per month towards benefit of service rendered by the deceased in managing house hold. Therefore in this case petitioners are entitled for loss of estate as well as Rs.12,000/ per annum loss of dependency towards the service rendered by deceased, in managing house hold.
24. It is the specific case of the petitioners that she was earning Rs.50,000/ per month. To substantiate the same the petitioners are relied on evidence of PW.3 and have been referred documentary evidence. From going through Ex.P.17 pay slips and Ex.P.18 summary of the account of deceased account it is clear that after deduction in the month of June 2018 an amount of Rs.40,129/ is deposited to the account of the deceased by her employer. During the SCCH-1 18 MVC No.6160/2018 course of cross examination of PW.3 a several questions were posed that allowance are not termed as a income but from going through Ex.P.18 it is clear that net pay was received by her every month. In view of the principle laid down by the Hon'ble Apex Court in the decision reported in 2017 ACJ 2700 (SC) (National Insurance Company Limited Vs Pranay Sethi and others), the income means exclusion of income tax in gross salary.
25. From these payslips it is clear that there is some verifcation in each month considering her getting allowance. Therefore an amount of Rs.40,129/ is taken as her income. Therefore to assess the loss of estate the income of the deceased is taken as Rs.40,129/ per month. 1/3 rd of it comes to Rs.13,376.333 ps. it is rounded off and taken as Rs.13,376/ per month. Annual loss of estate comes to Rs.1,60,512/.
SCCH-1 19 MVC No.6160/2018
26. From the documents produced by the petitioner Ex.P.11 it is clear that date of birth of deceased Nishi Khandelwal was 17.07.1981 therefore as on the date of accident she was 37 years old. As per 2009 ACJ 1298 (Sarala Verma Vs. Delhi Transport Corporation), the multiplier applicable to the present case is 15. Therefore the annual loss of estate is required to be multiplied by 15. (Rs.1,60,512/ X 15 = 24,07,680/) which comes to Rs.24,07,680/.
27. On the head of loss of dependency in managing house hold the petitioners are entitled for Rs.12,000/ per annum as per the decision referred above it is required to be multiplied by 15 which comes to Rs.1,80,000/ (Rs.12,000/ X 15) towards loss of dependency in managing household.
28. In this case the petitioners are claimed medical expenses for that the petitioners relied on Ex.P.20. Medical expenses are not produced by the SCCH-1 20 MVC No.6160/2018 petitioners. Ex.P.20 is the claim settlement letter of ICICI Lombard General Insurance Company, Vipul Medcorp Insurance TPA Private Limited, Religare Health Insurance Company. From going through Ex.P.20 it is clear that, the total bills submitted by the petitioners to the insurance company is for Rs.14,50,000/. Even though assured total amount is Rs.6,00,000/ as per the claim settlement letter but ultimately the insurance company has paid Rs.3,00,000/ only and disallowed is mentioned as Rs.11,50,000/.
29. Petitioners have not produced bill as they have submitted to the insurance company but from going through the Ex.P.22 to Ex.P.26 documents produced by PW.2 it is clear that the medical treatment was provided to deceased for a period of 26 days in a Astra Super Speciality Hospital and we can find the documents therefore, Ex.P.20 is sufficient to come to the conclusion that the petitioner No.1 SCCH-1 21 MVC No.6160/2018 incurred medical expenses of Rs.14,50,000/ and he has reimbursed only Rs.3,00,000/ therefore balance amount of Rs.11,50,000/ is awarded towards Medical Expenses.
30. From Ex.P.26 it is clear that from 04.09.2018 to till the death of deceased she was treated in the Astra Super Speciality Hospital for a period of 26 days. Therefore the compensation of Rs.26,000/ is awarded to the petitioners towards Food, Nourishment and Attendant charges.
31. On the conventional heads as per the principle laid down by the Hon'ble Apex Court in the decision reported in 2017 ACJ 2700 (SC) (National Insurance Company Limited Vs Pranay Sethi and others) referred above an amount of Rs.15,000/ is awarded towards Funeral Expenses and Rs.40,000/ towards Consortium.
32. Therefore, the petitioners are entitled for SCCH-1 22 MVC No.6160/2018 compensation as under: Sl. Head of Compensation Calculation Amount/Rs No. Rs.
i Loss of estate 1,60,512, X 15 24,07,68000 multiplied ii Loss of dependency in 12,000 x 15 1,80,00000 managing household iii Medical Expenses 11,50,00000 iv Food nourishment and 26,00000 attendant charges v Funeral expenses 15,00000 vi Loss of consortium to 40,00000 petitioner No.1 Total 38,18,68000
33. Thus, the petitioners are awarded compensation of Rs.38,18,680/ and the same is distributed in the ratio of 50:50.
34. The respondent is the RC owner and insurer is liable to pay the compensation amount with interest at 6% p.a. from the date of the petition till realisation. Respondent is directed to deposit the compensation amount within 2 months. For the above said reasons, Issue No.3 is answered accordingly. SCCH-1 23 MVC No.6160/2018
35. Issue No.4 : In view of the discussions made above, I proceed to pass the following: ORDER The petition filed by the petitioners is allowed in part against the respondents.
The petitioners are entitled for compensation of Rs.38,18,680/ with interest at the rate of 6% per annum from the date of petition till realisation.
The respondent is liable to pay the compensation amount with interest and it is directed to pay the compensation amount within two months from the date of this order.
The compensation amount is apportioned between the petitioners at 50:50.
Out of the compensation amount apportioned in favour of the petitioner No.1, 50% with proportionate interest is ordered to be invested in high yielding fixed deposit in his name in any of the nationalized or SCCH-1 24 MVC No.6160/2018 scheduled bank of his choice for a period of 5 years. Remaining 50% with proportionate interest is ordered to be released to the petitioner No.1 under proper identification.
Entire amount of petitioner No.2 with proportionate interest is ordered to be deposited in FD in any nationalized or scheduled bank till attaining majority.
Advocate's fee is fixed at Rs.1,000/ . Draw an Award accordingly.
(Dictated to the Stenographer, transcribed by her, corrected, signed and then pronounced by me in the Open Court on this the 16th day of July 2021) (PRABHAVATHI M.HIREMATH) Chief Judge, Court of Small Causes & Member, Prl. M.A.C.T. Bangalore.
ANNEXURES Witnesses examined on behalf of the petitioners:
P.W.1 : Ritesh Guptha
P.W.2 : Praveena
SCCH-1 25 MVC No.6160/2018
P.W.3 : Manish Kishore
Documents marked on behalf of the petitioners:
Ex.P1 : Copy of FIR and complaint
Ex.P2 : Copy of Spot Sketch
Ex.P.3 : Copy of Spot Mahazar
Ex.P4: Copy of IMV Report
Ex.P5 : Death intimation
Ex.P6 : Copy of P.M.Report
Ex.P7 Copy of Inquest Mahazar
Ex.P.8 Copy of Chargesheet
Ex.P.9 Death Certificate of deceased
Ex.P.10 IT returns for the Assessment year
201617, 201718 and 201819
Ex.P.11 & Notarized copy of Aadhaar Card and
12 PAN card of deceased (original
compared and returned)
Ex.P.13 Notarized copy of Employment
identity card of deceased (original compared and returned) Ex.P.14 Notarized copy of Aadhaar Card of petitioner No.1 (original compared and returned) Ex.P.15 Notarized copy of D.L. of petitioner No.1 (original compared and returned) Ex.P.16 Notarized copy of Aadhaar Card of petitioner No.2 (original compared and returned) Ex.P.17 Pay Slips for the month of June to August 2018 Ex.P.18 S.B.Account Bank Statement of ICICI Bank Ex.P.19 Form No.16 for the Assessment Year 201920 with income tax computation statement SCCH-1 26 MVC No.6160/2018 Ex.P.20 Claim Settlement letters of ICICI General Insurance Company, Dipul Met Corp insurance Company Pvt.Ltd and Deligate Health Insurance Company Ex.P.21 Flight ticket invoice Ex.P.22 Authorization letter Ex.P.23 Attested copy of MLC Register Extract Ex.P.24 Attested copy of Police intimation Ex.P.25 Attested copy of Death intimation Ex.P.26 Case sheet (2) Ex.P.27 19 xray films Ex.P.28 C.T.Scan films (9) Ex.P.29 Authorization letter Ex.P.30 Notarized copy of identity card (original compared and returned) Ex.P.31 Employment contract Ex.P.32 Pay slips for the months of April 2018 to September2018 Ex.P.33 Form No.16 along with Income Tax Computation sheet Ex.P.34 Settlement letter for Group Insurance payment with email confirmation letter Ex.P.35 Employee Register Extract Witnesses examined on behalf of the respondents :
RW1 Chandrashekara Aradya SCCH-1 27 MVC No.6160/2018 Documents marked on behalf of the respondents:
Nil ( PRABHAVATHI M.HIREMATH) Chief Judge, Court of Small Causes & Member, Prl. M.A.C.T. Bangalore.
*SR*