Karnataka High Court
Smt Pramila @ Mary Pramila vs The Managing Director on 28 January, 2020
Bench: Alok Aradhe, Ravi V Hosmani
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JANUARY 2020
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
MFA NO.3156/2015 (MV)
BETWEEN
1. SMT PRAMILA @ MARY PRAMILA
W/O LATE SARAVANAN @ SOLOMON,
AGED ABOUT 34 YEARS,
2. SRI N. ELLUMALLAI @ N.PETER
S/O LATE M. NARAYANA,
AGED ABOUT 68 YEARS,
3. SMT. AMALAMMA @ AMALA
@ FATHIMA AMALA
W/O N. ELLUMALLAI
AGED ABOUT 59 YEARS,
4. KUM. S. SHIRIN KRISTINA
D/O LATE SARAVANAN @ SOLOMON,
AGED ABOUT 6 YEARS,
(MINOR REPRESENTED BY
HER MOTHER AND
NATURAL GUARDIAN SMT.PRAMILA
@ MARY PRAMILA THE 1ST APPELLANT)
ALL ARE R/AT NO.30, KADHIRAIHNAPALYA,
INDIRANAGAR POST, BANGALORE 560038.
...APPELLANTS
(BY SRI K T GURUDEV PRASAD, ADV.)
2
AND
1. THE MANAGING DIRECTOR
B.M.T.C. CENTRAL OFFICE,
SHANTHINAGAR, K.H ROAD,
BANGALORE 560027
2. UNITED INDIA INSURANCE CO.LTD
DIVISION OFFICE, LAKSHMI COMPLEX,
NO.40,I FLOOR, K.R ROAD FORT,
BANGALORE 560002
BY ITS DIVISIONAL MANAGER.
...RESPONDENTS
(BY SRI K NAGARAJ, ADV. FOR R1,
SRI B.C.SEETHARAMA RAO, ADV. FOR R2.)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:31.1.2015 PASSED IN MVC NO.7693/2011 ON
THE FILE OF THE 15TH ADDITIONAL JUDGE, MACT,
COURT OF SMALL CAUSES, MAYOHALL UNIT,
BENGALURU, DISMISSING THE CLAIM PETITION FOR
COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:
JUDGMENT
Sri. K.T.Gurudev Prasad, learned counsel for the appellants.
Sri.K.Nagaraj, learned counsel for respondent No.1.
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Sri.B.C.Seetharama Rao, learned counsel for respondent No.2.
This appeal under Section 173 of the Motor Vehicles Act has been filed by the claimants being aggrieved by the judgment and award dated 31.01.2015 in MVC No.7693/2011 passed by the Motor Accident Claims Tribunal and Additional Judge, Court of Small Causes, Mayohall Unit, Bengaluru (SCCH-19), by which the claim petition filed by the appellants came to be dismissed.
2. The facts giving rise to filing of the appeal briefly stated are that on 12.09.2011 at 04.20 p.m., when the deceased E.Saravanan @ Solomon was riding his motor cycle bearing Reg.No.KA-03-EK-5577 on Dr. Rajkumar Road, Rajajinagar, Bengaluru, a BMTC bus bearing Reg.No.KA-50-F-180, which was being driven by the driver in a rash and negligent manner so as to 4 endanger human life, dashed against the motor cycle of the deceased. The deceased, as a result of the aforesaid accident, was thrown out and sustained grievous injuries and ultimately succumbed to the injuries.
3. The claimants filed a petition under Section 166 of the Motor Vehicles Act inter alia on the ground that the deceased at the time of the accident was aged about 32 years and was working as Lift Servicer at Singalur, J.P. Nagar and was earning Rs.35,300/- per month. It was also pleaded that deceased had one minor daughter, parents and widow, who were dependant on him. On receipt of notice, respondent No.1 did not appear and was placed ex-parte. Respondent No.2 filed an application in which the claim of the claimants was denied. However, it was admitted that the bus was insured with respondent No.2. It was further pleaded that deceased was solely responsible for 5 the accident and the same was not on account of the violation of the traffic rules by the driver of the bus. Respondent No.2 called upon the claimants to prove their relationship with the deceased. The name, age, address, avocation and income of the deceased were denied. On the basis of the pleadings of the parties, the claims tribunal framed the issues and thereafter, recorded the evidence. The wife of the deceased got herself examined as PW1 and Human Resource Senior Executive, Schindler was examined as PW2 and the claimants furnished as many as 23 documents, which were marked as Exs.P1 to P23. Whereas, respondent No.2 examined the driver of the bus as RW1. The claims tribunal vide impugned judgment and award inter alia held that the claimants have failed to lead any evidence to show that the name of the deceased was 'Solomon @ E.Saravanan' and their 6 relationship with the deceased. Accordingly, claim petition was dismissed.
4. Learned counsel for the claimants while inviting the attention of this Court to the documents on record submitted that the claimants had duly established their relationship with the deceased. It is further submitted that their relationship was not denied specifically in the written statement filed on behalf of the Insurance Company.
5. On the other hand, learned counsel for respondent No.2 submitted that the claimants had failed to prove their relationship with the deceased and therefore, the petition has rightly been dismissed.
6. We have considered the submissions made by learned counsel for the parties and have perused the records.
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7. The widow has been examined as PW1. In her evidence, she has stated that she is the wife of E.Saravanan and her husband has died in an accident on account of rash and negligent driving of the bus by its driver.
8. We have carefully perused the cross- examination. In the cross-examination, several times on behalf of respondent No.2, a suggestion has been put to her that the accident has been caused on account of the rash and negligent driving of the motor cycle by her husband. Thus, from perusal of the cross-examination, it is evident that respondent No.2 has no where challenged the status of PW-1 as wife and has not challenged the relationship of the claimants with the deceased, namely, E.Saravanan.
9. On the other hand, from perusal of the cross-examination, it is evident that respondent 8 No.2 has admitted the relationship of the claimants with the deceased. It is well established in law that where a testimony of a witness in the cross- examination-in-chief is not challenged in the cross- examination, the same is taken to be admitted. See: 'STATE OF UTTAR PRADESH VS. NAHAR SINGH (DEAD) AND OTHERS', '(1998) 3 SCC 561' and 'RAJINDER PERSHAD (DEAD) BY LRS VS. SMT. DARSHANA DEVI', '(2001) 7 SCC 69'.
10. In view of the aforesaid enunciation of law, in the absence of any challenge in the cross- examination to the relationship of the wife and other claimants with the deceased, it has to be held that the widow is the wife of the deceased and other claimants are the children and parents of the deceased. However, the aforesaid aspect of the matter has not been appreciated by the tribunal. Therefore, the finding in this regard recorded by the claims tribunal is hereby setaside. 9
11. Now, we may come to the quantum of compensation, which is payable to the claimants. It is pertinent to note that at the time of the accident, the deceased was aged about 32 years and was employed as Lift Servicing Contractor. Though claimants have produced the statement at Ex.P18, however, from perusal of Ex.P18, no definite inference can be drawn with regard to the income of the deceased. Therefore, in the fact situation of the case, we take notional income of the deceased to be Rs.10,000/- per month. Taking into account the age of the deceased, a sum of 40% is to be added as future prospects to the income of the deceased. Thus, the monthly income of the deceased comes to Rs.14,000/-. Out of the aforesaid amount, 1/4th has to be deducted on account of personal expenses. Therefore, monthly income of dependency comes to Rs.10,500/-. If the age of the deceased is taken into account, which is 10 32 years at the time of the accident, the appropriate multiplier would be 16. Thus, the appellants are entitled to a sum of Rs.20,16,000/- towards 'loss of dependency'. In addition, a sum of Rs.70,000/- is awarded under the head 'conventional heads' in view of the decision of the Hon'ble Supreme Court in 'NATIONAL INSURANCE COMPANY LIMITED VS. PRANAY SETHI', AIR 2017 SC 5157.
12. Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 6% per annum from the date of the petition till actual payment is made to the claimants.
13. The judgment and award passed in MVC No.7693/2011 dated 31.01.2015 passed by the Motor Accidents Claims Tribunal and Additional Judge, Court of Small Causes, Mayohall Unit, 11 Bengaluru (SCCH-19) is set aside. In the result, the appeal is disposed of.
14. Needless to state that on amount being deposited by the Insurance Company before the claims tribunal, the claims tribunal shall issue directions with regard to the apportionment of the amount of compensation among the claimants.
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JUDGE Sd/-
JUDGE dn/-
CT-HR