Bangalore District Court
Is The Wife vs Are Jointly And Severally Liable To Pay on 20 January, 2015
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 20th day of January, 2015.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com., LL.B. (Spl),
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C.No.6038/2011
1. Smt. Manaki Devi
W/o Late Prahalad Chaudhari @
Prahalad Chowhan,
Aged about 33 years.
2. Kumari Manasad Chaudhari
D/o Late Prahalad Chaudhari @
Prahalad Chowhan,
Aged about 9 years.
3. Master Budharam Chaudari
S/o Late Prahalad Chaudhari @
Prahalad Chowhan,
Aged about 7 years.
4. Kumari Asha
D/o Late Prahalad Chaudhari @
Prahalad Chowhan,
Aged about 5 years.
5. Master Teju
S/o Late Prahalad Chaudhari @
Prahalad Chowhan,
Aged about 2 years.
6. Sri. Chaudhary
S/o Shiv Pujan Chaudhary,
Aged about 63 years.
M.V.C. NO.6038/2011
2 (SCCH-
7)
7. Smt. Kuesari Devi @ Kulesari Devi
W/o Sri. Shri Chaudhary,
Aged about 56 years.
Since the Petitioners No.2, 3, 4 and 5
are minors, they are duly
represented by their mother,
i.e., the Petitioner No.1.
All are residing at
No.33A, Golaudih Village,
Kudara Anchal,
Kaimur District - 821 108,
Bihar. .... PETITIONERS
(By Sri.K.N. Harish Babu, Adv,.)
V/s
1. Mr. Raghavendra
S/o Hanumantha,
No.8, Kulle Gowdanapalya,
Goliahalli Post, Kengeri,
Bangalore - 560 060.
(R.C. Owner of the Canter bearing
Registration No.KA-02-B-8060)
2. The Branch Manager,
The Oriental Insurance Company
Ltd.,
401/2, Swastic Manandi Arcade, ....RESPONDENTS
S.C.Road, Sheshadripuram,
Bangalore - 560 020.
(I.P.No.421902/31/2011/2252/001
Valid from 01.02.2011 to 09.08.2011)
(R1-Exparte)
(R2-By Sri. R. Purushothama, Adv.,)
JUDGMENT
M.V.C. NO.6038/2011 3 (SCCH-
7) It is pertinent to note here that, the present was dismissed for non-prosecution on 15.01.2013 and later, as per the Order dated 27.03.2014 passed in Misc.P.No.243/2013, the petition is restored and taken on file. Hence, the present petition is pending for consideration and disposal.
2. The petitioners have filed the present petition as against the Respondents No.1 and 2 under Section 166 of the Motor Vehicles Act, 1989 praying to award compensation of Rupees 20,00,000/- with interest in respect of death of Late. Prahalad Chaudhari @ Prahalad Chowhan S/o Sri. Chaudhary, with costs.
3. The brief averments of the petitioners' case are as follows;
a) On 12.07.2011 at about 9.00 p.m., when the deceased was a pedestrian proceeding from his house to work place on Bangalore-Mysore Road and when he was crossing the road, near Pepsi Gate 'U' Turn, Kengeri Hobli, Bangalore Taluk, at that time, the driver of the Canter bearing Registration No.KA-02-B-8060, was driving with high speed, reckless, rash and negligent manner, endangering to human life, without observing traffic rules and regulations, dashed against the deceased and caused the accident. Due to the terrific impact, the deceased fell down and sustained severe fatal injuries all over the body. Immediately, he was shifted to Rajarajeshwari Hospital, but, he died on the way M.V.C. NO.6038/2011 4 (SCCH-
7) to Hospital. On next day, the post mortem was conducted at Rajarajeshwari Medical College and Hospital, Bangalore.
b) Prior to the date of the accident, the deceased was hale and healthy, working as Machine Operator in M/s. Brundavan Enterprises, No.25/C, Industrial Area, Kumbalgod, Mysore Road, Bangalore and was earning a sum of Rupees 8,000/- p.m. Due to the death of the deceased, the family members of the deceased had lost their only earning member of their family. They are entirely depended on the earning of the deceased.
c) Due to the accident and death of the deceased, they are under deep mental shock, untold hardship. Until today they cannot come out from the shock. The first Petitioner is the wife, 2nd and 4th Petitioners are daughters, 3rd and 5th Petitioners are son, 6th Petitioner is the father and the 7th Petitioner is the mother of the deceased.
d) 2nd to 7th Petitioners had lost the love, affection, care, income and guidance of the deceased. The 1 st Petitioner had lost the love, affection, care, income, companionship and guidance of the deceased. They are the only legal heirs of the deceased.
e) The Bidadi Police, who were informed about the accident had registered a case against the driver of the Canter bearing Registration No.KA-02-B-8060 in Crime No.418/2011 under Section 279 and 304(A) of IPC.
M.V.C. NO.6038/2011 5 (SCCH-
7)
f) The first Respondent is the R.C. Owner of the Canter bearing Registration No.KA-02-B-8060, which was duly insured with the second Respondent. Hence, both the Respondents are jointly and severally liable to pay compensation of Rupees 20,00,000/- under the heads of conveyance, loss of dependency, loss of expectation of life, loss of consortium for mental shock and agony, loss of estate for inconvenience and discomfort caused, for funeral and obsequies expenses for loss of earnings etc., Hence, this Petition.
4. Though the notice was duly served on the Respondent No.1, he was remained absent and hence, he is placed as exparte on 12.12.2011.
5. In response to the notice, the Respondent No.2 has appeared before this Tribunal through his Learned Counsel and has filed the written statement.
6. The Respondent No.2 inter-alia denying the entire case of the Petitioners, has further contended as follows;
a) He admits to have issued a package policy bearing No.421902/31/2011/2252/001 in favour of the first Respondent in respect of the vehicle bearing Registration No.KA-02-B-8060 and its liability, if any, are subject to the terms and conditions of the policy. If the vehicle had been entrusted by the insured to a person, who did not possess valid and effective driving licence and badge to drive the M.V.C. NO.6038/2011 6 (SCCH-
7) same at the time of alleged accident, he is not liable to indemnify the insured.
b) The deceased was crossing the road negligently without observing the traffic, as such, the deceased is totally responsible for the alleged accident. The Petitioners have colluded with the Police and have filed a complaint against the driver of the Canter and have created bogus records in order to claim compensation from them. The petition is not maintainable either in law or on facts.
c) The Petitioners are not depending upon the income of the deceased and they are not the legal representatives of the deceased. No such accident has occurred on the alleged date due to the negligence of the driver of the Canter. The deceased might have crossed the road during night hours by consuming the alcohol without observing the traffic on road.
d) The allegations are made by the Petitioners only to get higher compensation from them.
e) Even though the charge sheet is filed against the driver of the Canter bearing Registration No.KA-02-B-8060, the deceased is totally responsible for the alleged accident. The Hon'ble Court may kindly fix the liability and negligence on the deceased.
f) The alleged charge sheeted vehicle never touched the deceased.
M.V.C. NO.6038/2011 7 (SCCH-
7)
g) In the event, if the insured/first Respondent fails to contest the petition on merits or colluded with the claimant, he may please be permitted to avail all defence available open to the insured as provided under Section 170 of the M.V. Act, 1988. The Police have not intimated the alleged accident to the company, so also, the insured has not intimated the same to the company.
h) The compensation claimed by the Petitioners is highly excessive and it has no rationale. The Petitioners are not entitled to claim Rupees 20,00,000/- from the Respondents. The Petitioners are not entitled to claim interest as alleged in the petition. Hence, prayed to dismiss the petition.
7. Based on the above said pleadings, my Learned Predecessor-in-Office has framed the following Issues;
ISSUES
1. Whether the Petitioners prove that they are the legal representatives of the deceased Sri.Prahalad Chaudhari @ Prahalad Chowhan?
2. Whether the Petitioners prove that, on 12.07.2011 at about 9.00 p.m. the deceased was proceeding as pedestrian from his house to work place, on Bangalore-Mysore Road, near Pepsi Gate 'U' Turn, Kengeri Hobli, Bangalore, within the jurisdiction of Bidadi Police Station, at that time, Canter bearing Registration No.KA-02-B-8060 being driven by its driver came to said spot with high speed in rash and negligent manner, M.V.C. NO.6038/2011 8 (SCCH-
7) while so driving dashed his vehicle against deceased? If so, whether Petitioners prove deceased was succumbed to the injuries was due to alleged accident?
3. Whether the Petitioners prove that they are entitled for compensation? If so, how much and from whom?
4. What Order or Award?
8. In order to prove their case, the Petitioners have examined the Petitioner No.6 as P.W.1 by filing an affidavit as his examination-in-chief and have placed reliance upon Ex.P.1 to Ex.P.14. On the other hand, the Respondent No.2 has not examined any witness on his behalf. But, he has placed reliance upon Ex.R.1, with consent.
9. Heard the arguments.
10. In support of the submission, the Learned Counsel appearing for the Respondent No.2. Sri. R. Purushothama has placed reliance upon the decision reported in, ILR 2004 KAR 1104 (Koosappa Poojari V/s K.Sadabba and Others), wherein, it is observed that, MOTOR VEHICLES ACT 1988 (59/88) -
SECTION 173 (1) - CONTRIBUTORY NEGLIGENCE - Claimant had cross the road where he was not supposed to cross - HELD - Certain degree of contributory negligence will have to be attributed to him - If a pedestrian is crossing over a roadway at any place other than which is meant for pedestrian crossing, he can not claim M.V.C. NO.6038/2011 9 (SCCH-
7) any specific precedence and the responsibility for causing the accident - Pedestrian has to share the negligence along with the driver.
11. My answers to the above said Issues are as follows;
Issue No.1 : In the Affirmative,
Issue No.2 : In the Affirmative,
Issue No.3 : Partly in the
Affirmative,
The Petitioners are
entitled for a sum of
Rupees 15,11,000/- as
compensation from the
Respondent No.2.
Issue No.4 : As per the final Order,
for the following;
REASONS
12. ISSUE NO.1 :- The P.W.1, who is the Petitioner No.6 has stated in his examination-in-chief that, the Petitioner No.1 is his daughter-in-law, the Petitioners No.2 to 5 are his Grand children and Petitioner No.7 is his wife. He has further stated that, they have filed the present claim petition claiming compensation for the death of his son Prahalad Chaudhari @ Prahalad Chowhan, in the Road traffic accident about 3 years ago at about 9 p.m., when he was pedestrian proceeding on Bangalore-Mysore Road, near Pepsi Gate 'U' turn, Kengeri Hobli. In this regard, the Petitioners have produced Ex.P.8 Genealogical Tree, which is in Marathi Language, Ex.P.8(a) English translation copy of M.V.C. NO.6038/2011 10 (SCCH-
7) Ex.P.8, Ex.P.9 Ration Card, which is in Marathi Language, Ex.P.9(a) English translation copy of Ex.P.9, Ex.P.10 Voters list, which is in Marathi Language, Ex.P10(a) English translation copy of Ex.P.10, Ex.P.11 Election Identity Card of Petitioner No.1, Ex.P.12 Election Identity Card of Petitioner No.6 and Ex.P.13 Election Identity Card of Petitioner No.7. On perusal of contents of Ex.P.8 to Ex.P.13, it clearly goes to show that, the Petitioner No.1 is a wife, Petitioners No.2 to 5 are the children, Petitioner No.6 a father and Petitioner No.7 is a mother of Late Prahalad Chaudhari @ Prahalad Chowhan. The Petitioners have also produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.6 PM Report and Ex.P.11 Inquest, which clearly disclosed that, Late Prahalad Chaudhari @ Prahalad Chowhan died on 12.7.2011 at 9.30 AM, due to the injuries sustained in the road traffic accident. No doubt, the P.W.1 in his cross-examination has stated that, they have not produced the Election Identity Card relating to his deceased son. But, it no way affect to consider the relationship of the Petitioners with the said deceased, as the above said Ex.P.8 to Ex.P.13 are itself sufficient to consider the relationship of the Petitioners with the deceased. Based on the said reasons, it can be safely held that, the Petitioner No.1 is a wife, Petitioners No. 2 to 5 are the children, Petitioner No.6 is a father and Petitioner No.7 is a mother of the said deceased Prahalad Chaudhari @ Prahalad Chowhan. In this regard, no question or suggestion put to P.W.1 by the Respondent No.2. Therefore, it can be safely held that, the Petitioners No.1 to 7 are the legal representatives of the said deceased. Accordingly, I answered Issue No.1 in the Affirmative.
M.V.C. NO.6038/2011 11 (SCCH-
7)
13. ISSUE NO.2 :- The P.W.1 has stated in his examination-in-chief that, about 3 years ago, at about 9.00 p.m., when his deceased son was pedestrian, proceeding on Bangalore-Mysore Road and when came near Pepsi Gate U turn, Kengeri Hobli, at that time, the driver of the Canter was driving with speed, reckless and rash and negligent manner, endangering human life without observing traffic rules and regulations and dashed against his son and caused the accident. He has further stated that, due to the traffic impact, his son fell down and sustained fatal injury and immediately, his son was shifted to Rajarajeswari Hospital, Bangalore, wherein, the Doctor examined and declared as dead and on next day, P.M. was conducted at Rajarajeswari Hospital, Bangalore and handed over the body. He has further stated that, regarding the said accident, there is a complaint before the Bidadi Police Station against the driver of the said Canter and after proper investigation, the Police have filed the charge sheet against the driver of the said Canter. He has further stated that, the accident occurred due to rash and negligent driving of the said Canter.
14. No doubt, the P.W.1 in his cross-examination has stated that, he has not seen the accident. The P.W.1, who is the Petitioner No.6 is not an eye witness of the said accident. But, he has clearly stated in his cross-examination that, after the accident, he has seen the accidental spot. Further more, the contents of Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Panchanama, Ex.P.4 MVI Report, Ex.P.5 Spot Hand Sketch, Ex.P.6 P.M. Report and Ex.P.7 Inquest produced by M.V.C. NO.6038/2011 12 (SCCH-
7) the Petitioners clearly disclosed about the occurrence of the said accident, wherein, deceased Sri.Prahalad Chaudhari @ Prahalad Chowhan succumbed to the injuries, which is clear from the following discussion.
15. It is contended by the Respondent No.2 in his written statement that, no such accident has occurred on the alleged date due to the negligence of the driver of the Canter and the deceased might have crossed the road during night hours by consuming alcohol without observing the traffic on road. He has further contended that, even though the charge sheet is filed against the driver of the Canter bearing No.KA-02-B-8060, the deceased is totally responsible for the alleged accident and hence, the liability and negligence may be fixed on the deceased. He has further contended that, the alleged charge sheeted vehicle never touched the deceased. It is pertinent to note here that, with the consent, the Charge Sheet produced by the Petitioners is marked at Ex.P.14. Admittedly, the Investigating Officer has filed a Charge Sheet as against the driver of the offending Canter bearing Registration No.KA- 02-B-8060. Further, on perusal of the contents of Ex.P.5 Spot Hand Sketch, it appears that, there is no Zebra cross or Pedestrian cross in the accidental spot, wherein, the deceased was proceeding on the road. But, based on the said contentions taken by the Respondent No.2 in his written statement as well as the contents of Ex.P.5 Spot Hand sketch, it cannot be believed and accept the defence taken by the Respondent No.2 that, due to negligence on the part of the deceased himself, the said road traffic M.V.C. NO.6038/2011 13 (SCCH-
7) accident was taken place and the offending Canter never touched the deceased and at the time of accident, the deceased might have crossed the road during night hours by consuming the alcohol without observing the traffic on road, as to substantiate the said defence, the Respondent No.2 has not adduced any material evidence on his behalf. Further more, though the P.W.1 has been cross-examined by the Respondent No.2, nothing has been elicited from his mouth in respect of the said specific defence. More so, no authenticated document is available on record to show that, at the time of accident, the deceased was consuming alcohol and due to his mistake itself, the said road traffic accident was taken place. Therefore, the degree of contributory negligence cannot be attributed as against the said deceased. Hence, the Principles enunciated in the decision cited by the learned counsel appearing for the Respondent No.2 are not applicable to the present facts and circumstances of the case on hand.
16. From the contents of Ex.P.1 FIR and Ex.P.2 Complaint, it clearly goes to show that, on 12.07.2011 on 9.00 p.m., when the deceased was proceeding on the Bangalore-Mysore road and when he was crossing the said road, the offending Canter bearing Registration No.KA-02-B- 8060 came from Mysore-Bangalore with high speed, rash and negligent manner and dashed against the deceased Prahalad Chaudhari @ Prahalad Chowhan, when he was crossing the road and due to which, he had sustained grievous injuries on his head and through 108 Ambulance, he was shifted to Rajarajeshwari Hospital for treatment and M.V.C. NO.6038/2011 14 (SCCH-
7) during the transit, he died and the Doctors of the said Hospital have declared the death of the said deceased and due to the negligence on the part of the driver of the said offending Canter, the said accident was taken place and based on the Ex.P.2 Complaint, the Bidadi Police have registered a Criminal case as against the driver of the said offending Canter bearing Registration No.KA-02-B-8060 for the offences Under Section 279 and 304(A) of IPC R/w Section 187 of M.V. Act under Crime No.418/2011. It is also to clear from the contents of Ex.P.1 FIR and Ex.P.2 Complaint that, there is no delay as such in lodging the said Ex.P.2 Complaint.
17. From the contents of Ex.P.3 Spot Panchanama and Ex.P.4 MVI Report, it is further made crystal that, the said offending Canter bearing Registration No.KA-02-B-8060 is very much involved in the said road traffic accident, wherein, the deceased succumbed to the injuries. It is also clear from the contents of Ex.P.4 MVI Report that, the said offending Canter is damaged in the said road traffic accident, which clearly disclosed about the terrific impact of the said accident. It is also mentioned in the Ex.P.4 MVI Report that, the accident was not occurred due to any mechanical defects of the said offending Canter.
18. It is also clear from the contents of Ex.P.5 Spot Hand Sketch that, at the time of accident, the deceased was almost all on the side of the road and the driver of the said offending Canter could have avoiding the said road traffic accident by taking little care and there is no negligence on M.V.C. NO.6038/2011 15 (SCCH-
7) the part of the said deceased, but, the entire negligence is on the part of the driver of the offending Canter. The contents of the said Ex.P.5 Spot Hand Sketch are not disputed by the Respondent No.2 while cross-examining the P.W.1. Even, Ex.P.5 Spot Hand Sketch does not disclosed about the contributory negligence on the part of the deceased.
19. The contents of Ex.P.6 P.M. Report and Ex.P.7 Inquest further clearly disclosed that, due to the accidental injuries, the said Prahalad Chaudhari @ Prahalad Chowhan died and not for other reasons. It is clearly mentioned in Ex.P.6 P.M. Report that, the cause of death is due to head injuries sustained in the road traffic accident.
20. Ex.P.14 Charge Sheet further clearly disclosed that, since during the course of investigation, it is found that, due to high speed, rash and negligent manner of driving of the said offending Canter bearing Registration No.KA-02-B-8060 by its driver, namely, Manjunath, the said road traffic accident was taken place on 12.07.2011 on 9.00p.m. on Bangalore-Mysore Road, in Pepsi Gate U turn and the said offending Canter dashed against the deceased Prahalad Chaudhari @ Prahalad Chowhan, when he was crossing the road and due to which, he had sustained head injury and when he was shifted to Rajarajeshwari Hospital, he died at 9.30 p.m. during transit and as such, the Investigating Officer has filed a Charge Sheet as against the driver of the said offending Canter for the offences M.V.C. NO.6038/2011 16 (SCCH-
7) punishable Under Section 279 and 304(A) of IPC and Section 134 (a) and (b) R/w 187 of M.V. Act.
21. From the above said material evidence adduced by the Petitioners, it is made crystal clear that, the offending Canter bearing Registration No.KA-02-B-8060 as well as its driver are very much involved in the road traffic accident, wherein, deceased Prahalad Chaudhari @ Prahalad Chowhan succumbed to the injuries.
22. Under the above said facts and circumstances as well as the reasons given, this Tribunal has come to the conclusion that, the petitioners by adducing acceptable material evidence, both oral and documentary, have established that, the accident occurred due to high speed, rash and negligent manner of driving of the Canter bearing Registration No.KA-02-B-8060 by its driver and in the said accident, Sri.Prahalad Chaudhari @ Prahalad Chowhan succumbed to the injuries. Accordingly, I answered Issue No.2 in the Affirmative.
23. ISSUE NO.3 :- While answering Issue No.2, this Tribunal has already come to the conclusion that, Prahalad Chaudhari @ Prahalad Chowhan succumbed to the injuries, which was taken place in the road traffic accident, which was occurred on 12.07.2011 at 9.10 p.m.
24. The P.W.1 has stated that, at the time of accident his deceased son was aged about 35 years. The Petitioners have not produced any authenticated documents to show the actual age of the said deceased at M.V.C. NO.6038/2011 17 (SCCH-
7) the time of accident. Ex.P.6 P.M. Report and Ex.P.7 Inquest clearly disclosed that, at the time of accident, the deceased was 35 years old. Therefore, the age of the deceased is considered as 35 years at the time of accident.
25. The P.W.1 has stated that, prior to the date of accident, his son was hale and healthy and working at Machine Operator at M/s. Brundavan Enterprises, Industrial Area, Kumbalgood, Mysore by drawing salary of Rupees 8,000/- p.m. The Petitioners have also not produced any authenticated documents to show that, at the time of accident, the deceased was working as Machine Operator at M/s. Brundavan Enterprises, Industrial Area, Kumbalgood, Mysore and he was drawing a salary of Rupees 8,000/- p.m. The same has also been clearly admitted by the P.W.1, in his cross-examination. The P.W.1 has further stated in his cross- examination that, his deceased son was studied up to 9th Standard. As this Tribunal has already come to the conclusion that, the Petitioner No.1 is a wife, Petitioners No.2 to 5 are the children, Petitioner No.6 is a father and Petitioner No.7 is a mother of the said deceased. From this, it appears that, the deceased was having a family. Therefore, in the absence of the material evidence to consider the occupation and income of the deceased, based on his age and status of family, this Tribunal feels that, it is just, proper and necessary to consider the notional income of the deceased is of Rupees 6,000/- p.m. at the time of accident. Therefore, the notional income of the deceased is considered as Rupees 6,000/- p.m. at the time of accident.
M.V.C. NO.6038/2011 18 (SCCH-
7)
26. The P.W.1 has stated that, his deceased son was contributed his entire earning for their house and family purposes.
27. As per the decision reported in 2013 ACJ 1403 (Rajesh and Others V/s Rajbir Singh and Others), as the deceased was aged 35 years, towards future prospects 50% of the income has to be added. So, 50% of Rupees 6,000/- comes to Rupees 3,000/-. Therefore, the income of the deceased comes to Rupees 9,000/- p.m. (Rs.6,000/- + Rs.3,000/-).
28. While answering Issue No.1, this Tribunal has already held that, the Petitioners No.1 to 7 are the legal representatives of the said deceased. But, based on the same, it cannot be said that, the Petitioners are the dependents of the said deceased, as admittedly, the Petitioner No.6 is a father of the said deceased and the P.W.1, who is the Petitioner No.6 in his cross-examination has clearly stated that, his son was not sent amount to him while he was working at Bangalore. Further more, no material documents produced by the Petitioners to show that, at the time of death of the deceased, the Petitioner No.6, who is a father of the said deceased was residing along with the deceased. The same has been clearly admitted by the P.W.1 in his cross- examination. More so, the P.W.1 in his cross-examination has clearly stated that, whatever the amount earned by his son was spent by his deceased son to his expenses only. From this, it made crystal clear that, during the life of the said deceased, the M.V.C. NO.6038/2011 19 (SCCH-
7) Petitioner No.6 was not residing along with him and the deceased was not maintaining his father. Hence, the Petitioner No.6, who is a father of the deceased, cannot be considered as a dependent of the deceased. Therefore, the Petitioner No.1 being a wife, the Petitioner No.2 to 5 being minor children and the Petitioner No.7 being the mother of the deceased, are only the dependents of the said deceased.
29. As this Tribunal has already come to the conclusion that, the Petitioner No.1 is a wife, the Petitioners No.2 to 5 are minor children and the Petitioner No.7 is a mother of the deceased and they are only the dependents of the deceased and the Petitioner No.6, who is a father of the deceased cannot be considered as a dependent of the deceased. Therefore, deceased left behind 6 dependents. As per the principles laid down in Sarala Varma's Case, considering the number of the dependents i.e., 6, 1/4 th of the income has to be deducted towards personal and living expenses of the deceased i.e., Rupees 2,250/- (1/4 th of Rs.9,000/-). Therefore, loss of dependency comes to Rupees 6,750/- (Rs.9,000/- (-) Rs.2,250/-). The multiplier corresponding to the age of the deceased i.e., 35 years is 16 as per Sarala Varma's Case. Therefore, loss of dependency comes to Rupees 12,96,000/- (Rs.6,750/- x 12 x
16). Therefore, Petitioners are entitled for Rupees 12,96,000/-, towards loss of dependency due to death of Prahalad Choudhary @ Prahalad Chowhan.
M.V.C. NO.6038/2011 20 (SCCH-
7)
30. The P.W.1 has stated that, on the next day, the post mortem was conducted at Rajarajeshwari Hospital, Bangalore and handed over the body and the body got shifted to their village at Bihar and they have done final rites at their village at Bihar. He has further stated that, they had spent Rupees 50,000/- for his conveyance charges, funeral and obsequies ceremony expenses and they lost entire bills. From this, it appears that, to substantiate the said evidence, the Petitioners are not having any bills. But, from the said evidence, it appears that, though the accident was taken place at Bangalore, the dead body of the deceased was shifted by the Petitioners to Bihar, which is their native State. Therefore, the Petitioners have spent much amount for transportation of dead body.
31. As per the principles laid down in the decision reported in 2013 ACJ 1403 cited above, loss of consortium to the Petitioner No.1, who is a wife of the deceased should be Rupees 1,00,000/- and funeral expenses would be Rupees 25,000/-.
32. The P.W.1 has stated that, due to the said accident, himself and his wife have lost their only son and his grand- children had lost their father and his daughter-in- law lost her husband. He has further stated that, they have lost their only earning member of their family and due to the death of his son in the said accident, himself, his grand- children and his wife have lost love and affection, care and guidance, income, etc., of his son and his daughter-in-law has lost love and affection, care, guidance, income and M.V.C. NO.6038/2011 21 (SCCH-
7) companionship of her husband and till today, they could not come out of the said shock.
33. Considering the facts and circumstances of the case and relationship of the Petitioners with the deceased, towards loss of love and affection of Petitioners, Rupees 35,000/- is awarded.
34. Rupees 20,000/- is awarded towards expenses of transportation of dead body and Rupees 35,000/- is awarded towards loss of estate.
35. In this way, the Petitioners are entitled for the following amount of compensation:-
Sl.No Compensation heads Compensation . amount
1. Loss of Dependency Rs. 12,96,000-00
2. Loss of Consortium Rs. 1,00,000-00
3. Funeral Expenses Rs. 25,000-00
4. Expenses of transportation Rs. 20,000-00 of dead body
5. Loss of Love and Affection Rs. 35,000-00
6. Loss of Estate Rs. 35,000-00 TOTAL Rs. 15,11,000-00
36. In all, the Petitioners are entitled for total compensation of Rupees 15,11,000/- with interest at the rate of 6% per annum on the above said sum.
37. It is pertinent to here that, the Petition was dismissed for non-prosecution on 15.01.2013 and later, as per the Order dated 27.3.2014 passed in Misc. Petition M.V.C. NO.6038/2011 22 (SCCH-
7) No.243/2013, the present Petition is restored and taken on file, wherein, it is observed and ordered that, the Petitioners are not entitled for interest on the compensation from the date of Petition, but, they are entitle for interest from the date of commencement of evidence. The Petitioners have commenced their evidence on 22.04.2014. Therefore, the Petitioners are entitled for the said rate of interest at 6% from 22.04.2014 till the date of payment.
38. While answering Issue No.2, this Tribunal has already come to the conclusion that, the offending Canter bearing Registration No.KA-02-B-8060 as well as its driver are very much involved in the road traffic accident, wherein, Sri Prahalad Choudhary @ Prahalad Chowhan succumbed to the injuries. The Respondent No.2 has clearly admitted in its written statement that, they have issued a package policy bearing No.421902/31/2011/2252/001 in favour of the Respondent No.1 in respect of the said offending Canter. The Respondent No.2 has also produced the copy of Insurance Policy, which is marked at Ex.R.1 with consent. It is clear from the contents of Ex.R.1 Insurance Policy that, the Respondent No.1 is an owner and the Respondent No.2 is an insurer of the said offending Canter and as on the date of accident, the Insurance Policy of the said Canter is valid. From this, it appears that, the Respondent No.1 is an owner and the Respondent No.2 is an insurer of the said offending Canter. To deny or to discard the same, nothing is available on record on behalf of the Respondent No.1 as though the notice was duly served on him, he was remained absent and hence, he is placed as exparte. No allegations leveled as M.V.C. NO.6038/2011 23 (SCCH-
7) against the driver of the said offending vehicle by the Investigating Officer in Ex.P.14 Charge Sheet that, he was not having a valid and effective driving licence to drive the said offending Canter as on the date of the accident. Under such circumstances, both the Respondents No.1 and 2 are jointly and severally liable to pay the above said compensation with interest to the Petitioners. Since, the Respondent No.2 is an insurer, he shall indemnify the Respondent No.1. Hence, Issue No.3 is answered accordingly.
39. ISSUE NO.4 :- For the aforesaid reasons, I proceed to pass the following, ORDER The petition filed by the Petitioners under Section 166 of the Motor Vehicles Act, 1989, is hereby partly allowed with costs.
The petitioners are entitled for compensation of Rupees 15,11,000/- with interest at the rate of 6% p.a. from 22.04.2014 till the date of payment, from the Respondent No.2.
The Respondent No.2 shall deposit the said compensation and interest in this Tribunal, within one month from the date of this order.
M.V.C. NO.6038/2011 24 (SCCH-
7)
The Petitioners shall share the
compensation amount in the ratio of
45:10:10:10:10:5:10.
In the event of deposit of compensation and interest, 50% relating to Petitioners No.1, 6 and 7 shall be released in their respective names through account payee cheques, on proper identification.
Remaining 50% relating to Petitioners No.1, 6 and 7 shall be kept in FD in their respective names, in any nationalized bank of their choice, for a period of 3 years and entire shares of Petitioners No.2 to 5 shall be kept in FD in their respective names, till they attain majority.
Advocate's fee is fixed at Rupees 1,000/-.
Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by me in the open Court on this the 20th day of January, 2015.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl.Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE M.V.C. NO.6038/2011 25 (SCCH-
7)
1. WITNESSES EXAMINED BY THE PETITIONERS :-
P.W.1 : Sri. Chaudhary
2. DOCUMENTS MARKED BY THE PETITIONERS :-
Ex.P.1 : True copy of FIR
Ex.P.2 : True copy of Complaint
Ex.P.3 : True copy of Panchanama
Ex.P.4 : True copy of MVI Report
Ex.P.5 : True copy of Spot Hand Sketch
Ex.P.6 : True copy of P.M. Report
Ex.P.7 : True copy of Inquest
Ex.P.8 : Genealogical tree in Marathi Language
Ex.P.8(a) : Translation copy of Ex.P.8
Ex.P.9 : True copy of Ration Card in
Ex.P.9(a) : Marathi Language
Translation copy of Ex.P.9
Ex.P.10 : Voter List in Marathi Language
Ex.P.10(a) : Translation of Ex.P.10
Ex.P.11 : Election ID Card of Manaki Devi
Ex.P.12 : Election ID Card of Shri Choudhary
Ex.P.13 : Election ID Card of Kulesari Devi
Ex.P.14 : Charge Sheet
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
-NIL-
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
Ex.R.1 : Insurance policy (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
M.V.C. NO.6038/2011 26 (SCCH-
7) SCCH-7 AWARD BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA: BANGALORE CITY M.V.C.No.6038/2011
1. Smt. Manaki Devi W/o Late Prahalad Chaudhari @ Prahalad Chowhan, Aged about 33 years.
2. Kumari Manasad Chaudhari D/o Late Prahalad Chaudhari @ Prahalad Chowhan, Aged about 9 years.
3. Master Budharam Chaudari S/o Late Prahalad Chaudhari @ Prahalad Chowhan, Aged about 7 years.
M.V.C. NO.6038/2011 27 (SCCH-
7)
4. Kumari Asha D/o Late Prahalad Chaudhari @ Prahalad Chowhan, Aged about 5 years.
5. Master Teju S/o Late Prahalad Chaudhari @ Prahalad Chowhan, Aged about 2 years.
6. Sri. Chaudhary S/o Shiv Pujan Chaudhary, Aged about 63 years.
7. Smt. Kuesari Devi @ Kulesari Devi W/o Sri. Shri Chaudhary, Aged about 56 years.
Since the Petitioners No.2, 3, 4 and 5are minors, they are duly represented by their mother, i.e., the Petitioner No.1.
All are residing at No.33A, Golaudih Village, Kudara Anchal, Kaimur District - 821 108, Bihar.
.... PETITIONERS (By Sri.K.N. Harish Babu, Adv,.) V/s M.V.C. NO.6038/2011 28 (SCCH-
7)
1. Mr. Raghavendra S/o Hanumantha, No.8, Kulle Gowdanapalya, Goliahalli Post, Kengeri, Bangalore - 560 060.
(R.C. Owner of the Canter bearing Registration No.KA-02-B-8060)
2. The Branch Manager, The Oriental Insurance Company Ltd., 401/2, Swastic Manandi Arcade, ....RESPONDENTS S.C.Road, Sheshadripuram, Bangalore - 560 020.
(I.P.No.421902/31/2011/2252/001 Valid from 01.02.2011 to 09.08.2011) (R1-Exparte) (R2-By Sri. R. Purushothama, Adv.,) WHEREAS, this petition filed on by the petitioner/s above named U/s.166 of the M.V.Act praying for the compensation of Rs. (Rupees ) for the injuries sustained by the petitioner/ Death of in a Motor Accident by Vehicle No. WHEREAS, this claim petition coming up before Indira Mailswamy Chettiyar, IX Addl.Small Causes Judge & XXXIV ACMM. Judge, Member, Bangalore, in the presence of Sri./Smt. Advocate for petitioner/s and of Sri./Smt. Advocate for respondent.
ORDER M.V.C. NO.6038/2011 29 (SCCH-
7) The petition filed by the Petitioners under Section 166 of the Motor Vehicles Act, 1989, is hereby partly allowed with costs.
The petitioners are entitled for compensation of Rupees 15,11,000/- with interest at the rate of 6% p.a. from 22.04.2014 till the date of payment, from the Respondent No.2.
The Respondent No.2 shall deposit the said compensation and interest in this Tribunal, within one month from the date of this order.
The Petitioners shall share the
compensation amount in the ratio of
45:10:10:10:10:5:10.
In the event of deposit of compensation and interest, 50% relating to Petitioners No.1, 6 and 7 shall be released in their respective names through account payee cheques, on proper identification.
Remaining 50% relating to Petitioners No.1, 6 and 7 shall be kept in FD in their respective names, in any nationalized bank of their choice, for a period of 3 years and entire shares of Petitioners No.2 to 5 shall be kept in FD in their respective names, till they attain majority.
Advocate's fee is fixed at Rupees 1,000/-. Given under my hand and seal of the Court this day of 2015 M.V.C. NO.6038/2011 30 (SCCH-
7) MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA: BANGALORE.
By the
Petitioner/s Respondent/s
No.1 No.2
Court fee paid on
Petition
Court fee paid on Power
Court fee paid on I.A.,
Process
Pleaders Fee
Total Rs.
Decree drafted Scrutinized by MEMBER, MACT,
METROPOLITAN AREA:
B'LORE
Decree Clerk SHERISTEDAR
M.V.C. NO.6038/2011
31 (SCCH-
7)
20.01.2015.
Judgment pronounced in open Court (vide separate Order) The petition filed by the Petitioners under Section 166 of the Motor Vehicles Act, 1989, is hereby partly allowed with costs.
The petitioners are entitled for compensation of Rupees 15,11,000/- with interest at the rate of 6% p.a. from 22.04.2014 till the date of payment, from the Respondent No.2.
M.V.C. NO.6038/2011 32 (SCCH-
7) The Respondent No.2 shall deposit the said compensation and interest in this Tribunal, within one month from the date of this order.
The Petitioners shall share the compensation amount in the ratio of 45:10:10:10:10:5:10.
In the event of deposit of compensation and interest, 50% relating to Petitioners No.1, 6 and 7 shall be released in their respective names through account payee cheques on proper identification.
Remaining 50% relating to Petitioners No.1, 6 and 7 shall be kept in FD in their respective names, in any nationalized bank of their choice, for a period of 3 years and entire shares of Petitioners No.2 to 5 shall be kept in FD in their respective names, till they attain majority.
Advocate's fee is fixed at Rupees 1,000/-. Draw award accordingly.
(INDIRA MAILSWAMY CHETTIYAR) IX Addl.Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
M.V.C. NO.6038/2011 33 (SCCH-
7)