Bangalore District Court
Smt. Asha Latha B vs A.S.Prakash on 3 February, 2020
IN THE COURT OF III ADDL. JUDGE AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, BENGALURU. (SCCH-18)
Dated: This the 3rd day of February 2020
Present: SRI.MAHANTESH S.DARGAD
B.Sc., LL.B.,
III ADDL. JUDGE &
MEMBER, MACT
COURT OF SMALL CAUSES,
BANGALORE.
M.V.C.No.864/2018
Petitioners 1.Smt. Asha Latha B.,
Wife of Late Prahalad R.M.
Aged about 30 years,
2. Shri R.K.Manjunath,
Son of Late R.S.Kantharaj
Aged about 65 years,
3.Smt.P.S.Mangala,
Wife of R.K.Manjunath,
Aged about 56 years,
All are residing at No.833,
7th cross, 9th Block,
Nagarabhavi, II Stage,
Bengaluru North, Nagarabhavi,
Bengaluru-560 072.
(By Pleader Shri M.Manjunath)
V/s
2 SCCH-18 MVC 864/2018
Respondents 1.A.S.Prakash,
Son of Siddalingaiah,
Residing at No.75, Addigondanahalli,
Gubbi Taluk,
Tumkur,
Tumkur District.
(R.C.Owner of Eicher bearing
registration NO.KA-06-C-3120)
(By Pleader Shri C.Nandeesh)
2.Shri Ram General Insurance Company
Limited,
Office at No.4/5, 3rd floor,
S.V.Arcade, Bilekahalli main road,
Off. Banneghatta road, IIM Post,
Bengaluru-560 076.
Represented by its Manager,
(Policy No.418005/31/16/010076 valid
from 10.2.2016 to 9.2.2017)
(By Pleader Shri S.R.Murthy)
J U D G M E N T
The petitioners have filed this claim petition against the respondent U/S. 166 of M.V. Act for seeking compensation of Rs.1,00,00,000/- for the death of Prahalad R.M. son of Late Manjunath R.K. in a road traffic accident. 3 SCCH-18 MVC 864/2018
2. The brief contents of petition are as under:
On 20.11.2016 at about 1.30 a.m. Prahald R.M. was driving a car bearing No.KA-41-MA-6662 along with friends towards Bengaluru slowly and cautiously on B.M.road, when he reached near Ramohalli cross, at that time Eicher vehicle bearing NO.KA-06-C- 3120 which was driven by its driver in a rash and negligent manner so as to endanger human life and safety of others dashed against the car. Due to the impact, Prahalad sustained grievous injuries and succumbed to the injuries on the spot. Later on body was shifted to Rajarajeshwari Medical College and Hospital, wherein post mortem was conducted and body was handed over to the petitioners.
3. The contention of the petitioners is that, deceased Prahald was hale and healthy at the time of accident, aged about 30 years, Engineer by profession worked in NEC India Private Limited and was salary of Rs.4,30,900/- per annum and after 4 SCCH-18 MVC 864/2018 having experience and well worse in his field he had established a company in the name and style Kepran Info Soft Private Limited an establishment of Software Development by investing huge capital amount towards the establishment by accumulating huge loans and was earning Rs.1,00,000/- per month. Due to sudden demise of Prahalad petitioners have to shut down the establishment sustaining huge loss and they are undergoing great financial difficulties and they are not in a condition to repay the loan amount availed by the deceased. The accident occurred due to rash and negligent driving of the driver of the Eicher bearing Reg.No.KA- 06-C-3120 and as such, the respondents are jointly and severally liable to pay compensation to the petitioners. Contending the above facts, they pray for grant of compensation with interest and cost.
4. In response to the petition notice, the respondents have appeared before the court through their counsel and filed their written statement.
5 SCCH-18 MVC 864/2018
5. The brief contents of written statement of respondent No.1 are as under:
The respondent No.1 has contended that the petition filed by the petitioner is not maintainable either in law or on facts. Further this respondent has denied the petition averments in toto. Further contended that this respondent is the RC owner of eicher vehicle bearing NO.KA-06-C-3120 and the policy was in force as on the date of accident and the driver, who drove the said vehicle had valid and effective driving license. Further, this respondent has denied the age, occupation and income of the deceased and dependency of the petitioners upon the income of deceased and relationship of the petitioners with the deceased. Contending the above facts, he prays to dismiss the petition with cost.
6. The brief contents of written statement of respondent No.2 are as under:
The respondent No.2 has contended that the petition filed by the petitioner is not maintainable either in law or on facts. 6 SCCH-18 MVC 864/2018 Further admitted about the issuance of policy in respect of vehicle bearing No.KA-06-C-3120 and its validity. Further contended that neither the owner of the vehicle nor the jurisdictional police have complied mandatory provision u/s 134(c) and S. 158(6) of the M.V. Act in furnishing the better particulars. Further contended that the driver of the offending vehicle was not holding valid and effective driving license to drive the said vehicle. Further accident occurred due to the negligence of the deceased, as he was driving the car and without giving any signal suddenly came to the middle of the road and he was sole architect of the said alleged accident. Further contended that FIR clearly shows that deceased Prahalad was driving the car bearing No.KA-41-MA-6662 in a rash and negligent manner and dashed to Eicher, due to which, Eicher with loan had toppled to its left side, so no actionable negligence can be attributed against the driver of the Eicher lorry. Further contended that the accident due to the fault of deceased Prahalad R.M. as he was under the influence of alcohol and dashed to rear 7 SCCH-18 MVC 864/2018 portion of eicher. Further, this respondent has denied the age, occupation and income of the deceased and dependency of the petitioners upon the income of deceased and relationship of the petitioners with the deceased. Further contended that the compensation claimed by the petitioner is highly excessive, exorbitant and without any basis. Contending the above facts, he prays to dismiss the petition with cost.
7. On the basis of above pleadings, the following issues were framed:
1. Whether the petitioners prove that on Shri Prahalad R.M. Son of Manjunath R.K. died due to the injuries sustained by him in a motor vehicle accident that was taken place on 20.11.2016 at about 1.30 a.m. near Ramohalli cross, B.M.Road, Kumbalagodu, Kengeri, Bengaluru City involving Eicher vehicle bearing No.KA-06-C-3120 belonging to respondent No.2 and the said vehicle was insured with first respondent ?8 SCCH-18 MVC 864/2018
2. Whether the petitioners prove that the accident has mainly occurred due to rash and negligent driving of the driver of the said vehicle?
3. Whether the petitioners prove that, they are the only legal heirs and dependants of deceased?
4. Whether the petitioners are entitled for compensation as prayed? If so, at what rate from whom?
5. What order or award?
8. In order to prove the case, the petitioner No.1 is examined as PW1 and got marked the documents at Ex.P1 to Ex.P21, eye witness of the incident is examined as PW2.
9. In order to disprove the contention of the petitioners, the respondent No.2 has examined its official as RW1 and got marked the documents at Ex.R1 & Ex.R2.
10. Heard arguments.
11. My findings to the above issues are as under:
Issue No.1: Partly Affirmative 9 SCCH-18 MVC 864/2018 Issue No. 2: Partly Affirmative Issue No.3: Partly in Affirmative Issue No.4: Partly affirmative Issue No.5: As per final order for the following:
R E A S O N S
12. Issue No.1 & 2 : These issues are interconnected with each other, hence in order to avoid the repetition of facts, these issues are taken together for common consideration.
13. During the course of arguments, the learned counsel for the petitioners argued by reiterating the contents of petition and also evidence put forth by PW1 & PW2. Further contended that the petitioners have proved their case as contended in the petition by producing oral and documentary evidence. Accordingly, they pray to allow the petition.
14. The counsel for the respondent No.2 has argued that the deceased himself was solely responsible for the accident, as he 10 SCCH-18 MVC 864/2018 was under the influence of alcohol and dashed to the right rear portion of eicher, due to which eicher with load had toppled to its left side. Further argued that the petitioners have failed to prove the rash and negligent act of offending vehicle driver by producing proper documents. Therefore, prays to dismiss the claim petition.
15. At this juncture respondent No.2 has relied following decisions reported in
1) (2007) 13 Supreme Court Cases 476 in case of Oriental Insurance Company Limited Vs. Premlatha Shukla and others
2) ILR 2003 KAR 409 in case of P.Vralakshmi Reddy and others Vs. the Karnataka State Road Transport Corportion
3) ILR 2009 KAR 385 in case of Smt.Nasreen Banu and Others Vs. The divisional Manager and another
16. On rival contention urged by both the counsel, I, intend to discuss the merits of the case.
11 SCCH-18 MVC 864/2018
17. On perusal of the evidence available on record, it reveals that, to prove the case, the petitioner No.1 has examined as P.W.1 and another witness is examined as PW2. Further in support of their case, petitioners have produced the documents and the same are marked as Ex.P1 to Ex.P21. Thereafter, the counsel for the respondent No.1 has cross-examined the PW1 and PW2.
18. Further to prove the rash and negligent driving of the driver of the Eicher bearing No.KA-06-C-3120, petitioner has produced the prosecution papers same are marked the as Ex.P1 to Ex.P7 i.e., FIR with complaint, spot mahazar, rough sketch, IMV report, inquest report, P.M.report and charge sheet. On perusal of Ex.P1, it reveals that Kumalagodu police have registered case against the deceased Prahald bearing No.KA-41-MA-6662 in CR.469/2016. On perusal of Ex.P2 Mahazar and Ex.P3 sketch, it reveals that the alleged accident occurred in the middle of the 12 SCCH-18 MVC 864/2018 road. On perusal of other prosecution documents and charge sheet after completion of investigation, the I.O. has filed the charge sheet as against the drivers of both the vehicle bearing No.KA-41- MA-6662 and KA-06-C-3120 for the offences punishable u/s 279 and 304(A) of IPC.
19. Further to prove the defence the respondent No.2 has examined its legal manager as RW1, he has reiterated the similar facts as stated in the written statement. In the instant case, both the vehicle drivers are the best witness to say about the incident, but the driver of the car has succumbed to the injuries, i.e., Prahlad and remaining person is the driver of the Eicher vehicle to give his evidence. But this respondent has not examined the driver of the eicher, he is the best witness to say about the accident and negligence. On perusal of the sketch, the point of impact is in the middle of the road, it also shows that the deceased Prahalad was also high speed while his driving. 13 SCCH-18 MVC 864/2018
20. Considering the above, facts and circumstances of the case and on perusal of evidence of PW1 & PW2 coupled with documents and for the above, I am of the opinion that the oral version of the petitioner is not fully supported with corroborative documents. The tribunal has to decide the claim petition on the basis of evidence adduced before it, however, parties may rely upon police records as corroborative piece of evidence, charge sheet may give raise to presumption. However, it is not decisive and as such, while perusing the entire records, it reveals that, both drivers have contributed the negligence equally. For the above reason, I am of the opinion that, if the extent of negligence on the part of the petitioner is fixed at 50% and the extent of negligence on the part of the driver of the alleged car is fixed at 50% certainly it would meet the ends of justice. 14 SCCH-18 MVC 864/2018
21. Further on perusal of Ex.P5 and Ex.P6 Inquest report and P.M. report reveals that, deceased Prahald has sustained grievous injuries in the accident and succumbed to the injuries on the spot.
22. In addenda of this, in a claim for compensation U/S.166 of MV Act, 1988, the claimant has to prove the incident only on preponderance of probabilities and the standard of proof beyond reasonable doubt is not required as held by Hon'ble Apex Court in the decision reported in 2011 SAR (Civil) 319 (Kusum and others Vs. Satbir and others).
23. Considering the above facts and circumstance of the case and on appreciation of evidence of PW-1 and PW2 coupled with documents and for the above reason, I am of the opinion that, the petitioner has partly proved these issues by producing proper 15 SCCH-18 MVC 864/2018 documents. Accordingly, I answer this issue in the partly affirmative.
24. Issue No.3 & 4:- The petitioners in order to prove the relationship of the petitioners with the deceased, the petitioner No.1 has produced Aadhar card at Ex.P8, Aadhar card of petitioner No.2 at Ex.P9, Aadhar card of petitioner No.3 at Ex.P10. On perusal of the same, it reveals that the petitioner No.1 is the wife of the deceased, the petitioner No.2 & 3 are the parents of deceased Prahalad. On perusal of cross-examination PW1 has admitted that his father-in-law is working at R.V. Engineering College. If the petitioner No.2 being the father of the deceased Prahalad having his own income, he cannot be considered as dependant of the deceased. Though, he is legal heir, but not financial dependant 16 SCCH-18 MVC 864/2018 of the deceased. Therefore, petitioner No.1 & 3 are the financial dependant of the deceased.
25. The specific contention of the petitioners is that, deceased Prahalad was hale and healthy at the time of accident, aged about 30 years and completed his engineering in computer science and obtained Bachelor of Engineering degree from Visveshwaraiah Technological University, Belgaum and was appointed as a engineer in NEC India Private Limited and he was earning a sum of Rs.4,30,900/- per annum. Later on he left the job and started a software development company in the name and style of Kepran Infosoft Private Limited and had enrolled the said company before the registrar of companies and also obtained licence from concerned authorities and earning more than Rs.50,000/- per month. Due to the sudden demise of Prahald petitioners have put to untold misery, pain and sufferings, frustration and financial loss.
17 SCCH-18 MVC 864/2018
26. To prove the age of the deceased, the petitioners have produced SSLC Marks card, it discloses the date of birth of the deceased was 5.5.1988. The accident occurred on 20.11.2016. So as on the date of accident, the deceased was aged about 28 years. So, the same is considered as age of the deceased, then the proper Multiplier applicable to the case on hand is "17".
27. The counsel for the petitioners has argued that the deceased was running his own establishment and earning Rs.1,00,000/- per month. To prove the said fact, the petitioners have produced Convocation certificate of BE degree, offer letter along with salary details, implementation of the offer letter, bank statement, vat registration certificate, licence issued by labour department and true copies of registration of the company, which are marked at Ex.P12 to Ex.P21. On perusal of the same, it reveals that the deceased Prahalad was establishing his own company. On perusal of the bank statement marked at Ex.P16, it does not 18 SCCH-18 MVC 864/2018 disclose exact monthly income of the deceased from his company. In the absence of the same, it is very difficult to assess the exact income of the deceased per month. So, considering the age, qualification and the past records of the deceased if notional income of Rs.30,000/- per month is considered, it would meet the ends of justice. Then the annual income comes to Rs.3,60,000/-.
28. At this juncture this court has drawn the attention on the decision of the Hon'ble Supreme Court reported in 2017 ACJ 2700 in between National Insurance Co.Ltd., Vs. Pranay Sethi and others. In the said decision, it is held that;
Quantum---Fatal accident---Principles of assessment---future prospects----Whether legal representatives of the deceased who was on fixed salary or self-employed or aged between 50 and 60 would be entitled to benefit of future prospects for the purpose of 19 SCCH-18 MVC 864/2018 computation of compensation---Held: yes; case-law discussed.
While determining the income, an addition of 50 per cent of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30 per cent, if the age of the deceased was between 40 and 50 years. In case the deceased was between the age of 50 and 60 years, the addition should be 15 per cent. Actual salary should be read as actual salary less tax.
In case the deceased was self-employed or on a fixed salary, an addition of 40 per cent of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25 per cent where the deceased was between the age of 40 to 50 years and 10 per cent where the deceased was between the age of 50-60 years should be regarded as the necessary method of 20 SCCH-18 MVC 864/2018 computation. The established income means the income minus the tax component.
29. Further in a citation reported in 2018 ACJ page 5 (Hem Raj Vs. Oriental Insurance Co.Ltd.,), wherein the Hon'ble Apex Court has held as under:
"We are of the view that there cannot be distinction where there is positive evidence of income and where minimum income is determined on guesswork in the facts and circumstances of a case. Both the situations stand at the same footing. Accordingly, in the present case, addition of 40% to the income assessed by the Tribunal is required to be made. The Tribunal made addition of 50% while the High Court has deleted the same."
30. In view of the above decisions of the Hon'ble Apex Court, I am of the view that the deceased being aged about 28 years, he falls under the age group of below 40 years, 40% of the income of Rs.1,44,000/- is to be added to the income of deceased 21 SCCH-18 MVC 864/2018 as future prospects, on such addition, the total income of the deceased comes to Rs.5,04,000/-.
31. As I have already discussed that the petitioner No.1 and 3 are the financial dependants of the deceased. So, as per the decision of the Hon'ble Supreme Court reported in 2012 ACJ 1298 in between Sarlaverma Vs. Delhi Transport Corporation Ltd., if there are 2-3 dependants, 1/3rd shall be deducted towards the personal and living expenses. In the case on hand, petitioner Nos.1 and 3 are the financial dependants of the deceased, so, 1/3rd of the income of the deceased shall be deducted towards his personal expenses, on such deduction, the income of the deceased comes to Rs.3,36,000/-p.a.
32. The income of the deceased is taken as Rs.3,36,000/- p.a. and the multiplier 17 is applied, then the loss of dependency comes to Rs.57,12,000/-. Considering the above facts, I deem it 22 SCCH-18 MVC 864/2018 just and reasonable to grant for compensation of Rs.57,12,000/- under the head of loss of dependency.
33. At this juncture I relied the judgment of the Hon'ble Supreme Court in Civil Appeal No.9581/2018 (Arising out of SLP (Civil) No.3192/2018) in case of Muama General Insurance Co.Ltd., Vs. Nanu Ram alias Chuhru Ram and Others.
In which it is held in para No.8.7 that " A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under which the compensation it so be awarded in a death case. One of these heads is "Loss of Consortium":
In legal parlance "consortium" is a
compendious term which encompasses 'spousal
consortium; parental consortium and filial
consortium.
The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to 23 SCCH-18 MVC 864/2018 his family. With respect to a spouse, it would include sexual relations with the deceased spouse.
Spousal consortium is generally defined as rights pertaining to the relationship of a husband
-wife which allows compensation to the surviving spouse for loss of "company, society, co- operation, affection and aid of the other in every conjugal relation."
Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training."
Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their oral in the family unit.
24 SCCH-18 MVC 864/2018
Consortium is a special prism reflection changing norms about the status and worth of actual relationship. Modern jurisdictions world- over have recognized that the value of child's consortium far exceeds the economic value of the compensation awarded in case of death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensating for loss of love, affection, care and companionship of the deceased child.
34. In the instant case, petitioner No.1 is the wife of the deceased is entitled for Spousal consortium, which can be compensated for loss of "company, society, co-operation, affection and aid of the other in every conjugal relation and the petitioner No.2 & 3 are the parents of the deceased is entitled for filial consortium, which is the right of the parents to compensation in the case of an accidental death of a child. An 25 SCCH-18 MVC 864/2018 accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Therefore, Rs.40,000/- each is awarded to the petitioner Nos. 1 to 3.
35. Further the petitioners are wife, children and mother of deceased, they are entitled for compensation of Rs.15,000/- under the head of loss of estate and also an amount of Rs.15,000/- is awarded under the head of transportation of dead body, funeral and obsequies ceremony expenses .
36. Considering the above facts and circumstances of the case and for the above reason, I am of the opinion that, the petitioners are entitled for total compensation under the following heads.
Compensation heads Compensation amount
Towards loss of dependency Rs.57,12,000-00
Towards loss of consortium Rs. 1,20,000-00
Towards loss of estate Rs. 15,000-00
26 SCCH-18 MVC 864/2018
Towards transportation of dead body, Rs. 15,000-00 funeral & obsequies ceremony expenses Total Rs.58,62,000-00
37. LIABILITY: As I have already discussed in issue No.1 to 4 the accident occurred due to the rash and negligent driving of the driver of the both vehicles bearing NO.KA-41-MA-6662 and KA-06-C-3120.
38. The respondent No.2 has admitted about the issuance of policy in respect of vehicle bearing No.KA-06-C-3120 and its validity. Therefore, the respondents are jointly and severally liable to pay the compensation. In view of the valid insurance policy the respondent No.2 is liable to pay 50% of the compensation amount together with interest @ 8% P.A. from the date of petition till the date of deposit and 50% contributory negligence is fixed on the deceased Prahalad. Accordingly, I answer the issue No.3 & 4 are partly affirmative.
27 SCCH-18 MVC 864/2018
39. ISSUE NO.5: In view of my findings on the above issues, I proceed to pass the following;
ORDER The claim petition filed by the petitioners U/S 166 of MV Act is hereby partly allowed with costs.
The petitioners are entitled for compensation of Rs.58,62,000/- with interest @ 8% P.A. from the date of petition till the date of deposit.
The respondents are jointly and severally liable to pay the compensation. In view of the valid insurance the respondent No.2 being the insurer is liable to pay 50% of the compensation amount with interest at 8% p.a. from the date of petition till the date of deposit within two months from the date of this order and remaining 50% contributory negligence is fixed on the deceased Prahlad.
28 SCCH-18 MVC 864/2018Out of the compensation amount awarded to the petitioners together with interest, Rs.45,000/- is awarded to the petitioner No.2 and from the remaining amount the petitioner No.1 is awarded to the share of 70% and the petitioner No.3 is allotted to 30% of the share amount.
With regard to the compensation amount together with interest of petitioner No.1 and 3, 40% of the amount shall be deposited in any nationalized/schedule bank of their choice, for a period of 3 years and remaining 60% of the amount shall be released to the petitioners through account payee cheque on proper identification. The petitioners are at liberty to withdraw the periodical interest accrued on their deposit amount from time to time. 29 SCCH-18 MVC 864/2018
With regard to the compensation amount together with interest of petitioner No.2 entire amount shall be released to the petitioner through account payee cheque on proper identification without any further proceedings.
Advocate fee is fixed at Rs.1,000/- each. Draw award accordingly.
(Dictated to the stenographer directly on computer, corrected by me and then pronounced in the open court on this 3rd day of February 2020) (MAHANTESH S.DARGAD) III ADDL. SMALL CAUSES JUDGE & ACMM,BENGALURU.
ANNEXURE List of witnesses examined on petitioner's side:
PW1 Smt. Asha Latha B PW2 Shri Anil Kumar M.
List of documents exhibited on petitioner's side:
Ex-P1 True copy of FIR with Complaint
Ex-P2 True copy of Spot mahazar
Ex-P3 True copy of Rough sketch
30 SCCH-18 MVC 864/2018
Ex-P4 True copy of IMV report
Ex-P5 Inquest report
Ex-P6 P.M.report
Ex-P7 True copy of Charge sheet
Ex-P8 Notarised copy of Aadhar card of petitioner
No.1
Ex.P9 Notarised copy of Election ID card of
petitioner No.2
Ex.P10 Notarised copy of Election ID card of
petitioner No.3
Ex.P11 Notarised copy of SSLC Marks card of
deceased Prahalad R.M.
Ex.P12 Notarised copy of Convocation certificate of
B.E. of deceased
Ex.P13 Offer letters along with salary details
Ex.P14 Implementation of offer letter along with pay
slip
Ex.P15 Form No.6 of the year 2011-2012
Ex.P16 Bank statement
Ex.P17 Vat registration certificate
Ex.P18 Licence issued by labour department
Ex.P19 to True copies of registration of the company
Ex.P21
List of witnesses examined on respondents' side:
RW1 Smt. Shobha Kappaiah 31 SCCH-18 MVC 864/2018 List of documents exhibited on respondents' side:
Ex.R1 True copy of insurance policy
Ex.R2 Certified copy of judgment and award
III ADDL.SMALL CAUSES JUDGE
& ACMM, Bengaluru.