Bangalore District Court
D.T. Mahesh vs ) The Oriental Insurance on 17 April, 2015
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES AT BENGALURU
(SCCH:15)
DATED: THIS THE 17th DAY OF APRIL, 2015
PRESENT : Smt. K.KATYAYINI,
XIII Addl.Small Cause Judge
& Member MACT, Bengaluru.
MVC No.5325/2007 to 5328/2007
Petitioner/s D.T. Mahesh
In MVC.5325/2007 S/o Thimmegowda,
Aged about 26 years,
R/at C/o Subramanyam,
No.2054, 8th Main,
E Block, Rajajinagar 2nd Stage,
Near Ambabhavani Temple,
Bengaluru-560 010.
Petitioner/s 1) K. Venkatesh
In MVC.5326/2007 S/o Kullappa,
Aged about 52 years,
2) Varalakshmi,
W/o K. Venkatesh,
Aged about 48 years,
3) Pushpalatha,
D/o K. Venkatesh,
Aged about 23 years,
4) Shilpa,
D/o K. Venkatesh,
Aged about 19 years,
All are R/at: No.268/A,
M.G. Railway Quarters,
(SCCH-15) 2 MVC.5325/2007 to 5328/2007
Near Power House,
Magadi Road,
Bengaluru - 22.
Petitioner/s 1) Rajanaik
In MVC.5327/2007 S/o Dhavajanaik (Late),
Aged about 55 years,
2) Laxibai,
W/o Rajanaik,
Aged about 50 years,
Both are R/at:
N. Devanahalli Village,
N. Mahadevapura Post,
Nayakanahatti Hobli,
Challakere Taluk,
Chitradurga District.
Petitioner/s 1) M. Lakshmana
In MVC.5328/2007 S/o Late Muthyalappa,
Aged about 50 years,
2) Narasamma,
W/o M. Lakshmana,
Aged about 45 years,
3) Lokesh,
S/o Lakshmana .M,
Aged about 21 years,
4) Komala,
D/o M. Lakshmana,
Aged about 18 years,
All are R/at: No.269/E,
M.G. Railway Colony,
Near Power House,
Magadi Road,
Bengaluru-560 023.
(SCCH-15) 3 MVC.5325/2007 to 5328/2007
(By Pleader - Sri.Mahesh
Shetty.)
V/s
Respondent/s 1) The Oriental Insurance
In all the cases Company Ltd.,
No.45/45, Leo Shopping Complex,
Residency Cross Road,
M.G. Road,
Regional Office,
Bengaluru-560 001.
(Policy issued in its Branch Office
at BO Metagalli, No.4/12,
Naveen Complex, 1st floor,
Hebbal Main Road,
Metagalli, Mysore -16.
(Policy No.422805/31/2007/3605
valid from 11.12.2006 to
10.12.2007)
(By Pleader - Sri.M.P.Srikanth.)
2) Smt.N.Anitha,
W/o Devegowda,
Near Rama Mandira,
Goravanahalli Village & Post,
Maddur Taluk,
Mandya District.
(By Pleader - Sri.V.S.Prasad.)
*****
COMMON JUDGMENT
Petitioners have filed all these petitions seeking
compensation an account of injuries suffered by
(SCCH-15) 4 MVC.5325/2007 to 5328/2007
petitioner in MVC.5325/2007 under Section 166 of MV
Act and rest of the petitioners seeking compensation an
account of death of Sri. K.V.Jagadeesh the son of 1 st and
2nd petitioner and brother of rest of the petitioners in
MVC.5326/2007, an account of death of Sri. Ramesh @
Rameshnaik S/o Rajanaik son of 1 st and 2nd petitioner in
MVC.5327/2007 and an account of death of Sri.
Manjunath S/o M. Lakshmana son of 1 st and 2nd
petitioner and brother of rest of the petitioners in road
traffic accident under Section 163(A) of MV Act.
2. Initially these petitions were assigned to the
Hon'ble SCCH-10. Subsequently, as per Notification
No.ADMI/419/14 dated 06.05.2014, they are reassigned
to this Tribunal for disposal in accordance with law.
3. The brief facts of the case of petitioners in all
the petitions are that on 06.07.2007 at about 10:45
a.m., petitioner in MVC.5325/2007 and the deceased in
rest of the petitioners were proceeding as loaders in
Tata Mobile bearing registration No.KA-11-7334 along
with the goods on Kanakapura Road. When they
(SCCH-15) 5 MVC.5325/2007 to 5328/2007
reached near Devika Rani Estate, Tathaguni, the driver
of Tata Mobile drove the same in rash and negligent
manner with high speed. Lost control over the vehicle
and dashed against motor bike.
b) Because of which it turtled down on the road
and dragged to some distance. Due to the impact,
petitioner in MVC.5325/2007 has suffered grievous
injuries and deceased in rest of the petitions suffered
severe injuries. Deceased in MVC.5326/2007 and
MVC.5328/2007 were dead at the spot itself and the
deceased MVC.5327/2007 died while on the way to
hospital.
c) Accident took place solely due to the rash and
negligent driving of Tata Mobile vehicle driver.
Therefore, 2nd respondent being the RC owner and 1 st
respondent being the insurer are jointly and severally
liable to pay the compensation. Hence, prayed to allow
all the petitions as sought for.
4. In response to the due service of notices, both
the respondents have put their appearance through
(SCCH-15) 6 MVC.5325/2007 to 5328/2007
their respective counsels and filed their separate
statement of objections to the main petitions denying
the petition averments. 2nd respondent has admitted
her ownership over the Tata Mobile vehicle and
contended that the vehicle was duly insured with 1 st
respondent and the vehicle driver had valid and
effective driving licence. Therefore, she is not liable to
pay the compensation.
b) She has also contended that the motor cycle
rider unmindfully all of a sudden came across the road.
Because of which Tata Mobile driver could not control
the vehicle despite of application of breaks. Therefore,
accident if any is only due to the rash and negligent
riding of the two wheeler and there is no fault on the
part of Tata Mobile vehicle driver. Despite of that since
it is a big vehicle when compared to motor cycle, as
routine the criminal case is registered against the big
vehicle i.e. Tata Mobile vehicle. Therefore, prayed to
dismiss the petition against her with costs.
(SCCH-15) 7 MVC.5325/2007 to 5328/2007
c) 1st respondent has admitted the policy and its
force on the date of accident but has contended that its
liability is subject to the terms and conditions of the
policy such as driving licence and vehicular documents.
It has specifically contended that the Tata Mobile
vehicle driver did not possess valid and effective
driving licence and the vehicle had also no valid permit.
Therefore, there is breach of policy conditions.
d) It has also contended that as per the policy
terms, premium is paid only to the owner/driver and
extra premium of only Rs.25/- is collected as legal
liability to Cleaner. Therefore, the policy does not cover
the risk of other employees. Moreover, the injured and
the deceased were traveling in Tata Mobile vehicle as
gratuitous passengers and not as loaders. Therefore,
the policy does not cover their risk because of non
payment of NFPP. Hence, prayed to dismiss the petition
against it with costs.
(SCCH-15) 8 MVC.5325/2007 to 5328/2007
5. On the above said pleadings of the parties, my
learned predecessor in office i.e. the then presiding
officer was pleased to frame the following issues.
ISSUE No.1 in 5325/2007
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ISSUE No.1 in 5326/2007
(SCCH-15) 9 MVC.5325/2007 to 5328/2007
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ISSUE No.1 in 5327/2007
(SCCH-15) 10 MVC.5325/2007 to 5328/2007
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ISSUE No.1 in 5328/2007
(SCCH-15) 11 MVC.5325/2007 to 5328/2007
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ISSUES Nos.2 & 3 IN ALL THE PETITIONS
CfðzÁgÀgÀÄ ¥ÀjºÁgÀzÀ ºÀtPÉÌ
CºÀðgÉÃ? AiÀiÁjAzÀ? JµÀÄÖ ºÀt
gÀÆ¥Á¬Ä?
K£ÀÄ DzÉñÀ?
6. To prove the above said issues and to
substantiate their respective contentions, petitioner in
MVC.5325/2007, 1st petitioners in MVC.5326/2007 and
in MVC.5327/2007 as well as 2nd petitioner in
(SCCH-15) 12 MVC.5325/2007 to 5328/2007
MVC.5328/2007 themselves have entered into witness
box respectively as PWs-1 to 4; the doctor who has
assessed the disability of petitioner in MVC.5325/2007
has entered into witness box as PW-5. Totally they have
got exhibited 29 documents and closed their side. Per
contra, 1st respondent got examined its Administrative
Officer as RW-1. Got exhibited 1 document and closed
its side.
7. After hearing both the sides on merits of the
case my learned Predecessor in office was pleased to
allow all these petitions through his common judgment
dated 01.09.2008 allowing all these petitions in part
saddling the liability on 1st respondent.
8. Being aggrieved by the said judgment both the
petitioners as well as the insurance company/1 st
respondent went in appeal in MFA.2048 c/w 1346,
1347, 2047, 1345, 2046 and 2045/2009. After hearing
both the sides, the Hon'ble High Court of Karnataka,
Bengaluru was pleased to pass judgment dated
05.06.2014 by allowing appeals in part and set aside
(SCCH-15) 13 MVC.5325/2007 to 5328/2007
the impugned judgment on the point of liability and
quantum of compensation for reassessment.
9. After remand, despite of sufficient opportunities
petitioners have not let in any further evidence.
Therefore, after taking further evidence of petitioners
as nil, the cases are posted for defence evidence of 1 st
respondent if any. In response to which 1 st respondent
got examined its present administrative officer as RW-
2. Got exhibited 2 more documents and closed its side.
Thus 1st respondent got examined totally 2 witnesses
and got exhibited 3 documents.
b) Heard both the sides on merits of the case. In
support of his oral arguments counsel for petitioners
has filed memo along with the xerox copy of decision
reported in 2007 AIR SCW 5237. This Tribunal has
carefully gone through the said decision and perused
the record.
10. On plain reading of the aforesaid appeal order
it is clear that these petitions are remanded back for
fresh consideration only with regard to the liability and
(SCCH-15) 14 MVC.5325/2007 to 5328/2007
re-assessment for quantum of compensation.
Therefore, issue No.1 remained untouched. Therefore,
now the issues remained for the due consideration of
this Tribunal are only issues Nos.2 and 3 and they are
answered in the;
1. Issue No.2:
a) In MVC.5325/2007, petitioner is
entitled for the total compensation amount
of Rs.3,38,000/- out of which he is
entitled to recover Rs.2,73,710/- from 1st
respondent and Rs.64,290/- from 3rd
respondent together with interest at 8%
p.a. from the date of petition till the
realization in its entirety.
b) In MVC.5326/2007, petitioners
are entitled for total compensation of
Rs.5,39,000/- at the rate of 25:35:20:20
out of which they are entitled to recover
Rs.4,36,478/- from 1st respondent and
Rs.1,02,522/- from 3rd respondent
together with interest at 8% p.a. from the
date of petition till the realization in its
entirety.
c) In MVC.5327/2007, petitioners
are entitled for total compensation amount
of Rs.3,61,000/- at the rate of 40:60 out
of which they are entitled to recover
Rs.2,92,334/- from 1st respondent and
Rs.68,666/- from 3rd respondent together
with interest at 8% p.a. from the date of
petition till the realization in its entirety.
(SCCH-15) 15 MVC.5325/2007 to 5328/2007
d) In MVC.5328/2007, petitioners
are entitled for total compensation amount
of Rs.5,39,000/- at the rate of
30:35:15:20 out of which they are entitled
to recover Rs.4,36,478/- from 1st
respondent and Rs.1,02,522/- from 3rd
respondent together with interest at 8%
p.a. from the date of petition till the
realization in its entirety.
2. Issue No.3: As per final order for the
following reasons.
REASONS
11. Issue No.2 in all the petitions:- In
MVC.5325/2007, it is the case of petitioner that he
was aged about 26 years; was a Sales Man in Smart
Choice Packaging Water Distribution Company,
Bengaluru and had salary of Rs.6,000/- p.m. To
establish that, petitioner with his oral evidence has not
produced any specific age proof document.
12. However, in the charge sheet his age is shown
as 26 years and his avocation is stated as working in
smart choice packaging water distribution company. In
the medical records his age is shown as 25 years. There
is no cross-examination by the other side about the age
(SCCH-15) 16 MVC.5325/2007 to 5328/2007
and avocation mentioned in the charge sheet as well as
in the medical records.
13. On the other hand, in his cross-examination
also petitioner has specifically deposed that he was
working at smart choice packaging water distribution
company since 2 years. It is suggested that there is ESI
facility in their company. The said suggestion is denied
by petitioner. However, the suggestion indicates that
the avocation of petitioner is not disputed.
14. Accordingly, the age of the petitioner is taken
as 26 years, for which proper multiplier applicable is 17.
Since petitioner has not produced any specific
supportive evidence with regard to the quantum of
income, considering the cost of living on the date of
accident, the age and avocation of petitioner, it is
thought just and proper to take notional income at
Rs.4,500/- p.m.
15. It is the case of the petitioner that in the
accident he has suffered L1 wedge compression
fracture, fracture of right medial malleolous, left
(SCCH-15) 17 MVC.5325/2007 to 5328/2007
temporal subarachnoid haemrahage and laceration
over back of right hand exposing the ruptured tendons.
He took treatment in Kaveri Nursing Home and Manipal
North Side Hospital, Bengaluru. He has incurred
expenditure of Rs.70,000/- towards medical expenses.
16. It is also his case that he became permanently
disabled because of accidental injuries. Petitioner has
reiterated the above observed petition averments in his
affidavit evidence. During his cross-examination his
chief evidence is denied by way of suggestions which
are in turn denied by him.
17. PW-5 the doctor has filed his affidavit evidence
wherein he has stated that petitioner was brought to
their hospital with a history of RTA dated 06.07.2007
and was diagnosed for fracture of L1 vertebra, fracture
of right medial malleolous, left temporal sub arachnoid
hemorrhage and laceration over back of right hand,
exposing the ruptured tendons.
18. He has also deposed that petitioner was
treated as an inpatient in the form of reduction of
(SCCH-15) 18 MVC.5325/2007 to 5328/2007
fracture and internal fixation for malleolous with K-wire
on 07.07.2007. On 10.07.2007, petitioner was treated
in the form of wound debridement and tendon repair
was done for right middle and index finger. Petitioner
was treated conservatively for fracture of vertebra and
was discharged on 14.07.2007. Petitioner was on follow
up.
19. He has also deposed that he has examined the
petitioner on 05.04.2008 for assessment of disability.
On clinical examination, it is found that petitioner has
got scar over right hand which is tender and petitioner
is having constant pain in right hand; there is loss of
grip strength and thereby petitioner is having
permanent physical impairment to the hand at 20%; to
the right leg at 30% and to the neck at 10%. Thus,
petitioner is totally having permanent physical
impairment at 22% to the whole body. During his cross-
examination his chief evidence is denied by way of
suggestions which are in turn denied by him.
(SCCH-15) 19 MVC.5325/2007 to 5328/2007
20. In support of his case petitioner has produced
medical records at Ex.P-5 and 7 respectively the wound
certificate and discharge summary of Manipal Hospital,
Bengaluru which reveal injuries observed above and
also reveals that petitioner admitted to their hospital on
06.07.2007 and was discharged on 14.07.2007, in the
meanwhile he was treated conservatively for right
medial malleolous and surgically for L1 vertebra
fracture. Ex.P-26 is the inpatient file is in consonance
with the contents at Ex.P-5 and 7 and thereby the oral
evidence of PW-5 observed above.
21. To prove the medical expenditure, petitioner
with his oral evidence has produced Ex.P-9, the hospital
and medical bills totally 16 in nos. amounting to
Rs.58,091.39. There is no mention of corporate bill in
the detailed inpatient bill at Sl.No.1 of Ex.P-9 series for
Rs.43,489/-. The bill at Sl.No.2 is the inpatient
bill/receipt at Rs.1,700/-.
22. The bill at Sl.Nos.3 to 8 and 10 to 12 are the
credit bills; Sl.No.9 is the cash receipt; Sl.No.13 is the x-
(SCCH-15) 20 MVC.5325/2007 to 5328/2007
ray bill; Sl.No.15 is the private medical stores bill;
Sl.No.14 is the doctor consultation bill and the bill at
Sl.No.16 is the bill of kavery nursing home. All those
bills are in the name of petitioner.
23. Moreover, in view of nature of injuries suffered
by petitioner, inpatient period and the surgeries he has
undergone are taken into consideration there is nothing
on record to disbelieve the medical expenditure at Ex.P-
9 series. On the other hand, it appears that he has
incurred expenses more than of Ex.P-9. Hence, it is
thought just and proper to award medical expenses at
Rs.60,000/- including the bills at Ex.P-9 series.
24. It is the evidence of PW-5 that petitioner is
having permanent physical impairment to the whole
body at 22% because of disability to the back, right leg
and the hand. Therefore, considering the nature of
injuries and the nature of avocation of petitioner, it is
thought just and proper to take the whole body
disability at 15% for assessment of loss of future
(SCCH-15) 21 MVC.5325/2007 to 5328/2007
earning capacity, loss of amenities and comforts as well
as for permanent physical impairment.
25. In the result, petitioner is entitled for
compensation under the heads mentioned below and
the amount stated against them.
Pain and Sufferings Rs. 30,000/-
Loss of Income during laid up Rs. 20,000/-
period, diet, nourishment and etc.
Attendant Charges, Conveyance, Rs. 20,000/-
and Incidental Charges
Medical Expenditure Rs. 60,000/-
Loss of Future Income
(4,500 x 12 x 15/100 x 17) Rs.1,37,700/-
Loss of Amenities and Comfort Rs. 30,000/-
For permanent physical impairment Rs. 40,000/-
Total:
Rs.3,37,700/-
rounded off to Rs.3,38,000/-
26. In MVC.5326/2007, it is the case of petitioner
that, 1st and 2nd petitioners are the parents and 3 rd and
4th petitioners are the sisters of the deceased. To
establish their relationship with the deceased,
petitioners with the oral evidence of 1 st petitioner have
produced Ex.P-15(a), the notarized copy of the ration
(SCCH-15) 22 MVC.5325/2007 to 5328/2007
card wherein the name of 1st to 4th petitioners' along
with the deceased is mentioned in the Sl.No.2 to 6.
27. On plain perusal of the ration card, it appears
that it is of joint family of the petitioners/deceased.
Moreover, the inquest mahazar of the deceased at Ex.P-
12 wherein statement of 1st petitioner is recorded,
which reveals that the deceased is the son of 1 st
petitioner who had three children i.e. the deceased, 3 rd
and 4th petitioners.
28. In addition in the inquest mahazar at Ex.P-12,
there is statement of 1 st petitioner in which he has
stated that the deceased is his only son and he has two
daughters by name Pushpalatha and Shilpa i.e. 3 rd and
4th petitioners.
29. Moreover, there is no cross-examination by the
other side with regard to the relationship of the
petitioners with the deceased. On the other hand, it is
elicited in the cross-examination of 1 st petitioner that
his son the deceased was working in water package
company.
(SCCH-15) 23 MVC.5325/2007 to 5328/2007
30. Therefore, there is nothing on record to
disbelieve the case of petitioners with regard to their
relationship with the deceased. Therefore, petitioners
being the legal heirs of the deceased are of course
entitled to file the present claim petition seeking
compensation an account of death of the deceased in
RTA.
31. In view of issue No.1 which is answered in
affirmative by my learned predecessor in earlier
judgment which remained untouched, petitioners are of
course entitled for compensation. Now in respect of
quantum. Admittedly, the present petition is filed under
section 163(a) of MV Act. Therefore, this Tribunal is
required to award compensation as per the Schedule II
of the Act.
32. It is the case of petitioners that the deceased
was aged 22 years, was a loader and had salary of
Rs.3,000/- and Rs.300/- as bata, totally Rs.3,300/- p.m.
To establish that petitioners with the oral evidence of
1st petitioner have produced the notarised copy of
(SCCH-15) 24 MVC.5325/2007 to 5328/2007
Voter's ID of the deceased at Ex.P-13 wherein his age is
shown as 19 years as on 01.01.2005. Accident took
place during 2007. Therefore, on the date of accident
the deceased was aged more than 21 years as per
Ex.P-13.
33. In the PM report and in the inquest Mahazar at
Ex.P-11 and 12, the age of the deceased is shown as 22
years. There is no cross-examination by the other side
about the age of the deceased mentioned in those
documents. Accordingly, the age of the deceased is
taken as 22 years, for which proper multiplier
applicable is 18.
34. To establish the avocation of the deceased,
petitioners have not produced any document. However,
it is in the police papers that the deceased was working
in a water package company and at the time of
accident he was proceeding as loader in the lorry.
There is nothing on record let in by 1 st respondent to
rebut the police papers. Therefore, the avocation of the
deceased is accepted.
(SCCH-15) 25 MVC.5325/2007 to 5328/2007
35. So far the quantum of income of the deceased,
petitioners has not produced any cogent evidence.
However if the cost of living on the date of accident and
the age of the deceased as well as his educational
qualification as per Ex.P-14 which is certificate of
Computer Basics are taken note of, there is nothing to
discard the case of petitioners with regard to the
quantum of income of the deceased. Hence, the income
of the deceased is accepted as pleaded.
36. It is the case of petitioners that they were
depending on the income of the deceased. Since 1 st and
2nd petitioners are the parents, they are of course to be
considered as dependents. Since 3 rd and 4th petitioners
are unmarried sisters of the deceased, unless otherwise
it is proved it become duty of a brother to maintain his
unmarried sisters.
37. Moreover, as per the evidence available on
record, it appears that the deceased living together
with the petitioners in the joint family and the same is
supported by Ex.P-15(a). Therefore, this Tribunal can
(SCCH-15) 26 MVC.5325/2007 to 5328/2007
take judicial notice that 3rd and 4th petitioners being the
sisters of the deceased were also depending on the
income of the deceased.
38. Since deceased died leaving behind his
parents and sisters totally 4 persons, even he died
unmarried, in view of number of dependents i.e.
petitioners who are 4 in nos., 1/4 th of his income should
be deducted towards his personal expenditure.
Accordingly, petitioners are entitled for compensation
under the heads mentioned below and the amount
stated against them as per the Schedule II of the Act.
Loss of Dependency Rs.5,34,600/-
(3,300 x 12 x ¾ x 18)
Loss of Estate Rs. 2,500/-
Funeral Expenditure Rs. 2,000/-
Total: Rs.5,39,100/-
rounded off to Rs.5,39,000/-
39. In MVC.5327/2007, it is the case of petitioner
that, petitioners are the parents of the deceased. To
establish their relationship with the deceased,
petitioners with the oral evidence of 1 st petitioner have
produced Ex.P-21(a), the notarized copy of the ration
card wherein the name of petitioners along with the
(SCCH-15) 27 MVC.5325/2007 to 5328/2007
deceased and one Thippeshi appears to be the younger
brother of the deceased shown as the family members.
It is also shown there that 1 st petitioner is the head of
the family. 2nd petitioner is his wife and deceased as
well as one Thippeshi are the children of petitioners.
40. In addition in the inquest mahazar at Ex.P-17,
there is statement of 1 st petitioner in which he has
stated that he has only one daughter Manjula who is
given in marriage to his brother-in-law; he had two sons
i.e. the deceased and one Thippeshi.
41. Moreover, there is no cross-examination by the
other side with regard to the relationship of the
petitioners with the deceased. On the other hand, it is
elicited in the cross-examination of 1 st petitioner that
his son the deceased was working in water package
company.
42. Therefore, there is nothing on record to
disbelieve the case of petitioners with regard to their
relationship with the deceased. Therefore, petitioners
being the legal heirs of the deceased are of course
(SCCH-15) 28 MVC.5325/2007 to 5328/2007
entitled to file the present claim petition seeking
compensation an account of death of the deceased in
RTA. It appears that since the other son is major son, he
has not made as party to this petition.
43. In view of issue No.1 which is answered in
affirmative by my learned predecessor in earlier
judgment which remained untouched, petitioners in this
petition are of course entitled for compensation. Now
in respect of quantum. Admittedly, this petition is also
filed under section 163(a) of MV Act. Therefore, this
Tribunal is required to award compensation as per the
Schedule II of the Act.
44. It is the case of petitioners that the deceased
was aged 25 years, was a loader and had salary of
Rs.3,000/- and Rs.300/- as bata, totally Rs.3,300/- p.m.
To establish that petitioners with the oral evidence of
1st petitioner have produced the original SSLC marks
card at Ex.P-20 wherein his date of birth is shown as
13.06.1983. The date of accident is 06.07.2007. So, as
(SCCH-15) 29 MVC.5325/2007 to 5328/2007
per Ex.P-20, on the date of accident deceased was aged
about 24 years.
45. They have also produced the notarized copy of
Voter's ID of the deceased at Ex.P-18 wherein his age is
shown as 20 years as on 01.01.2002. Accident took
place during 2007. Therefore, on the date of accident
the deceased was aged more than 25 years as per
Ex.P-18.
46. In the PM report and in the inquest Mahazar at
Ex.P-16 and 17, the age of the deceased is shown as 25
years. There is no cross-examination by the other side
about the age of the deceased mentioned in those
documents. Accordingly, the age of the deceased is
taken as 24 years in view of specific date of birth
mentioned in Ex.P-20 for which proper multiplier
applicable is 18.
47. To establish the avocation of the deceased,
petitioners have not produced any document. However,
it is in the police papers that the deceased was working
in the water package company and at the time of
(SCCH-15) 30 MVC.5325/2007 to 5328/2007
accident he was proceeding as loader in the lorry.
There is nothing on record let in by 1 st respondent to
rebut the police papers. Therefore, the avocation of the
deceased is accepted.
48. So far the quantum of income of the deceased,
petitioners has not produced any cogent evidence.
However if the cost of living on the date of accident and
the age of the deceased as well as his educational
qualification as per as per Ex.P-20 and 19, which are
respectively the SSLC and I PUC marks cards are taken
note of, there is nothing to discard the case of
petitioners with regard to the quantum of income of the
deceased. Hence, the income of the deceased is
accepted as pleaded.
49. It is the case of petitioners that they were
depending on the income of the deceased. Since
petitioners are the parents, they are of course to be
considered as dependents unless otherwise it is proved
that they have had their own independent income and
(SCCH-15) 31 MVC.5325/2007 to 5328/2007
never depended on the deceased. But there is no such
evidence on record.
50. Since deceased died leaving behind his
parents unmarried, ½ of his income should be deducted
towards his personal expenditure. Accordingly,
petitioners are entitled for compensation under the
heads mentioned below and the amount stated against
them as per the Schedule II of the Act.
Loss of Dependency Rs.3,56,400/-
(3,300 x 12 x ½ x 18)
Loss of Estate Rs. 2,500/-
Funeral Expenditure Rs. 2,000/-
Total: Rs. 3,60,900/-
rounded off to Rs.3,61,000/-
51. In MVC.5326/2007, it is the case of
petitioners that, 1st and 2nd petitioners are the parents;
3rd petitioner is the younger brother and 4th petitioner is
the younger sister of the deceased. To establish their
relationship with the deceased, petitioners with the oral
evidence of 2nd petitioner have produced Ex.P-25(a),
the notarized copy of the ration card wherein the name
of petitioners along with the deceased shown as the
family members. It is also shown there that 1 st
(SCCH-15) 32 MVC.5325/2007 to 5328/2007
petitioner is the head of the family. 2 nd petitioner is his
wife; deceased and rest of the petitioners are the
children of 1st and 2nd petitioners.
52. In addition in the inquest mahazar at Ex.P-23,
there is statement of 1 st petitioner in which he has
stated that the deceased is his elder son; he has two
sons including the deceased and a daughter; none of
them are married.
53. Moreover, there is no cross-examination by
the other side with regard to the relationship of the
petitioners with the deceased. On the other hand, it is
elicited in the cross-examination of 2 nd petitioner that
his son the deceased was working in water package
company.
54. Therefore, there is nothing on record to
disbelieve the case of petitioners with regard to their
relationship with the deceased. Therefore, petitioners
being the legal heirs of the deceased are of course
entitled to file the present claim petition seeking
(SCCH-15) 33 MVC.5325/2007 to 5328/2007
compensation an account of death of the deceased in
RTA.
55. In view of issue No.1 which is answered in
affirmative by my learned predecessor in earlier
judgment which remained untouched, petitioners are of
course entitled for compensation. Now in respect of
quantum. Admittedly, the present petition is filed under
section 163(a) of MV Act. Therefore, this Tribunal is
required to award compensation as per the Schedule II
of the Act.
56. It is the case of petitioners that the deceased
was aged 23 years, was a loader and had salary of
Rs.3,000/- and Rs.300/- as bata, totally Rs.3,300/- p.m.
To establish that petitioners with the oral evidence of
2nd petitioner have produced the notarized copy of
Voter's ID of the deceased at Ex.P-24 wherein his age is
shown as 21 years as on 01.01.2005. Accident took
place during 2007. Therefore, on the date of accident
the deceased was aged more than 23 years as per
Ex.P-24.
(SCCH-15) 34 MVC.5325/2007 to 5328/2007
57. In the PM report and in the inquest Mahazar at
Ex.P-22 and 23, the age of the deceased is shown as 23
years. There is no cross-examination by the other side
about the age of the deceased mentioned in those
documents. Accordingly, the age of the deceased is
taken as 23 years, for which proper multiplier
applicable is 18.
58. To establish the avocation of the deceased,
petitioners have not produced any document. However,
it is in the police papers that the deceased was working
in a water package company and at the time of
accident he was proceeding as loader in the lorry.
There is nothing on record let in by 1 st respondent to
rebut the police papers. Therefore, the avocation of the
deceased is accepted.
59. So far the quantum of income of the deceased,
petitioners has not produced any cogent evidence.
However if the cost of living on the date of accident and
the age of the deceased are taken note of, there is
nothing to discard the case of petitioners with regard to
(SCCH-15) 35 MVC.5325/2007 to 5328/2007
the quantum of income of the deceased. Hence, the
income of the deceased is accepted as pleaded.
60. It is the case of petitioners that they were
depending on the income of the deceased. Since 1 st and
2nd petitioners are the parents, they are of course to be
considered as dependents. Since 4th petitioner is an
unmarried younger sister of the deceased living in
common residence, it becomes the duty of a brother to
maintain his unmarried sister.
61. So, far 3rd petitioner who is admittedly a major
person, but it is on record that he younger to the
deceased and living together with the family and there
is no specific evidence on record to show that he has
had his own independent income, this Tribunal can take
judicial notice that 3rd and 4th petitioners being the
younger brother and sister respectively were also
depending on the income of the deceased.
62. Since deceased died leaving behind his
parents; bother and sister totally 4 persons, even he
died unmarried, in view of number of dependents i.e.
(SCCH-15) 36 MVC.5325/2007 to 5328/2007
petitioners who are 4 in nos., 1/4 th of his income should
be deducted towards his personal expenditure.
Accordingly, petitioners are entitled for compensation
under the heads mentioned below and the amount
stated against them as per the Schedule II of the Act.
Loss of Dependency Rs.5,34,600/-
(3,300 x 12 x ¾ x 18)
Loss of Estate Rs. 2,500/-
Funeral Expenditure Rs. 2,000/-
Total: Rs.5,39,100/-
rounded off to Rs.5,39,000/-.
63. Considering the cost of living on the date of
accident, it is thought fit to award interest @ 6% p.a.
from the date of petition till the realization of the
compensation amount in its entirety.
64. Now, in respect of liability. There is no dispute
between the parties with regard to the fact that 2 nd
respondent is the RC owner and 1 st respondent is the
insurer of Tata Mobile vehicle. 1 st respondent has
contended that its liability is subject to the terms and
conditions of the policy such as driving licence and
vehicular documents.
(SCCH-15) 37 MVC.5325/2007 to 5328/2007
65. Even, 1st respondent got examined 2 witnesses
and got exhibited 3 documents, it has concentrated
only with regard its defence that petitioner and the
deceased were gratuitous passengers in the Tata
Mobile vehicle and thereby there is no coverage of their
risk since the policy covers limited coverage i.e. it
covers only driver/owner and one cleaner and
therefore, petitioners are not entitled compensation.
66. Hence, it has not let in any evidence with regard
to the violation of policy conditions on driving licence
and vehicular documents. On the other hand, if the
evidence on record is taken note off, as per Ex.P-6 the
charge sheet, there is no allegation with regard to the
any of the offences punishable under any provisions of
MV Act.
67. Therefore, it appears that on the date of
accident Tata Mobile vehicle driver had valid and
effective driving licence and the vehicle also had valid
documents which were in order and in force. Hence, the
defence on breach of policy conditions holds no water.
(SCCH-15) 38 MVC.5325/2007 to 5328/2007
68. So far as the defence that the deceased and
petitioner were gratuitous passengers in the Tata
Mobile vehicle, it has not at all let in any independent
evidence coupled with the oral evidence of the
administrative officers at the relevant point of time of
giving evidence.
69. On the other hand, as observed above, it is in
the police papers that the petitioner and deceased were
proceeding as loaders in the Tata Mobile vehicle along
with the goods and thereby they were employees.
Accordingly, the defence of 1st respondent that they
were gratuitous passengers cannot be accepted.
Accordingly, 3rd respondent being the RC owner is liable
to pay the compensation and 1 st respondent being the
insurer is liable to indemnify the said liability.
70. But admittedly, it is in the policy at Ex.R-1 and 3
particularly Ex.R-3 that the policy covers risk of the
owner/driver and additional premium of Rs.25/- is
collected as legal liability of an employee. It is in the
(SCCH-15) 39 MVC.5325/2007 to 5328/2007
evidence of RW-2 that an additional premium of Rs.25/-
each be paid to each employee.
71. But on the plain reading of the policy, there is
no such mention. On the other hand, it is categorically
stated that, "ADD: LL to employees Rs.25/-". Therefore,
the explanation given by RW-2 that for risk coverage of
each employee additional Rs.25/- each be paid cannot
be accepted.
72. However, the seating capacity as per the policy
is 2 + 1. Therefore, the policy cannot cover the risk of
the persons more than the seating capacity. Hence, as
per the terms and conditions of the policy it covers the
risk of 3 inmates basing on the seating capacity of the
vehicle.
73. It is in the decision on which the counsel for
petitioner relied on i.e. 2007 AIR SCW 5237 that;
"(B) Motor Vehicles Act (59 of 1988), S.
147 (1)(b)(ii) - Liability of insurer - Accident of
overloaded stage carriage - Liability of
insurance company to be calculated by adding
up those number of awards of higher
compensation to the extent of number of
passengers covered by insurance - Such
(SCCH-15) 40 MVC.5325/2007 to 5328/2007
method would ensure that maximum benefit is
derived by insurance taken for the passengers.
74. It is also observed in para No.16 of the said
judgment that;
"16. Then arises the question, how to
determine the compensation payable or how
to quantify the compensation since there is no
means of ascertaining who out of the
overloaded passengers constitute the
passengers covered by the insurance policy as
permitted to be carried by the permit itself. As
this Court has indicated, the purpose of the Act
is to bring benefit to the third parties who are
either injured or dead in an accident. It serves
a social purpose. Keeping that in mind, we
think that the practical and proper course
would be to hold that the insurance company,
in such a case, would be bound to cover the
higher of the various awards and will be
compelled to deposit the higher of the
amounts of compensation awarded to the
extent of the numbers of passengers covered
by the insurance policy. Illustratively, we may
put it like this. In the case on hand, 42
passengers were the permitted passengers
and they are the ones who have been insured
by the insurance company. 90 persons have
either died or got injured in the accident.
Awards have passed for varied sums. The
Tribunal should taken into account, the higher
of the 42 awards made, add them up and
direct the insurance company to deposit that
lump sum. Thus the liability of the insurance
company would be to pay the compensation
awarded to 42 out of the 90 passengers. It is
to ensure that the maximum benefit is derived
(SCCH-15) 41 MVC.5325/2007 to 5328/2007
by the insurance taken for the passengers of
the vehicle, that we would that the 42 awards
to be satisfied by the insurance company
would be the 42 awards in the descending
order starting from the highest of the awards.
In other words, the higher of the 42 awards
that would be the amount that the insurance
company would be liable to deposit. It will be
for the Tribunal thereafter to direct distribution
of the money so deposited by the insurance
company proportionately to all the claimants,
here all the 90, and leave all the claimants to
recover the balance from the owner of the
vehicle. In such cases......"
75. In the light of the above decision, if the present
petitions are taken note off, the highest compensation
awarded amongst these petitions are in
MVC.5326/2007, MVC.5327/2007 and MVC.5328/2007
i.e. Rs.5,39,000/-, Rs.3,61,000/- and Rs.5,39,000/-
totally of Rs.14,39,000/-.
76. If the said total sum of Rs.14,39,000/-
distributed to petitioners in all these four claims
proportionately it comes to (compensation awarded i.e.
Rs.3,38,000/- divided by the total sum of all the awards
Rs.17,77,000 and multiplied by the total sum of highest
awards Rs.14,39,000 equal to the proportionate sum of
(SCCH-15) 42 MVC.5325/2007 to 5328/2007
Rs.2,73,709.62 rounded off to) Rs.2,73,710/- in
MVC.5325/2007.
b) In MVC.5326/2007, (Rs.5,39,000/- divided by
Rs.17,77,000/- multiplied by Rs.14,39,000/- equal to
Rs.4,36,477.77 rounded of to) Rs.4,36,478/-.
c) In MVC.5327/2007 (Rs.3,61,000/- divided by
Rs.17,77,000/- multiplied by Rs.14,39,000/- equal to
Rs.2,92,334.83 rounded of to) Rs.2,92,334/-.
d) In MVC.5328/2007 (Rs.5,39,000/- divided by
Rs.17,77,000/- multiplied by Rs.14,39,000/- equal to
Rs.4,36,477.77 rounded of to) Rs.4,36,478/-.
77. Considering the age of petitioners and their
relationship with the deceased in MVC.5326/2007,
MVC.5327/2007 and MVC.5328/2007, it is thought just
and proper to apportion the compensation amount
amongst them at rate of 25:35:20:20, 40:60 and
30:35:15:20.
78. Therefore, In MVC.5325/2007, petitioner is
entitled for the total compensation amount of
Rs.3,38,000/- out of which he is entitled to recover
(SCCH-15) 43 MVC.5325/2007 to 5328/2007
Rs.2,73,710/- from 1st respondent and Rs.64,290/-
from 3rd respondent together with interest at 8% p.a.
from the date of petition till the realization in its
entirety.
b) In MVC.5326/2007, petitioners are entitled for
total compensation of Rs.5,39,000/- at the rate of
25:35:20:20 out of which they are entitled to recover
Rs.4,36,478/- from 1st respondent and Rs.1,02,522/-
from 3rd respondent together with interest at 8% p.a.
from the date of petition till the realization in its
entirety.
c) In MVC.5327/2007, petitioners are entitled for
total compensation amount of Rs.3,61,000/- at the
rate of 40:60 out of which they are entitled to recover
Rs.2,92,334/- from 1st respondent and Rs.68,666/-
from 3rd respondent together with interest at 8% p.a.
from the date of petition till the realization in its
entirety.
d) In MVC.5328/2007, petitioners are entitled for
total compensation amount of Rs.5,39,000/- at the
(SCCH-15) 44 MVC.5325/2007 to 5328/2007
rate of 30:35:15:20 out of which they are entitled to
recover Rs.4,36,478/- from 1st respondent and
Rs.1,02,522/- from 3rd respondent together with
interest at 8% p.a. from the date of petition till the
realization in its entirety.
Accordingly, issue No.2 in all the petitions is answered.
79. Issue No.3 in all the petitions:- From the
above discussions, this Tribunal proceeds to pass the
following order.
ORDER
All the petitions filed by petitioners in MVC.5325/2007 under Section 166 of MV Act and the rest of the petitions i.e. MVC.5326/2007, MVC.5327/2007 and MVC.5328/2007 filed under Section 163A of MV Act are hereby allowed in part with costs.
In MVC.5325/2007, petitioner is entitled for the total compensation amount of Rs.3,38,000/- out of which he is entitled to recover Rs.2,73,710/- from 1st respondent and Rs.64,290/- from 3rd respondent together with interest at 8% p.a. from the date of petition till the realization in its entirety.
In MVC.5326/2007, petitioners are entitled for total compensation of Rs.5,39,000/- at the rate of 25:35:20:20 (SCCH-15) 45 MVC.5325/2007 to 5328/2007 out of which they are entitled to recover Rs.4,36,478/- from 1st respondent and Rs.1,02,522/- from 3rd respondent together with interest at 8% p.a. from the date of petition till the realization in its entirety.
In MVC.5327/2007, petitioners are entitled for total compensation amount of Rs.3,61,000/- at the rate of 40:60 out of which they are entitled to recover Rs.2,92,334/- from 1st respondent and Rs.68,666/- from 3rd respondent together with interest at 8% p.a. from the date of petition till the realization in its entirety.
In MVC.5328/2007, petitioners are entitled for total compensation amount of Rs.5,39,000/- at the rate of 30:35:15:20 out of which they are entitled to recover Rs.4,36,478/- from 1st respondent and Rs.1,02,522/- from 3rd respondent together with interest at 8% p.a. from the date of petition till the realization in its entirety.
1st and 3rd respondents shall deposit the compensation amount together with interest and cost within 30 days from today.
On deposit of compensation amount, petitioner in MVC.5325/2007 shall deposit Rs.1,00,000/- in Karnataka Bank, City Civil Court Branch, Bengaluru for a period of 5 years and the remaining compensation amount together with interest and cost is ordered to be released in his favour through an account payee cheque without awaiting further orders. (SCCH-15) 46 MVC.5325/2007 to 5328/2007 In MVC.5326/2007, petitioners shall deposit Rs.50,000/- each in Karnataka Bank, City Civil Court Branch, Bengaluru for a period of 5 years and the remaining compensation amount together with interest and cost is ordered to be released in their favour through an account payee cheque without awaiting further orders.
In MVC.5327/2007, petitioners shall deposit Rs.50,000/- each in Karnataka Bank, City Civil Court Branch, Bengaluru for a period of 5 years and the remaining compensation amount together with interest and cost is ordered to be released in their favour through an account payee cheque without awaiting further orders.
In MVC.5328/2007, petitioners shall deposit Rs.50,000/- each in Karnataka Bank, City Civil Court Branch, Bengaluru for a period of 5 years and the remaining compensation amount together with interest and cost is ordered to be released in their favour through an account payee cheque without awaiting further orders.
Advocate fee is fixed at Rs.2,000/- each in all the cases.
Draw a decree accordingly.
Office is directed to keep the original copy of the judgment in MVC.5325/2007 and the copy thereof in MVC.5326/2007, MVC.5327/2007 and MVC.5328/2007 .
(Dictated to the stenographer, transcribed by her, corrected and then (SCCH-15) 47 MVC.5325/2007 to 5328/2007 pronounced in the open Court by me on this the 17th day of April, 2015.) (K.KATYAYINI), XIII Addl. Judge & Member MACT Court of Small Causes, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PETITIONERS:
PW1 : D.T. Mahesh PW2 : K. Venkatesh PW3 : Rajanaik PW4 : Narasamma PW5 : Dr. Kiran
LIST OF WITNESSES EXAMINED ON BEHALF OF RESPONDENTS:
RW1 : Smt. Indumati RW2 : Smt. P. Parimala
LIST OF DOCUMENTS EXHIBITED ON BEHALF OF PETITIONERS:
Ex.P1 : True copy of FIR with complaint Ex.P2 : True copy of Spot mahazar Ex.P3 : True copy of spot sketch Ex.P4 : True copy of IMV report Ex.P5 : True copy of wound certificate Ex.P6 : True copy of charge sheet Ex.P7 : discharge summary Ex.P8 : salary certificate Ex.P9 : Hospital and medical bills (16 in nos.) Ex.P10 : prescriptions (9 in nos.) Ex.P11 : post mortem report pertains to Jagadeesh Ex.P12 : inquest mahazar Ex.P13 : voter's ID Ex.P14 : computer basic certificate Ex.P15 : ration card Ex.P15(a : notarised copy of ration card (SCCH-15) 48 MVC.5325/2007 to 5328/2007 ) Ex.P16 : post mortem report pertains to Ramesh Ex.P17 : inquest mahazar Ex.P18 : voter's ID Ex.P19 : 1st year PUC marks card Ex.P20 : SSLC marks card Ex.P21 : ration card Ex.P21(a : notarised copy of ration card ) Ex.P22 : post mortem report pertains to Manjunatha Ex.P23 : inquest mahazar Ex.P24 : voter's ID Ex.P25 : ration card Ex.P25(a : notarised copy of ration card ) Ex.P26 : inpatient record Ex.P27 : Old x-ray films Ex.P28 : recent x-ray films Ex.P29 : CT scan films LIST OF DOCUMENTS EXHIBITED ON BEHALF OF RESPONDENTS:
Ex.R1 : Insurance policy
Ex.R2 : authorisation letter
Ex.R3 : Insurance policy
(K.KATYAYINI),
XIII Addl. Judge & Member MACT Court of Small Causes, Bengaluru.