Bangalore District Court
) Smt.Girija vs The United India Ins on 4 July, 2017
0BEFORE THE MEMBER PRL.MOTOR ACCIDENT CLAIMS
TRIBUNAL AT BANGALORE
(S.C.C.H. - 1)
DATED THIS THE 4th DAY OF JULY'2017
PRESENT : SRI H.P.SANDESH, B.A.L., LL.B,
MEMBER, PRL. M.A.C.T.
MVC No.4146/2015
Petitioners: 1) SMT.GIRIJA
W/o.Late L.Raju,
Aged about 27 years,
2) ARSHITHA R.,
D/o.Late L.Raju,
Aged about 6 years,
3) MANVITHA,
D/o.Late L.Raju,
Aged 1 year,
All residing at No.11/3,
13th Cross, Agrahara Dasarahalli
Bangalore 560 079.
Petitioner No.2 and 3 are
minors, hence represented by
their mother Smt.Girija -
Petitioner No.1.
(By Sri D.S.Sampath, Advocate)
Vs.
Respondents: 1. The United India Ins.,Co., Ltd.,
No.109, SSI Area, 5th Block,
Rajajinagar,
Bangalore 560 010.
2. C.Nagaraj,
S/o.Chikkaveeranna,
Aged about Major,
R/at No.7, 4th Main,
Shivanagar,
West of Chord Road,
Rajajinagar,
Bangalore.
(RC Owner of the Maruthi Zen
Vehicle bearing
Reg.No.KA.03/P.9990)
3. Mr.Rajashekar,
S/o.T.R.Nagabhusan,
Aged about 28 years,
Respondent No.3 residing at
8th Cross, 1st Main Road,
S.S.Puram, Tumkur.
(Respondent No.1 - Sri B.T.Mohan,
Advocate.
Respondent No.2 - Sri C.Prakash,
Advocate
Respondent No.3 - Sri Manohar B.K,
Advocate)
JUDGMENT
The petitioners have filed this petition under Section 166 of the of the Motor Vehicles Act, 1989 claiming compensation of Rs.25 Lakhs from the respondents with regard to the death of L.Raju in the road traffic accident that occurred on 18.04.2015 at about 04.15 pm., near Namadachilume Cross, Oorigere Hobli, Tumku.
2. Brief facts of the case are that:-
It is contended in the petition that on 18.04.2015, the deceased L.Raju, was traveling in Maruti Zen Car bearing registration No.KA.03/P.9990 and the said car was driven by the 2nd respondent from Tumkur to Bangalore and while proceeding so, at about 04.15 pm., when came near Namadachilume Cross, Oordigere Hobli, on account of rash and negligent driving, the car went of the road and hit against a road side tree and on account of the terrible impact, L.Raju, who was seated on the left side of the car, died at the spot and thereafter, the body was shifted to District Hospital, Tumkur wherein post mortem was conducted and the body was handed over the petitioners who performed the obsequies and other related ceremonies.
3. It is contended that the deceased L.Raju was aged 29 years when the accident occurred and he was working as Real Estate Agent, apart from owning a goods vehicle and earning Rs.40,000/- per month and on account of the untimely death of L.Raju, the petitioners have been put to deep sorrow and have lost sole bread earner of the family.
4. It is the case of the petitioners that the first petitioner is the wife and the petitioner No.2 and 3 are the children of the deceased L.Raju.
5. It is contended that the accident has occurred on account of the rash and negligent driving of the car by its driver and therefore, the Police have registered a case against the driver of the car and after investigation, filed charge sheet against the drive of the car.
6. It is contended that the first respondent is the insurer whereas, the 2nd and 3rd respondents are the owners of the car and hence, all of them are jointly and severally liable to pay compensation to the petitioners.
7. In pursuance of this petition, the Tribunal issued notice against the respondents. All the respondents appeared before the Tribunal and filed statement of objections.
8. The first respondent in the statement of objections contended that the petition is not maintainable either in law or on facts and liable to be dismissed in limine. It is contended that the averments in column No.1. to 6, 8, 9, 12, 14, 14-A, 18 and 19 of the claim petition are not within the knowledge of the respondent and hence, put the petitioners to strict proof of the same.
9. The respondent No.1 has further contended that the averments in column No.22 of the petition regarding the manner in which the accident occurred, death of the deceased are not within the knowledge of the respondent No.1 and hence, put the petitioners to strict proof of the same.
10. The respondent No.1 has also denied the age, avocation and income of the deceased and also denied the averment that the petitioners spent Rs.1 lakh towards transportation, funeral and other expenses.
11. The respondent No.1 admits that the Maruti Zen car No.KA.03/P.9990 was insured with it under Private Car Liability Only Policy and the liability is subject to the terms and conditions of the policy and the driver of the same holding valid and effective driving licence.
12. The deceased was an occupant in the car at the time of accident and the policy being Private Car Liability Only Policy, the risk of such persons is not covered in the policy. Further, the said vehicle was being driven by a person, who had no driving licence and the Police have filed charge sheet under Section 279, 304A IPC read with Section 180, 181 of MV Act against the driver of the said car Sri Revanna Siddu as A.1 and the owner of the car Nagaraju C., S/o.Chikkaveeranna as A.2 for entrusting the car to the person who had no driving licence. The amount of compensation claimed is excessive and exorbitant. For all these reasons, the 1st respondent has prayed to reject the petition.
13. The respondent No.2 and 3 have filed statement of objections, which is similar in particulars, contending that the petition is not maintainable either in law or on facts. The respondent No.2 and 3 have denied the averments in column No.1 to 6, 8 and 9 of the petition and put the petitioners to strict proof of the same. The respondent No.2 and 3 have not admitted the averments in column No.11 and 2 of the petition that the deceased died due to the allege accident. The respondent No.2 and 3 have admitted the averment in column No.14-A and 15 as true and correct, however, it is contended that the respondent No.2 has sold the said vehicle and transferred his ownership to one Rajashekar ie., respondent No.3 vide Form No.29 and 30 dated 10.11.2014.
14. The averments in column No.16 is admitted to be true and correct and that the insurance was in force and one Rajashekar is the insured of the vehicle and not respondent No.2 as alleged by the petitioners.
15. The averments in column No.18 and 19 is denied by the respondent and put the petitioners to strict proof of the same.
16. The compensation as claimed in column No.21 is fanciful, whimsical, abnormal without any basis and the petitioners are not entitled to compensation.
17. The respondent No.2 and 3 have denied the manner in which the accident has occurred and also the death of Raju in the accident. They have also denied the age, avocation and income of the deceased. They have also denied the relationship of the petitioners with the deceased.
18. For all these reasons, the respondent No.2 and 3 have prayed the Court to reject the petition as against them.
19. In view of the contentions raised by the parties, the following issues are framed:-
1) Whether the Petitioners prove that the deceased succumbed to injuries in a Motor Vehicle Accident that occurred on 18.04.2015 at about 04.15 pm.,. at Namadachilume Cross, Near Namadachilume, Oordigere Hobli, Tumkur Taluk within the jurisdiction of Kyathasandra Police Station on account of rash and negligent driving of the Maruthi Zen bearing registration No.KA.03/P.9990 by its driver?
2) Whether the Petitioners are entitled for compensation? If so, how much and from whom?
3) What Order?
20. In order to substantiate their case, on behalf of the petitioners', the first petitioner has been examined as PW 1 and through her evidence, Exhibits P.1 to P.12 are marked. Ex.P.13 was confronted to RW 2 and marked.
21. On behalf of the respondent No.1, one witness has been examined as RW 1 and through her evidence, Exhibits R.1and 2 are marked and Ex.R.3 was confronted to him and marked. The respondent No.2 got himself examined as RW 2 and he got marked Exhibits R.4 to R.7.
22. I have heard the arguments of petitioners' counsel as well as the counsel for the respondents.
23. The counsel for the respondent No.1 has relied upon a decision reported in ILR 2011 KAR 850.
24. The Counsel for the respondent No.2 has relied upon the following judgments:-
1) ILR 2016 KAR 1935
2) AIR 2003 SC 1446
25. I have given my anxious consideration to the principles laid down in the said judgments.
26. Having heard the arguments, based on the pleadings and the evidence available on record, I record my findings on the above issues as under:-
1) In the affirmative,
2) Partly in the affirmative,
3) As per final order, for the following:-
REASONS
27. Issue No.1:- It is the case of the petitioners' that on 18.04.2015, the deceased L.Raju, was traveling in Maruti Zen Car bearing registration No.KA.03/P.9990 and the said car was driven by the 2nd respondent from Tumkur to Bangalore and while proceeding so, at about 04.15 pm., when came near Namadachilume Cross, Oordigere Hobli, on account of rash and negligent driving, the car went of the road and hit against a road side tree and on account of the terrible impact, L.Raju, who was seated on the left side of the car, died at the spot.
28. The respondents in their statement of objections have contended that the accident has not occurred due to the negligence on the part of the driver of the car.
29. The petitioners' in order to substantiate their case, examined the first petitioner as PW 1 and in her evidence, PW 1 has reiterated the averments of the petition about the negligence on the part of the driver of the car and apart from her oral evidence, PW 1 has also got marked Exhibits P.1 - FIR, Ex.P.2 - Inquest Report, Ex.P.3 - Charge Sheet, Ex.P.4- PM Report, Ex.P. 5 - Mahazar and Ex.P.5 - IMV Report.
30. On behalf of the respondents, 2 witnesses have been examined as RW 1 and 2 and Exhibits R..1 to R.7 are marked.
31. PW 1 was subjected to the cross-examination and in her cross-examination, she admits that she did not witness the accident. She further says that she does not aware as to why her husband was proceeding in the car belonging to the second respondent and as per information, there were only 2 persons at the time of the accident and she came to know through the Police that the accident has occurred at Namadachilume Cross and she did not go to spot and the Police have recorded her statement in the hospital and the car belongs to Nataraj and the owner is not their relative and the driver of the car is her relative and not the relative of her husband.
32. Thus from the admission of PW 1, it is evident that PW 1 is not an eye witness to the accident and therefore, her evidence as regards to the manner in which the accident and the negligence of the driver of the car, is not helpful.
33. Even though the respondents have examined RW 1 - Administrative Officer in the Office of the respondent No.1 and the respondent No.2 got himself examined as RW 2, but both of them are also not eyewitness to the accident and therefore, their evidence is also not helpful to arrive the conclusion regarding the manner in which the accident and the negligence of the driver of the car.
34. Now, let me appreciate both oral and documentary evidence available before the Court. As discussed above, even though the petitioners contend that the accident has occurred due to the negligence of the driver of the car and PW 1 reiterates the same, but PW 1 is not an eye witness to the accident. Likewise, even though the respondents deny the manner in which the accident has occurred and examined RW 1 and 2, even RW 1 and 2 are also not eye witness to the accident. Hence, the Court has to rely on the Police papers, such as FIR- Complaint, Spot Mahazar, IMV Report and Charge Sheet which are marked as Ex.P.1, P.4, 5 and P.3 respectively.
35. On perusal of Ex.P.1 - FIR, Complaint is lodged by one Syed Jafar. The accident has occurred on 18.04.2015 at 4.15 pm., and the complaint is lodged at 4.50 pm., on the same day and in the complaint, he alleges that when his friend and himself were moving on Bangalore- Tumkur High Way and came near Namadachilume Cross, at about 4.15 pm., a car came there in high speed and in the curve and dashed against the road side tree and immediately they went near the spot of accident and on enquiry, they came to know the name of driver as Revanna Siddu S/o.T.R.Nagabushan and the person who seated on the left side had succumbed to the injuries at the side and his name, upon enquiry, they came to know as Raju S/o.Lakshman of Tumkur and accordingly, he lodged the complaint, alleged negligence to the driver of the car. The Police, thereafter registered the complaint and sent FIR to Court and thereafter, conducted investigation, during which, they drew Spot Mahazar as per Ex.P.5 and the vehicle was subjected to inspection as per Ex.P.6 which reveal the total damage caused to the car and after the investigation, the Police filed charge sheet against the driver of the car as per Ex.P.3. RW 1 and 2, in their evidence, have not made out any circumstance based on which it can be said that the accident has not occurred due to the negligence of the driver of the car. Further, PW 1 even though not an eyewitness to the accident, but the documents produced by her and discussed as above, remained unchallenged and thereby, it can be said that it is case of res-ipsa-loquitor, meaning thereby the facts of the case speak for themselves, in as much as, as the car was being driven by its driver in rash and negligent manner, it went off the road in the curve and dashed against the road side tree. Hence, I am of the opinion that the accident has occurred purely on account of the rash and negligent driving of the car by its driver and accordingly issue No.1 is answered in the affirmative.
36. Issue No.2:- In order to show that the deceased succumbed to the injuries sustained in the above accident, the petitioners have produced Ex.P.2 and Ex.P.4 - PM Report. A perusal of both these documents reveal that the death is due to shock and hemorrhage as a result of injuries sustained. Therefore, it can be said that the deceased died due to the injuries sustained by him in the accident.
37. It is the case of the petitioners that petitioner No.1 is the wife and the petitioner No.2 and 3 are the daughters of the deceased. It is the further case of the petitioners that the deceased was aged 29 years at the time of the accident and running a goods autorickshaw apart from doing real estate business and earning Rs.40,000/- per month. The respondents in their statement of objections deny the said assertion of the petitioners regarding the relationship of the petitioners with the deceased and also the age, avocation and income of the deceased.
38. The petitioners in order to prove their relationship with the deceased, have produced Ex.P.7 - Copy of the Ration Card, perusal of which reveals that the deceased being the head of the family, the petitioner No.1 is shown to be his wife and the petitioner No.2 as their daughter. The said Ex.P.7 - Ration Card was issued on 09.10.2012 and the petitioner No.3 has born subsequent to the issue of the said certificate and therefore, in the cause title to the petition, the age of the petitioner No.3 is shown as just 1 year at the time of filing of petition in the year 2015. Thus, in the absence of any contra evidence, for the purpose of this case, it can be said that the petitioners are the LRs of the deceased.
39. So far as age, avocation and income of the deceased is concerned, as stated above, the petitioners claim that the deceased was aged 29 years and he was running a goods autorickshaw apart from doing real estate business and thereby earning Rs.40,000/- and maintaining the family. The respondents deny the averments made by the petitioners in this regard.
40. In the cross-examination of PW 1, it is elicited from her that her husband owned luggage auto. She says that the vehicle was sold after the death of her husband since, she was having financial difficulties and that she can produce B register extract of their luggage auto. She has also stated that he has produced driving licence of her husband to show his age. She admits that she has not produced the RC before the Court that the vehicle was standing in his name, but she says that she has produced the instalment receipt book as Ex.P.8. She says that she has not produced any document to show that her husband was doing real estate business.
41. Thus, from the perusal of Ex.P.9 Driving Licence of the deceased, it can be gathered that the deceased has born on 03.12.1983 and the accident having occurred on 18.04.2015, it can be said that the deceased was running 32 years at the time of accident. Further, the said document shows that he was having licence to drive non transport vehicle from 21.05.2003 to 20.05.2023 and though he had licence to drive transport vehicle from 22.03.2006, but the same had expired on 21.03.2009. Further, from perusal of Ex.P.10 - B Register Extract issued by Transport Department, the deceased owned a Three Wheeler Closed Body vehicle. The petitioner having contended that the deceased was driving the goods vehicle and also doing real estate business and earning Rs.40,000/- per month, but failed to substantiate the same by producing either bank statement or any other acceptable evidence such as IT Returns, although Ex.P.10 shows that the deceased owned a three wheeler goods vehicle.
42. In the cases reported in (1) 2016(1) AKR 39 and (2) 2016 (1) AKR 244, the High Court held that in case of skilled worker, income of such person can be taken at Rs.9,000/- per month. In this case, the deceased apart from being a driver, owned a three wheeler goods vehicle. Hence, I deem it just and proper to take the income of the deceased at Rs.9,000/- per month.
43. Thus, as discussed above, the income of the deceased is taken as Rs.9,000/- per month and the age of the deceased is taken as 32 years and thereby, the multiplier applicable to the case on hand is 16.
44. In view of the principles laid down in the judgment reported in 2013 ACJ 1403 (Rajesh Vs. Rajbir Singh), the Apex Court held that even if a person is self employed, loss of future prospects has to be taken into consideration and hence, as the deceased was aged 32 years at the time of accident, 50% from out of his total income (50% out of Rs.9,000), has to be taken as loss of future prospects, which works out to Rs.4,500/- and thus the total works out to Rs.13,500/-.
45. As discussed above, the deceased has left behind his wife and two children and hence, I deem it just and proper to deduct 1/3rd out of the income of the deceased towards the personal expenses of the deceased had he been alive and the remainder woks out to Rs.9,000/-. Annually it comes to Rs.1,08,000/- and if we multiply the same by 16 multiplier, applicable to the age group of 32 years, the same works out to Rs.17,28,000/- (9000X12X16=1728000), which is the loss of dependency to which the petitioners are entitled to on account of the death of Raju L.
46. The Apex Court, in the case reported in 2013 ACJ 5800 (Sanobanu Nazirbhai Mirza Vs. Ahmedbad Municipal Transport Service) and also in the recent judgment reported in AIR 2014 SUPREME COURT 706 (Puttamma Vs. Narayana Reddy) awarded Rs.1,00,000/- as compensation to the family members (children and family members other than wife) for loss of love and affection, deprivation of protection, social security etc., and Rs.50,000/- as compensation to the widow of the deceased for loss of love and affection, pains and sufferings, loss of consortium, deprivation of protection, social security etc., and Rs.10,000/- towards cost incurred on account of funeral and ritual expenses. In this case also, since the deceased has left behind wife and hence, I deem it proper to award Rs.1,00,000/- as compensation to the family members (children and family members other than wife) for loss of love and affection, deprivation of protection, social security etc., and Rs.50,000/- as compensation to the widows of the deceased for loss of love and affection, pains and sufferings, loss of consortium, deprivation of protection, social security etc., and Rs.10,000/- towards cost incurred on account of funeral and ritual expenses and medical expenses.
47. The details of compensation I propose to award are as under:
Sl.No. Head of Compensation Amount/Rs
1 Loss of dependency 17,28,000.00
2 Compensation to the family members 1,00,000.00
(children and family members other
than wife) for loss of love and
affection, deprivation of protection,
social security etc.
3 Compensation to the widow of the 50,000.00
deceased for loss of love and
affection, pains and sufferings, loss
of consortium, deprivation of
protection , social security etc.
4 Cost incurred on account of funeral 10,000.00
and ritual expenses and medical
expenses
Total 18,88,000.00
48. The compensation amount is apportioned amongst the petitioners in the following manner:-
1) Petitioner No.1 - wife - 50%
2) Petitioner No.2 - Daughter - 25%
3) Petitioner No.3 - Daughter - 25%
49. As regards the liability to be fixed on the respondents, the respondent No.1 Insurance Company in the statement of objections, while admitting that the car No.KA.03/P.9990 was insured with it under "Private Car Liability Only Policy", specifically contended that as on the date of accident, the driver of the car vehicle was not having valid and effective driving licence and hence, there being breach of policy conditions, the respondent No.1 is not liable to indemnify the insured and pay compensation to the petitioners. In this regard, the respondent No.1 has examined its Administrative Officer as RW 1 and in the affidavit in the form of examination in chief, RW 1, at para No.5 of the affidavit, specifically says that the driver was not in possession of valid and effective driving licence to drive the insured vehicle and therefore, the Police have filed charge sheet against the driver of the car Sri Revanna Siddu and also against the owner of the car Nataraja C., for offence under Section 179, 304-A IPC read with Section 180, 181 of IMV Act and therefore, the respondent No.1 is absolved from indemnifying the insured.
50. In this case, the respondent No.2 Natgaraj C., and respondent No.3 T.N.Rajashekar are arrayed as owners of the car. Nataraj C., the respondent No.2 has been examined as RW 2 and in his evidence, he says that on 10.11.2014, the said vehicle was transferred to respondent No.3 T.N.Rajashekar as per Form No.29 and 30 and therefore, he is not a necessary party to the proceedings. In support of his evidence, he has got marked Ex.R.4 - Delivery Note, Ex.R.5 - Copy of Letter addressed to Insurance Company, Ex.R.6 - Postal Receipt and Ex.R.7 - copy of Driving Licence.
51. He has been cross-examined by the Counsel for the respondent No.1, wherein he admits that he is the registered owner of the Car No.KA.03/P.9990 from 10.08.2012 and he came to know that the accident has occurred on 18.04.2015. He further admits that the Police have given Section 133 Notice to him on 8.8.2015 to submit details and the same was served on him and he has given reply to the said notice. He categorically admits that the car was not transferred in favour of Rajashkear and the same was standing in his name. He further admits that he has not informed the insurance company about the sale of the vehicle. He has also not requested the insurance company to transfer the policy in favour of Rajashekar and he has also not informed the RTO about the sale of the vehicle. He volunteers that the purchaser himself had told him that he will get it transferred. He says that he is aware that the driver should have driving licence while driving the vehicle. He says that he does not know about filing of charge sheet against A.1 that he was not having the driving licence at the time of the accident. A question was put to him that the driver was not holding driving licence and hence, the insurance company cannot cover the risk of the occupant and hence, he is liable to pay the compensation to which, he replied that he has already sold the vehicle and hence, he is not liable.
52. The respondent No.3 has been examined as RW 3 and in his evidence, he says that he has purchased the car No.KA.03/P.9990 from the respondent No.2 on 10.11.2014 although the insurance policy is standing in the name of the respondent No.2 and although he purchase the car much earlier, the vehicle was not yet transferred to his name, since he was having some personal problems.
53. In his cross-examination, he admits that Revanasidda is his brother and he is no more and the police have registered a case against him in connection with the accident. He admits that he has purchased the car from Nataraju and the said Nataraju has executed Form No.29 but due to accidental injuries, he could not get the car transferred to his name.
54. The counsel for the petitioners, in his arguments contended that at the time of the accident, the driver of the car was holding valid and effective driving licence and the car was owned by the respondents No.2 and 3, which was insured with the respondent No.1 and hence, the respondents No.1 to 3 are jointly and severally liable to pay the compensation amount to the petitioners.
55. As against the same, the Counsel for the respondent No.1, in his arguments vehemently contended that the driver of the car Revanasidda had no driving licence at the time of the accident and therefore, the Police have filed charge sheet against the driver of the car in that regard and even though the car was insured with it under Private Car Liability Only Policy, but on account of the driver not holding licence to drive the car, the respondent No.1 is absolved from indemnifying the insured and hence, sought to reject the petition as against it.
56. The Counsel for the respondent No.2 and 3, submitted their arguments in the line of the arguments advanced by the counsel for the petitioners. The Counsel for the respondent No.2 has relied upon the principles laid down in the judgment reported in ILR 2016 KAR 1935 ( United India Insurance Co., Ltd., Vs Smt.Rathna and another), where it has been held as under:-
"MOTOR VEHICLES ACT, 1988 - SECTION 173(1) - Accident claim - Judgment and Award - Appealed against, by the Insurance Company - "Whether police charge sheet could be relied upon to hold that the driver of the insured vehicle had no driving licence as on the date of accident?" - HELD, Police charge sheet is no evidence t hold that the driver of the insured vehicle had no driving licence as on the date of accident."
57. The Counsel for the respondent No.2 has also relied upon another judgment reported in AIR 2003 SC 1446 (Rikhi Ram and another Vs Smt.Sukhrania and others), wherein it has been held as under:
"MOTOR VEHICLES ACT, 1939, Section 94 - Third party risks - Transfer of vehicle - Absence of intimation - Liability of insurance company - Insurer is liable to pay compensation to third party even in absence of any intimation of transfer of vehicle to transferee".
58. Now, let me appreciate the case of the petitioners and the respondents with regard to the liability is concerned.
59. It is true as per Ex.R.1 - the Car No.KA.03/P.99090 involved in the accident was insured with the respondent No.1 vide Policy No.0716023114P111777534 for the period 27.03.2015 to 26.03.2016 under Private Car Liability Only Policy. The accident having occurred on 18.04.2015, it can be said that the said policy was in force as on the date of accident. Now, the point to be considered is whether the driver of the car had licence to drive the same at the time of accident. In this regard, the counsel for the respondent No.1 urges that as the driver of the car was not holding driving licence, the police having found the same, rightly filed charge sheet against him under Section 279 and 304(A) IPC read with Section 180 and 181 of the MV Act. During the course of investigation, the Police, as per Ex.R.9, issued Notice under Section 133 of the IMV Report to the owner of the car and in reply as per Ex.R.8, the owner respondent No.2 has stated that he being the owner of the said car, one Revanasiddu was driving the car at the time of the accident, who had no driving licence. The reply given by the respondent No.2 makes it abundantly clear that the driver of the car had no licence and therefore, the Police have rightly invoked Section 180 and 181 of the MV Act.
60. As discussed above, the respondent No.2 on the one hand says that he has sold the vehicle to respondent No.3 on 10.11.2014 and executed Form No.29 and 30 and on the other, the respondent No.3 says that he has purchased the vehicle from the respondent No.2, but on account of personal problems, he could not get the vehicle transferred to his name and the said fact is reiterated by them in their evidence as RW 2 and 3 respectively, it has to be stated here unless and unless there is transfer of vehicle as provided under law in the manner known to law, it cannot be said that there is valid transfer of vehicle from one person to another. In this case, the respondent No.2 and 3, by their conduct, though tried to establish that the vehicle has been purchased by the respondent No.3 from the respondent No.2, but to establish the same, no document obtained from the RTO authorities is produced. There is no dispute with regard to the principle laid down in the judgment relied upon by the counsel for the respondent No.2 that the Police charge sheet is no evidence to hold that the driver of the insured vehicle had no driving licence as on the date of accident. In the case on hand, this Court is not only relying on the charge sheet filed by Police, but also the categorical admission of the respondent No.2 in his reply to Section 133 Notice that the driver of the car was not holding licence to drive car. If the driver of the car was really holding licence, then he could have produced the same, if not examined the driver as he is no more. Why the respondent No.2 or respondent No.3 did not produce the driving licence of the driver, inspite of there being severe doubt raised by the respondent No.1, is not explained by them. Further, the respondent No.3 categorically admits that he has purchased the vehicle, but on account of his personal problems, he could not get the vehicle transferred to his name. Therefore, for all purposes, until the vehicle is transferred in the manner known to law, it is the respondent No.2 who is the owner of the car. But, since the respondent No.3 claims that his brother was driving the car at the time of accident, who had no driving licence, there is utter negligence on the part of respondent No.2 in entrusting the vehicle to driver without valid transfer and the respondent No.3, inspite of knowing that his brother had no licence, had permitted his brother to drive the same and thereby a person has lost his life and thereby, the respondent No.3 has also committed serious error. For the said reason, even though the vehicle was insured as on the date of accident, but for the fact that the driver of the car was not holding licence to drive the same, the insurance company has absolved its liability to indemnify the insured and it is only the respondent No.2 and 3, who are jointly and severally liable to pay the compensation amount to the petitioners, quantified as above.
61. In a case reported in (2011) 4 SCC 481 : (AIR 2012 SC 100) (Municipal Council of Delhi Vs. Association of Victims of Uphaar Tragedy), the Supreme Court has held that the Court has to take into account the rate of interest of the nationalized bank and the present day cost of living and thereby awarded, interest on the compensation amount at 9% p.a. I have no reasons to deviate from the said view of the Apex Court. Accordingly, interest on compensation amount is awarded at 9% p.a. Accordingly, issue No.3 is answered.
62. Issue No.3 In the result I proceed to pass the following: -
ORDER The petition filed by the petitioners is allowed in part.
The petitioners are entitled for compensation of Rs. 18,88,000/- with interest at the rate of 9% per annum from the date of petition till realization.
The respondent No.2 and 3 are jointly and severally liable to pay the award amount within 2 months from the date of this order.
Compensation amount is apportioned as follows:-
Petitioner No.1 - Wife - 50% Petitioner No.2 - Daughter - 25% Petitioner No.3 - Daughter - 25% Out of the compensation amount so apportioned in favour of the petitioners No.1, 50% with proportionate interest is ordered to be invested in high yielding fixed deposit in her name in any of the nationalized or scheduled bank of her choice for a period of 5 years. Remaining amount with proportionate interest is ordered to be released to he.
Entire compensation amount apportioned in favour of petitioner No.2 and 3, who are minors, is ordered to be deposited in FD in their name until they attain majority, in any bank of the choice of the petitioner No.1. Accrued interest on the FD till deposit and the periodical interest on the same is ordered to be released to the petitioner for their maintenance.
Petition as against respondent No.1 is dismissed. Advocate's fee is fixed at Rs.1,000/-.
Draw an award accordingly.
(Dictated to the Judgment Writer directly on computer, corrected, signed and then pronounced by me in the open court dated this the 4th day of July'2017) (H.P.SANDESH) Member, Prl. M.A.C.T. Bangalore ANNEXURE Witnesses examined on behalf of the petitioners:
P.W.1 : Girija Witnesses examined on behalf of the respondents :
R.W.1 : M.S.Savitha
R.W.2 : Nataraja C.,
R.W.3: Rajashekar T.N.,
Documents marked on behalf of the petitioners:
Ex.P-1 : FIR Ex.P-2 : Inquest Report Ex.P-3 : Charge Sheet Ex.P-4 : PM Report Ex.P-5 : Mahazar Ex.P-6 : IMV Report Ex.P-7 : Copy of Ration Card Ex.P-8: Instalment Receipt Book Ex.P-9: Driving Licence Ex.P-10 : Online Copy of B Register Extract with receipt Ex.P-11: Death Certificate Ex.P.12: Copy of School ID Card Ex.P.13: Indemnity Bord
Documents marked on behalf of the respondents:
Ex.R.1 : Policy Copy Ex.R.2 : Copy of Notice issued to insured Ex.R.3 : Authorisation Letter Ex.R.4 : Delivery Note Ex.R.5 : Copy of Letter Ex.R.6 : Postal Receipt Ex.R.7 : Copy of Driving Licence
Ex.R.8&9 : Copy of Reply to Section 133 Notice and Notice Under Section 133 (H.P.SANDESH) Member, Prl. M.A.C.T. Bangalore