Bangalore District Court
) K.N.Hanume Gowda vs ) United India Insurance Co.Ltd on 22 April, 2015
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL;
B'LORE (SCCH-17)
DATED THIS THE 22nd DAY OF APRIL, 2015
PRESENT; Sri. S.R. DINDALKOPP B.Sc., LL.B., ( Spl)
XIX Addl SCJ & MACT.
M.V.C.NO.2638-2014
Petitioners: 1) K.N.Hanume Gowda,
S/o. Late Nanjundappa,
Aged about 66 years,
2) Thimma Hanumaiah,
S/o. Late Rangappa,
Aged about 55 years.
3) Smt. Laxmamma,
W/o. Thimma Hanumaiah,
Aged about 50 years,
4) Ramesh,
S/o. Thimma Hanumaiah,
Aged about 28 years,
Residence of 1st petitioner
No.615, 1st Main Road,
5th Cross, Manjunatha Layout,
Thanisandra Main Road,
Bangalore - 560 077.
Residence of petitioners No.2 to 4
SCH 17 2 M.V.C.No.2638/14
Koratigere Taluk,
Tumkur District - 572 140.
(By Sri.MGR)
V/s.
Respondents : 1) United India Insurance Co.Ltd.,
TP Hub, 6th Floor, Krishi Bhavan
Building, Hudson Circle,
Bangalore.
2) B.Vasanthakumar,
S/o.Balasubramanyan,
No.4/39, South Street,
Muthu Ganapthi Post,
Namakkal,
Tamil Nadu - 637001.
(By Sri. R.S for respondent No.1
Exparte respondent No.2)
J U D G M E N T
The petitioners have filed this petition under Section 166 of MV Act for claiming compensation for the death of Mamatha B.T in MV Accident.
2. The brief facts of the petitioner's case are as follows:
SCH 17 3 M.V.C.No.2638/14 On 02.06.2004 at about 10.40 a.m., the deceased was proceeding as a pillion rider on TVS Moped of her husband petitioner No.1 on Tumkur-Bangalore Road. When they reached near CMTI Junction they stopped for the signal. After green signal petitioner No.1 tried to move his TVS Moped slowly, at that time a lorry, bearing Regn.No.TN-58-M-1661 came with high speed in rash and negligent manner dashed to the TVS Moped. As a result both rider and pillion rider were fallen down. The deceased fell down in front of the Offending Lorry. The rear wheel of the lorry ran over on the head of the deceased. As such she died on the spot, her body was shifted to M.S.Ramaiah Hospital, after postmortem petitioners being husband, parents and brother were cremated the dead body as per their customs. The petitioners contend that the deceased running the provision stores in the name and style as Maruti Provision Stores at Nagavara, Bangalore. She used to earn Rs.10,000/- per month. The petitioners are entirely depending upon the income of the deceased. The accident SCH 17 4 M.V.C.No.2638/14 caused by the negligence of the driver of the lorry, which is owned by respondent No.2 and insured with respondent No.1. Hence both the respondents are liable to pay compensation to the petitioners. Accordingly they filed the petition.
3. On the contrary respondent No.1 filed written statement by denying the contention of the petitioners. Apart from denial this respondent contends that, the petitioners are not relating to the deceased. Petitioner No.2 to 4 are the parents and brother of the deceased are not necessary party to the proceeding. Further they contend that they have issued policy to the lorry, which is in force, if any liability on them it is subject to the terms and conditions of the policy and as per the documents. Further contend that the driver of the lorry was not holding valid and effective driving licence at the time of accident. Hence they are not liable to indemnify the liability of owner. The petitioners not impleaded the owner and insurer of the TVs moped. Hence petition is bad for non-joinder of necessary parties. Further they SCH 17 5 M.V.C.No.2638/14 contend that their lorry is falsely impleaded in the alleged accident. As per the Police documents petitioner No.1 was riding the TVS Moped was not holding driving licence. Hence by colluding the Police they have filed the false case against their insured vehicle. Further they contend that owner of the vehicle and the Police have not furnished them necessary documents. Hence they prayed to reject the claim petition filed against them.
Respondent No.2 owner of the lorry remained absent he was placed exparte.
4. On the basis of above facts, the following issues have been framed:
ISSUES
1. Whether the petitioners prove that on 02.06.2014 at about 10.40 a.m. the deceased was proceeding as a pillion rider on TVS Moped, near CMTI Junction, Tumkur Road, Bangalore. At that time, a Lorry bearing Reg. No.TN-58-
M-1661 came with high speed in a rash and negligent manner dashed to the TVS of petitioner No1. As a result of which, she fell down rear wheel of the lorry run over on SCH 17 6 M.V.C.No.2638/14 the head of the deceased. As such she succumbed to the said injuries?
2. Whether the petitioners are entitled for compensation? If so, at what rate and from whom?
3. What order or decree?
5. In order to prove their case, petitioner No.2 examined as P.w.1 and got marked 12 documents as Ex.P1 to Ex.P.12 and closed their side.
On the contrary respondent No.1 examined the Official of RTO Office as RW.1 and got marked 1 document as Ex.R1 and closed their side.
6. Heard the arguments on both sides and relied on the citation produced by both sides.
7. My findings on the above issues are as follows;
Issue No.1: In the affirmative.
Issue No.2: Partly affirmative.
Issue No.3: As per final order
for the following
SCH 17 7 M.V.C.No.2638/14
R E A S O N S
8. ISSUE NO.1
On perusal of pleadings, evidence and documents it shows that the petitioner in order to prove their case examined one of the petitioners as PW.1 and got marked several documents. On perusal of the said documents Ex.P1 - F.I.R, Ex.P2- complaint, which shows that Hanume Gowda S/o. Nanajappa i.e., petitioner No.1 filed complaint on 02.06.2014, stating that when he was proceeding along with his wife and one child of their relative on TVS Moped, At the Junction, the Tanker Lorry dashed to his moped. As a result he along with one of his relative child fell on the left side and deceased pillion rider fallen on the right side, the lorry run over on her. Immediately he shifted his wife along with public to M.S.Ramaiah Hospital, who told him that she succumbed to the injuries on the way. Ex.P3- sketch map, Ex.P4-panchanama, SCH 17 8 M.V.C.No.2638/14 Ex.P5- Motor Vehicle Accident Report, Ex.P6- P.M report, Ex.P7- inquest panchanama, Ex.P8- charge sheet, Ex.P9 - Voter Identity Card of the deceased, Ex.P10- Voter Identity Card of the petitioner No.1, Ex.P11- Voter Identity Card of petitioner No.2, Ex.P12 - Voter Identity card of petitioner No.3.
From these documents, it shows that petitioner No.1 is the complainant, who has filed the complaint stating that the alleged accident caused by the negligence of driver tanker lorry. From these documents, it shows that the deceased died because of the accidental injuries. The respondent No.1 though denied the contention of petitioners, not produced any evidence to disprove the evidence of petitioner. Even on perusal of the cross- examination of PW.1 nothing has been elicited to disbelieve the version of the petitioners.
On perusal of the evidence of Rw.1, who is Official of RTO Office stated that the driver of the lorry was holding driving SCH 17 9 M.V.C.No.2638/14 licence at the time of accident, he produced the DL extract. According to him the driver is not authorised to drive the vehicle, which carries harzardous substance. In the cross-examination denied the contention of the petitioner. So from the evidence of RW.1 it shows that the respondent taking contention with respect to driver not holding valid and effective driving licence at the time of accident. Hence from all these aspects, it shows that the petitioners establish that the deceased died in a Motor Vehicle Accident. Accordingly, I answer issue No.1 in the affirmative.
9. ISSUE NO.2:
The petitioners contend that the deceased is the wife of petitioner No.1, daughter of petitioner No.2 and 3. Petitioner No.4 is the brother of deceased. But looking to the contention of petitioner, the brother of the deceased is major and he is not depending upon the income of the deceased. Hence he is not entitled for compensation for the loss of dependency. But the SCH 17 10 M.V.C.No.2638/14 petitioner No.2 and 3 being parents and petitioner No.1 husband are entitled for compensation.
On that basis they are entitled for compensation on the following heads:
a) LOSS OF DEPENDENCY:- The petitioner contend that the deceased running a provision stores and earning Rs.10,000/-
p.m. But there are no documents to support their contention. In the absence of documents naturally we have to consider the income of the deceased on notional basis. Since the accident is of the year 2014 and the age of the deceased is 32 years. Further the petitioner No.1 being the husband of the deceased was aged 65 years. Similarly other claimants are parents are also aged. Then naturally income is to be considered on notional basis for Rs.5,000/- per month.
As per recent Judgment of Hon'ble Supreme Court reported in 2013 ACJ 1403 SC Rajesh and others V/s. Rajbir SCH 17 11 M.V.C.No.2638/14 Singh and others, in case of fatal accident- "Principles of assessment- future prospects - whether formula for increase of income for future prospects adopted for persons with permanent jobs in Sarla Verma's case 2009 ACJ 1298 (SC) may also be applied to persons who were self employed or were engaged on fixed wages. Held; Yes; 50 percent of actual income ( after deduction of tax) for persons below 40 years; 30 percent for age group of 40 t 50 years; 15 percent for age group of 50 to 60 years; but no addition thereafter"
At the time of accident the deceased was aged 32 years. Hence, 50% of the income is to be considered as future income. The appropriate multiplier applicable is '16'. Hence, 50% of Rs.5,000/- comes to Rs.2,500/-. Totally it comes to Rs.5,000 + Rs.2,500/- = Rs.7,500/-.
The number of dependants are 3. As per decision of Sarla Verma case 1/3rd is to be deducted towards personal expenses.
SCH 17 12 M.V.C.No.2638/14 Hence, 1/3rd of Rs.7,500/- is Rs.2,500/-. The income considerable is Rs.7,500-Rs.2,500= 5,000/- p.m and the annual income comes to Rs.60,000/-. If Rs.60,000/- is multiplied by 16 it comes to Rs.9,60,000/-. It becomes the loss of dependency. Accordingly, the petitioners are entitled compensation for Rs.9,60,000/- towards loss of dependency.
b) Loss of Consortium: petitioner No.1 being the wife of the deceased, who lost his wife. As per the recent decision of the Hon'ble Apex Court, consortium is to be considered to the extent of Rs.1,00,000/-. Hence he is entitled for Rs.1,00,000/- towards consortium.
c) & d) Similarly for funeral and transportation, the petitioners are entitled for compensation of Rs.25,000/-. They also entitled Rs.10,000/- each towards love and affection i.e. Rs.30,000/-.
SCH 17 13 M.V.C.No.2638/14 Thus, the petitioners are entitled for compensation under the following heads:
a) Towards loss of dependency Rs. 9,60,000/-
b) Towards loss of consortium Rs. 1,00,000/-
c) Towards loss of love and affection Rs. 30,000/-
d) Towards funeral expenses Rs. 25,000/-
Total Rs. 11,15,000/-
14. LIABILITY;
The petitioners contend that the accident caused by the negligence of driver of Tanker lorry. It is owned by Respondent No.1 and insured with respondent No.2. Hence both are liable to pay compensation to the petitioner.
Petitioner relied on the decision reported in ILR 2014 Karnataka 2592 in case of (Renu and another v/s The Oriental Insurance Co. Ltd., and another), wherein it is held as under:
"Motor Vehicles Act, 1988, Section 173(1) - Accident claim - Judgment and Award - Tribunal fastening liability on the owner of SCH 17 14 M.V.C.No.2638/14 the vehicle and absolving the Insurer to pay the compensation - Appeal against by the claimants - Finding of the Tribunal that the driver did not possessing valid and effective driving licence to drive the vehicle and there was no endorsement authorising the driver to drive hazardous vehicle."
From this Principle it shows that it the driver driving the tanker containing the hazardous substances then he must require the special endorsement. But in the present the vehicle involved in the accident is the tanker. It is not mentioned in the records to show that what material the tanker contains. In the absence of evidence to show that the tanker contains the hazardous substances then it is not proper to hold that the driver was not holding valid and effective driving licence.
The respondent inorder to substantiate their contention examined the official of RTO office Rasipura Tamilnadu. Who deposed that the driver required special licence to drive the SCH 17 15 M.V.C.No.2638/14 tanker, in the cross examination states that skill required to drive both hazardous and goods vehicle are one and the same. The endorsement for hazardous vehicle is with respect to driver has to take precautionary care. Hence from this aspect it shows that the deceased is traveling on the moped to which the tanker dashed. Hence considering all these it shows that the respondent could not taken shelter by taking contention that the driver was not holding valid and effective driving licence. Hence with due respect to the citation I am of the opinion that it is not applicable to the case of respondent but it is applicable to the petitioner. Hence The respondent No.2 is liable to pay compensation to the petitioner. Being the insurance company Respondent No.1 is liable to indemnify the liability of owner. Accordingly, Issue No.2 is answered.
15. Issue No.3: In view of my findings on issue nos.1 & 2, petition is entitled to be dismissed against the respondents.
Hence, I proceed to pass the following;
SCH 17 16 M.V.C.No.2638/14
Order
The petition is hereby allowed in part with cost against the respondents.
The petitioners are entitled for compensation of Rs. 11,15,000/ ( Rs. Eleven Lakh Fifteen Thousand Only) with interest @ 6%p.a. from the date of the petition till its realisation.
The respondents 1 and 2 are liable to pay compensation to the petitioners. Since the insurance company is liable to indemnify the liability of owner. Hence Respondent No.1 insurance company is directed to deposit the aforesaid compensation amount within 30 days from the date of this judgment.
Out of the award amount Petitioner No.1 is entitled for compensation to the extent of 50% and petitioner No. 2 and 3 are entitled compensation to the extent of 25% each.
In the event of deposit, 50% of the amount shall be kept in fixed deposit in any nationalised or schedule bank for a period of 3 SCH 17 17 M.V.C.No.2638/14 years without any encumbrance and remaining 50% shall be released in favour of petitioners nos. 1 to 3.
Advocate's fee is fixed at Rs.500/-.
Draw Award accordingly.
(Dictated to the Stenographer, transcribed by her corrected by me and then pronounced in the Open court, this the 22nd day of April, 2015) (S.R.DINDALKOPP) XIX ADDL.SCJ. & MACT:
BANGALORE.
A N N E X U R E LIST OF WITNESSES & DOCUMENTS EXAMINED & MARKED ON BEHALF OF THE PETITIONERS & RESPONDENTS:
FOR PETITIONER:
Pw.1: K.N.Hanumegowda DOCUMENTS:
Ex.P.1 FIR of Yeshwanthapura Traffic PS Crime No.98/2014
Ex.P.2 Complaint
Ex.P.3 Sketch map
SCH 17 18 M.V.C.No.2638/14
Ex.P.4 Panchanama
Ex.P.5 Motor Vehicle Accident Report
Ex.P.6 PM Report
Ex.P.7 Inquest Panchanama
Ex.P.8 Charge sheet
Ex.P.9 Copy of voter ID card of deceased Mamatha
Ex.P.10 Copy of voter ID card of petitioner No-1
Ex.P.11 Copy of voter ID card of petitioner No-2
Ex.P.12 Copy of voter ID card of mother of the deceased
FOR RESPONDENTS:
R.w.1: Mani Mozhi
DOCUMENTS:
Ex.R.1: DL Extract
(S. R.DINDALKOPP)
XIX ADDL.SCJ. & MACT:
BANGALORE.