Bangalore District Court
Would Be At Liberty To Produce The ... vs No.1 Had Not Filed The Written ... on 30 April, 2015
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 30th day of April, 2015.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com.,LL.B.(Spl.),L.L.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C.No.2390/2010
1. Smt. Devamma @ Deviramma, ..... PETITIONERS
W/o Sri.Ningappa,
Aged 41 years.
2. Sri.Ningappa,
S/o Late Sri Kempaiah,
Age 51 years.
Both residents of Bommalapura,
Bookanakere Post, Shilenere Hobli,
K.R.Pet Taluk, Mandya District.
(By Sri. K.C. Visweswaraiah, Adv,.)
V/s
1. Sri. B.A.Nagadeep, ..... RESPONDENTS
S/o Sri Ananth Ramaiah,
No.575, 3rd Cross, 12th Main,
4th Block, Koramangala,
Bangalore-560 034.
(Registered owner of vehicle KA-04-
B-92)
2. The Branch Manager,
Reliance General Insurance
Company Ltd.,
Environ Towers, 60/4,
Hosur Main Road,
Electronic City,
Bangalore-560 100.
(SCCH-7) M.V.C. NO.2390/2010
2
(Insurer of Vehicle KA-04-B-92)
(R1-By Smt. Mamatha J., Adv.,)
(R2- By Sri. Ashok N. Patil, Adv.,)
JUDGMENT
It is pertinent to note here that, the present petition was dismissed on 02.07.2011 on merits by this Tribunal and later, as per the Judgment dated 30.09.2013 passed by the Hon'ble High Court of Karnataka in M.F.A.No.10192/2011(MVC), the Judgment and Award passed by this Tribunal is set-aside and the matter is remitted back to this Tribunal with a direction for adjudication afresh by taking into consideration the charge sheet filed against the driver of Qualis vehicle and the Petitioners would be at liberty to produce the certified copy of the same before this Tribunal and they are also at liberty to tender further evidence and in the event of insurer seeking for an opportunity to tender evidence, this Tribunal shall grant such opportunity and adjudicate the matter afresh without being influenced by its earlier order. Hence, the present petition is pending for consideration and disposal before this Tribunal.
2. The Petitioners No.1 and 2 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 15,00,000/- with interest at the rate of 18% per annum and costs, in respect of death of Sri. Jagadisha B.N. S/o Ningappa, in the road traffic accident.
3. The brief averments of the Petitioners' case are as follows;
(SCCH-7) M.V.C. NO.2390/2010
3
a) They are the mother and father of deceased
B.N.Jagadish, who are permanent residents of Bommalapura Village, Bookanakere Post, Shilenere Hobli, K.R. Pet Taluk, Mandya District. They having no independent source of income, were entirely depending on the earnings of the deceased son, who was working in the Petrol Bunk at Bangalore and also running an Auto Rickshaw after the duty hours. He was earning Rupees 10,100/- per month. In the Petrol Bunk, his Gross Salary was Rupees 2600/- per month and the daily bata was Rupees 50/- per day and in total, he was earning Rupees 4,100/- per month from the Petrol Bunk and by running Auto Rickshaw, he was earning an average of Rupees 6000/- per month and thus, in all, his income was Rupees 10,000/- per month and out of that, he was sending Rupees 5500/- to them on every month. The deceased B.N.Jagadish was a bachelor and they are the sole L.R's of their deceased son B.N.Jagadisha.
b) On 08.03.2010 at about 4.30 a.m., their son B.N.Jadish met with a road accident and died on the spot on the same day. The accident happened on account of the careless driving of the driver of the vehicle bearing Registration No.KA- 04-B-92 owned by the 1st Respondent. The Bidadi Police have registered the case and filed their FIR in Crime No.118/2010 on 08.03.2010 and upon requisition of the said Police, the Medical Officer, Primary Health Centre, Bidadi has done post-mortem of the dead body of their son B.N.Jagasisha and opined that, 'the death was due to shock and hemorrhage as a result of head injury and other injuries over the body sustained', in his post- mortem report dated 08.03.2010.
(SCCH-7) M.V.C. NO.2390/2010
4
c) The 2nd Respondent is the insurer of the said vehicle
and the policy was in force at the time of accident. Therefore, the Respondents No.1 and 2, who are at fault, are jointly and severally liable to pay the compensation to them.
d) On account of the above said Motor/Road Accident, they have lost their son B.N.Jagadish, who was looking after them, who were entirely depending on the earnings of their deceased son B.N.Jagadish.
e) They have spent Rupees 45,000/- towards funeral expenses including transportation of the dead body. They are suffering from irreparable loss and injury, however, the estimated total loss sustained by them is Rupees 15,00,000/-. Hence, this Petition.
4. In response to the notice, the Respondent No.1 has appeared before this Tribunal through his Learned Counsel. But, initially, inspite of giving sufficient opportunities, the Respondent No.1 had not filed the written statement. Later, as per the Order dated 03.11.2010 passed on I.A.No.I, the written statement filed by the Respondent No.1 is taken on file.
5. Initially, though the notice was duly served on the Respondent No.2, he was remained absent and hence, he was placed as exparte on 04.06.2010. Later, the Respondent No.2 has appeared before this Tribunal through his Learned Counsel. But, initially, inspite of giving sufficient opportunities, the Respondent No.2 had not filed the written statement. Later, as per the Order dated 08.01.2014 passed on I.A.No.II, the written statement filed by the Respondent No.2 is taken on file.
(SCCH-7) M.V.C. NO.2390/2010 5
6. The Respondent No.1 inter-alia denying the entire case of the Petitioners, has further contended as follows;
a) The petition filed by the Petitioners is not maintainable either in law or on facts of the case and hence, he is not liable to pay the compensation as claimed by the Petitioners.
b) The compensation claimed by the Petitioners is fanciful, speculative and exorbitant, besides being without any basis.
c) He is insured with 2nd Respondent. 2nd Respondent is issued a policy in respect of the Toyota Qualis vehicle bearing Registration No.KA-04-B-92 in Policy No.1409792340002581, valid from 20.12.2009 to 19.12.2010. The driver of the vehicle having valid and effective driving licence, on the date of alleged accident. Hence, he is not liable to pay the compensation as claimed by the Petitioners.
d) He is a law abiding citizen, even under normal circumstances, he observes and follows the traffic rules and regulations and follows traffic rules, be that, as it may he had not committed any such accident, as falsely claimed by the Petitioners in the present case.
e) Bidadi Police Station had registered a false Complaint in their Crime No.118/2010 under Section 279 and 304(A) of IPC reported by the Petitioners in order to claim compensation. Hence, prayed to dismiss the petition with costs.
(SCCH-7) M.V.C. NO.2390/2010 6
7. The Respondent No.2 inter-alia denying the entire case of the Petitioners, has further contended as follows;
a) He admits the policy issued in the name of B.A. Nagadeep, vide Policy No.140979234002581 in respect of the vehicle bearing its Registration No.KA-04-B-92, if liability any, subject to the terms and conditions of the insurance policy.
b) Immediately after the accident, the inmates of the insured vehicle, by name, S.Partha has filed the complaint before the jurisdictional Police stating that, on the date of accident, the driver of the insured vehicle driving in a slowly and cautiously, at that time, one unknown Lorry came and dashed against the insured vehicle. On the basis of the complaint filed by the inmates of the insured vehicle, has filed the FIR against one unknown Lorry on 08.03.2010. Later, the Police have filed the charge sheet after lapse of 19months against the insured vehicle without conducting the proper investigation, colluding with the Petitioners filed the false charge sheet to get a illegal compensation.
c) The petition is liable to be dismissed for non-joinder of necessary party, viz., the insured and insurer of the Lorry, which was involved in the accident.
d) The claim petition filed by the Petitioner under Section 163-A of the M.V. Act is not maintainable, since the deceased was earning the Rupees 8,500/- per month, same is proved by the Petitioner by examining the employer, where the deceased was working, as P.W.2 and P.W.3 and also P.W.2 and P.W.3 have produced the wages details for the month of October (SCCH-7) M.V.C. NO.2390/2010 7 2009 to February 2010 in respect of the employees working in Petrol Bunk, same is marked as Ex.P.10. As per Ex.P.10, the deceased was receiving Rupees 2,600/- per month and Rupees 50/- per day as the Batta, apart from that, he was working as the driver in Auto Rickshaw. To prove the same, they have examined the owner of the Auto Rickshaw, who has entered the witness box as P.W.3, who has deposed that, deceased was working in his Auto Rickshaw as a driver and he used to pay Rupees 6,000/- per month. To prove the same, they have produced the licence of the deceased and also Registration Certificate and Permit of the Auto Rickshaw, which are marked as Ex.P.7, 11 and 12, respectively. On verification of the affidavit by way of chief-examination and documents filed by the P.W.2 and P.W.3, it discloses that, the deceased was earning Rupees 10,100/- per month. The claim petition filed by the Petitioner under Section 163-A of the M.V. Act is not maintainable, since the deceased earning not comes within Rupees 40,000/- per annum.
e) The first Respondent/insured is duty bound under Section 134 of the M.V. Act to inform the accident and submit all the vehicle documents including driving licence and insurance particulars to it to seek indemnification. The first Respondent has failed and neglected to perform the statutory obligations to seek the indemnification. Violation of the M.V. Act in this regard and also violation of the terms and conditions of the insurance contract would disentitle the first Respondent to claim the indemnification from it.
(SCCH-7) M.V.C. NO.2390/2010
8
f) The accident has taken place due to the negligence
of the driver of the unknown Lorry. Hence, it is not liable to indemnify the present claim petition.
g) The Petitioners are put to strict proof that, they have not filed any other claim petition in any other Forum/Tribunal/Arbitration in the same cause of action.
h) In the event this Court/Tribunal arrives at a conclusion that, it is liable to pay the compensation, then, interest that may be restricted to 6% per annum. The Petitioners shall be entitled to interest only on pecuniary loss sustained. No interest shall be awarded in respect of non- pecuniary damages.
i) It seeks permission from this Hon'ble Court to contest the matter on all the grounds available to the insured under Section 170 of the M.V. Act.
j) The amount of compensation of Rupees 15,00,000/- claimed in the petition is too excessive, exorbitant and does not have nexus to the age, avocation, injury and alleged earnings of the Petitioners. Hence, prayed to dismiss the petition.
8. 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. Jagadisha B.N.?
(SCCH-7) M.V.C. NO.2390/2010 9
2. Whether the Petitioners prove that, on 08.03.2010, at about 4.30 a.m., when the deceased and others were traveling in a Toyota Qualis bearing Registration No.04- B-92 and when the said vehicle reached near Lakshminasagar Gate, Bidadi Hobli, Ramanagara Taluk, at that time, the driver of the said Qualis vehicle drove the same in a rash or negligent manner caused the accident? If so, whether the Petitioners prove that, the deceased sustained fatal injuries and succumbed to the injuries was due to the alleged accident?
3. Whether the Petitioners are entitled for compensation? If so, how much and from whom?
4. What Order or Award?
9. In order to prove their case, the Petitioners have examined the Petitioner No.2 as P.W.1 and also examined three witnesses as P.W.2 to P.W.4 by filing the affidavits as their examination-in-chief and have placed reliance upon Ex.P.1 to Ex.P.14. On the other hand, the Respondent No.2 has examined two witnesses as R.W.2 and R.W.3 and has placed reliance upon Ex.R.1 to Ex.R.8.
10. Heard the arguments. The Learned Counsels appearing for the Petitioners and Respondent No.2 have filed the written arguments.
11. In support of the submission, the Learned Counsel appearing for the Petitioners, Sri. K.C. (SCCH-7) M.V.C. NO.2390/2010 10 Visweswaraiah has placed reliance upon the decisions reported in,
i) (2003) 9 Supreme Court Cases 208 (Thakur Singh V/s State of Punjab), wherein, it is observed that, A. Penal code, 1860-S.304-A-Causing death by rash and negligent driving-Burden of proof-Doctrine of res ipsa loquitur applied- Death of passengers in bus accident-Fact admitted that, the appellant driver was driving the vehicle when accident occurred- Held in view of the facts, burden was on appellant to prove that the accident happened due to cause other than negligence on high speed part- In absence of the said proof, conviction of appellant by trial court and subsequent confirmation of it by High Court upheld-maxims-Resipsa loquitur- Evidence Act, 1972, Ss 101 and 103.
4. It is admitted that, the Petitioner himself was driving the vehicle at the relevant time. It is also admitted that, bus was driven over a bridge and then it fell into canal. In such a situation the doctrine of res ipsa loquitur comes into play and the burden shifts on to the a man who was in control of the automobile to establish that, the accident did not happen on account of any negligence on his part. He did not succeed in showing that, the accident happened due to causes other than negligence on his part.
5. We have stated the above aspects only in the wake of the grievance expressed by the learned counsel that, the Petitioner was not heard by the High Court. We find no reason to interfere with the conviction passed by the trial court and confirmed by the appellate (SCCH-7) M.V.C. NO.2390/2010 11 court which the High Court declined to interfere with.
ii) (2005) 3 Supreme Court Cases 241 (Cholan Roadways Ltd., V/s G.Thirugnanasambandam), wherein, it is observed that, E. Tort-negligence-Res ipsa loquitur-
Meaning and applicability-Motor vehiucle accident Negligence of driver in causing- Burden of proof-held, nature of impact clearly demonstrates that, vehicle was being driven rashly and negligently-Moreover, defence of driver that, vehicle was being driven at a slow speed, categorically rejected- Hence, since the accident spoke for itself, burden of proof was on Respondent driver to prove that vehicle was not being driven by him rashly and negligently- Evidence Act, 1872-S 101-Words and phrases- "Res ipsa loquitur"-meaning.
Res ipsa loquitor is a well known principle which is applicable in the instant case. The general purport of the words res ipsa loquitur is that, the accident speaks for itself or tells its own story. There are cases in which the accident speaks for itself so that, it is sufficient for the Plaintiff to prove the accident and nothing more. It will then be for the Defendant to establish that, the accident happened due to some other cause than his own negligence. Once the said doctrine is found to be applicable the burden of proof would shift on the delinquent. In c a case of this nature the probative value of the evidence showing no extensive damages caused to the entire left side of the bus, the fact that, the bus first hit the branches of a tamarind tree and then topped at a distance (SCCH-7) M.V.C. NO.2390/2010 12 of 81. From this, it appears that, from even after colliding with another bus coming from the front deserved serious consideration at the hands of the Tribunal. The nature of impact clearly demonstrates that, the vehicle was being driven rashly or negligently.
Moreover, the enquiry officer has categorically rejected the defence of the Respondent that, the bus was being driven at a slow speed. The burden of proof was therefore, on the Respondent to prove that, the vehicle was not being driven by him rashly or negligently.
iii) 2012 SCC Online Del 6158 (Oriental Insurance Company Ltd., V/s Sanjay Rathi), wherein, it is observed that, Tort- Law- negligence- Non-registration of the FIR-Effect of-Held, when the claimant has proved the accident, non-registration of the FIR does not cause any doubt over testimonies of the witnesses-The MLC of the claimant had been proved by the PW4- So far as the negligence was concerned, this case is governed by the principles of res ipsa loquitur means that, the accident speaks for itself-following the law laid down by the court in National Insurance Co. Ltd., V/s Gita Bindal, Manu/DE/504102012, it was held that, the effect of doctrine of res ipsa loquitur is to shift the onus to the Defendant in the sense that, the doctrine of res ipsa loquitur is to shift the onus to the Defendant in the sense that, he doctrine continues to operate unless the Defendant calls credible evidence which explains how the accident or mishap may have occurred without negligence-
negligence.
(SCCH-7) M.V.C. NO.2390/2010
13
iv) 2014 SCC Online Del 1750 (Pinki and Others
V/s Perveen Kumar & Others), wherein, it is observed that,
11. The Hon'ble Supreme Court in the case of N.K.V Bros (P) Ltd V.M.Karumal Ammal, AIR 1980 SC 1354- in Para 3 held as follows:
"3. Road accidents are one of the top killers in our country, specially, when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the Courts, as has been observed by Under Section earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that, innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances, where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasizing this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that, they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving."
12. In view of the above legal position, the evidence of P.W.1.3 and the record of the criminal proceedings in my view the inference drawn by the Tribunal against the appellant on issue No.1 is erroneous-The testimony of PW3 read with charge sheet itself would show that, Respondent No.1 was (SCCH-7) M.V.C. NO.2390/2010 14 guilty of rash and negligent driving of the offending vehicle. Accordingly the present petition is allowed to the extent the award records a finding adverse to the appellant on Issue No.1. That part of the award is set-
aside. The matter is remanded back to the Tribunal to adjudicate the balance issues and render a finding as per law.
v) 2010 ACJ 1340 High Court of Madhya Pradesh, Indore Bench (Oriental Insurance Co. Ltd., V/s Kamli and Others), wherein, it is observed that, Motor Vehicles Act, 1988, Section 147(1) (b)
(i)-motor Insurance-Goods vehicle-Tractor- trolley-Liability of insurance company-FIR mentions that, deceased who was traveling in a Tractor-trolley fell down and was run over by its rear wheel-Insurance company relying on FIR seeks to avoid its liability on the plea that, there was breach of policy and of law-Witness who had lodged the FIR deposed on oath that, deceased was going on foot, he was hit from behind by Tractor-trolley, he denied that, deceased was traveling in the vehicle and stated that, he was not aware as to how this fact was mentioned in FIR-Whether the Tribunal was justified in relying on the deposition of the witness on oath and mulcting liability on the insurance company Held: Yes, FIR is not a substantive piece of evidence and it cannot be placed on pedestal higher than the statement of oath.
Evidence- FIR- Appreciation of -Material contradiction between the contents of FIR and the statement of oath before the Tribunal by the witness who lodged the FIR-Whether the Tribunal was justified in relying on the statement-Held: Yes, FIR is not a substantive piece of evidence and cannot be placed on (SCCH-7) M.V.C. NO.2390/2010 15 pedestal higher than the statement made before the court.
vi) 2008 ACJ 1165 Supreme Court of India (T.O. Anthony V/s Karvarnan and Others), wherein, it is observed that,
5. The Tribunal assumed that, the extent of negligence of the appellant and the first Respondent is fifty fifty, because it was a case of composite negligence. The Tribunal, we find, fell into a common error committed by several Tribunals, in proceeding on the assumption that, composite negligence and contributory negligence are the same. In an accident involving two or more vehicles, where a third party (other than the drivers and/or owners of the vehicles involved0 claims damages for loss or injuries. It is said that, compensation is payable in respect of the composite negligence of the drivers of those vehicles. But, tin respect f such an accident, if the claim is by one of the drivers himself for personal injuries, or by the legal heirs of one of the drivers for loss on account of his death, or by the owner of one of the vehicles in respect of damages to his vehicle, then the issue that, arises is not about the composite negligence of all the drivers, but, about the contributory negligence of the driver concerned.
6. Composite negligence refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that, the person was injured on account of the composite negligence of those wrong doers. In such a case, each wrong doer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong doer separately, nor is it necessary for the (SCCH-7) M.V.C. NO.2390/2010 16 court to determine the extent of liability of each wrong doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence, where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence n his part but, eh damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence.
vii) (2014) 3 Supreme Court Cases 590 (Pawan Kumar and Another V/s Harikishan Dass Mohan Lal and Others), wherein, it is observed that, Motor Vehicles Act, 1988-Ss, 166 and 173- Negligence-Contributory or composite- Distinction between reiterated-Appellant claimants represented two deceased and one injured person who were traveling in Jeep owned by R-1 and driven by R- 2, which met with an accident with a truck coming from opposite direction-As truck had fled from spot, driver/owner and insurer of said truck could not be imp leaded in any claim petition-Thus, Tribunal denied compensation-High Court held that, the drivers/owners of both the truck as well as the jeep, in which the deceased and the injured were traveling, were responsible for the accident and thus invoking the principle of contributory negligence held that, the liability of the driver owner of the truck should be estimated at 70% and that, of the driver/owner of the jeep at 30%-Held, as neither driver/owner nor insurer of jeep have filed any appeal or cross-objections against findings of High Court that, both vehicles were responsible for accident, the same are accepted-But,, held, it is clear that, High Court was not correct in apportioning (SCCH-7) M.V.C. NO.2390/2010 17 liability for accident between the two vehicles- The present case is one of composite negligence of both vehicles- Hence, rivers/owners of both vehicles are jointly and severally liable to ay entire compensation in view of their composite negligence and it is open to claimants to enforce the award against both of them or entirely against any one of them-Order of High Court modified to that, extent.
viii) AIR 1981 Kant 11 (The General Manager, Karnataka V/s Krishnan and Others), wherein, it is observed that,
11. So far as the passengers traveling in the bus are concerned, it becomes a case of composite negligence on the part of both drivers in causing the accident.
12. In the case of Hiradevi V/s Bhaba kanti Das (1977 ACC CJ 293) (AIR 1977 Gau 31) the High Court of Assam at Gauhati has held, relying on the decision in the case of Manjula Devi V/s Manjusri Raha (1968 ACC C.J.1) High Court of Madhya Pradesh, in similar circumstances when a bus and a car dashed against each other and e when the Tribunal found that, both the drivers were rash and negligent that, it was a case of joint tort feasors and that, the Tribunal was in error in apportioning the liability.
Further, the High Court has observed as follows:
A case of contributory negligence arises only when there was an act or omission on the part of the Plaintiff which has materially contributed to the damage, the act of omission being of such a nature that, it may be properly described as negligence and that, in a case where there has been no contributory negligence on the part of (SCCH-7) M.V.C. NO.2390/2010 18 the victim, the question of apportionment does not arise.
13. Therefore in the present case as well, there is no question of the victims contributing in any way to the cause of the accident, the present cases are clearly cases of composite negligence. Hence, both the drivers are jointly and severally liable to pay the compensation.
ix) 2014 (3) Mh.L.J. 371 (Oriental Insurance Co. Ltd., V/s Naina W/o Bapurao Bhamodkar and Others), wherein, it is observed that,
(a) Motor Vehicles Act (59 of 1988), @. 166- Claim petition based upon composite negligence- Injured person has a choice of proceeding against all or any of the wrong doers responsible for causing of accident.
The expression" composite negligence"
refers to the negligence on the part of two or more person who is not a driver or owner of the vehicle involved in the case. The concept of "contributory negligence" applies only when the claimant is seeking compensation for the injury or loss of account of death or loss on account of damage to the vehicle caused by not only negligence on the part of the driver of his own vehicle but, also on the part of the other vehicle involved in the accident.
In case of composite negligence, the injured need not establish the extent of responsibility of each wrong doer separately, nor is it necessary for the Court to have a choice of proceeding against all or any of the wrong doers responsible for causing of the accident. Once it is found that, it is the choice of the injured or legal heirs f the deceased to proceed against one of the wrong doers in a case involving composite negligence, the direction issued by the Tribunal regarding payment of compensation jointly and (SCCH-7) M.V.C. NO.2390/2010 19 severally by the driver, owner and insurer of one of the motor vehicles, cannot be held to be illegal and unjustified.
x) 1988 ACJ 8 High Court of Rajasthan, Jaipur Bench (National Insurance Co. Ltd., and Others V/s Kastoori Devi and Others), wherein, it is observed that, Composite negligence-Apportionment of liability-Insurers of two vehicles involved in an accident contended that, apportionment of liability of both the insurance companies be done according to the proportion of negligence of the two vehicles- Held; there is no method or indicia to bifurcate or apportion the liability both are liable jointly or severally.
xi) (2013) 7 Supreme Court Cases 476 (Vimal Kanwar and Others V/s Kishore Dan and Others), wherein, it is observed that, D. Motor Vehicles Act, 1988-Ss, 168,173 and 171-Compensation for death in motor accident-computation of-Deceased, a government employee aged about 28 ½ yrs old-
was drawing a salary of about Rupees 9000 per month and had 3 dependants-Would have been entitled to double pay on continuing service till the date of retirement-Hence, monthly income of deceased increased by 100% ( Rs 9000X2= Rs 18,000/-p.m.)-Having regard to 3 dependants, 1/3rd of monthly income (i.e., Rs.6000/-) deducted towards personal living expenses of deceased-Thus, total annual income of deceased for purpose of compensation assessed at Rs.12,000 X 12=Rs.1,44,000/- p.a.-Applying multiplier of 17 in view of age of deceased being 28½ yrs, normal compensation worked out to be Rs.24,48,000/- To the said amount added: (i) Rs.1 lakh towards loss of consortium and loss of estate (ii) Rs.2 lakhs towards loss of love and (SCCH-7) M.V.C. NO.2390/2010 20 affection for daughter (iii) Rs.1 lakh each towards loss of love and affection for widow and mother and (iv) Rs.25,000/- towards funeral expenses-Thus total compensation assessed at Rs.29,73,000/- along with interest @ 12% p.a from date of filing of petition till payment awarded- compensation of Rs.14,93,700 awarded by Tribunal and confirmed by High Court, modified accordingly-Directions issued also as to manner of disbursement of compensation -Civil Procedure Code, 1908-S.34- InterestAct, 1978 Ss.3 and 4.
xii) (2013) 16 Supreme Court Cases 711 (Josphine James V/s United India Insurance Company Limited and Another), wherein, it is observed that, B. Motor Vehicles Act, 1988-Ss, 166 d 168- Compensation for loss of dependency-Deceased being sole earning member of family-sisters not claiming compensation -Annual income of deceased (21 yrs at the time of accident) being Rs.5000/- per month-Appellant held, entitled to 100% of income of deceased for calculation of compensation and by applying the multiplier of 15 (appellant mother being 41 yrs old at the time f death of her son).Tribunal rightly arrived at the figure of Rupees 9 lakhs for loss of dependency-Therefore, award of Tribunal totaling Rupees 13.07 lakhs is restored-High Court holding that, appellant being mother was entitled to only 50% of income of deceased for calculation of compensation for loss of dependency, set aside.
C. Motor Vehicles Act, 1988-Ss, 166 and 168-interet payable on award (for accident dated 12.06.1998)-Interest of 6% awarded by High Court as well as Tribunal directed to be increased to 9%- This interest directed to be paid from date of application till date of payment by compensation as interest/interest on compensation.
(SCCH-7) M.V.C. NO.2390/2010 21
12. 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 total
compensation of Rupees
4,88,746/- with interest at
the rate of 6% p.a. from
the date of petition till the
date of payment, from the
Respondent No.2.
Issue No.4 : As per the final Order,
for the following;
REASONS
13. ISSUE NO.1 :- The P.W.1, who is the Petitioner
No.2, has stated that, the Petitioner No.1 is his wife and they have filed the present petition claiming compensation in respect of death of their Son B.N.Jagadisha, who met with a road traffic accident near Lakshmisagar Gate, Bidadi Hobli, Ramanagar Taluk and District on 08.03.2010 at about 4.30 a.m. He has further stated that, their deceased son is a bachelor and being the sole legal representatives of their son B.N.Jagadisha. The Petitioners have produced Ex.P.7 SSLC Marks Card and Ex.P.8 Driving Licence relating to their deceased son B.N.Jagadisha and Ex.P.9 Ration Card relating to their family. On perusal of the contents of the said Ex.P.7 to Ex.P.9, it clearly goes to show that, the Petitioner No.1 is a mother and the Petitioner No.2 is a father of deceased B.N.Jagadisha.
(SCCH-7) M.V.C. NO.2390/2010 22
14. The Petitioners have also produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Post Mortem Report, Ex.P.5 Inquest Mahazar and Ex.P.13 Charge Sheet. The contents of the said material documents clearly disclosed that, the said deceased B.N.Jagadisha S/o of Ningappa died on the accidental spot itself on 08.03.2010 at 4.30 a.m. due to the severe fatal injuries sustained by him in the said road traffic accident.
15. From this, it is made crystal clear that, the Petitioner No.1 is a mother and the Petitioner No.2 is a father of B.N.Jagadisha, who succumbed to the injuries in the accidental spot itself, which was taken place on 08.03.2010 at 4.30 a.m. Hence, the Petitioner No.1 being a mother and the Petitioner No.2 being a father, are the legal representatives of the said deceased. Accordingly, I answered Issue No.1 in the Affirmative.
16. ISSUE NO.2 :- The P.W.1 has stated that, on 08.03.2010, their deceased son B.N.Jagadisha and his friends were traveling from Haralakuppe to Bangalore in a Maxi Cab/Toyota Qualis vehicle bearing Registration No.KA-04-B-92 and at about 4.30 a.m., the said vehicle met with a road accident at near Lakshmisagar Gate, Bidadi Hobli, Ramanagar Taluk and District, i.e., within the jurisdiction of Bidadi Police Station and due to the said accident, their son died on the spot on the same day itself. He has further stated that, the said accident was happened on account of the careless, rash and negligent driving of the driver of the said Toyato Qualis vehicle bearing Registration No.KA-04-B-92 and the Bidadi Police have registered the case and filed their FIR in Crime No.118/2010 on 08.03.2010 and upon requisition of the said Police, the Medical (SCCH-7) M.V.C. NO.2390/2010 23 officer, Primary Health Centre, Bidadi, has done Post Mortem of the dead body of the deceased B.N.Jagadisha and opined that, the death was due to shock and hemorrhage as a result of fatal head injury and other injuries over the body sustained due to the road accident, in his post-mortem report dated 08.03.2010.
17. The P.W.1 has further stated in his cross- examination that, as on the date of accident, his son was returning in a Qualis vehicle along with his friend after attending marriage and in the accident, his son B.N.Jagadisha died and at the time of accident, in all 8 persons were traveling in Qualis Car and one S.Partha was among them. He has further stated that, one of the occupants of the Car informed him about the accident and about 2 to 3 persons suffered injuries in the accident and his son alone died in the accident in the spot itself.
18. The Petitioners have produced Ex.P.3 Post Mortem Report, Ex.P.5 Inquest Mahazar and Ex.P.13 Charge Sheet, which clearly disclosed about the death of deceased B.N.Jagadisha S/o Sri Ningappa in the road traffic accident in the spot itself, which was taken place on 08.03.2010 at about 4.30 a.m. The death of the said deceased B.N.Jagadisha S/o Ningappa in the road traffic accident on 08.03.2010 at 4.30 a.m., is not disputed by the Respondents.
19. It is pertinent to note here that, in the present case, the Respondents have seriously disputed about the very involvement of the Maxicab/Toyota Qualis Car bearing Registration No.KA-04-B-92 as well as its driver in the alleged accident, i.e., the allegation made as against the driver of the (SCCH-7) M.V.C. NO.2390/2010 24 said offending vehicle that, due to his negligence, careless, rash and negligent manner of driving of the said vehicle by its driver, the said road traffic accident was taken place.
20. The contents of Ex.P.1 FIR and Ex.P.2 Complaint produced by the Petitioners disclosed that, initially, the complainant, who is the P.W.4, who is also an eye witness, inmate and friend of the said deceased, has lodged Ex.P.2 Complaint as against the driver of the unknown Lorry and the Bidadi Police have registered a Criminal case as against the driver of the unknown Lorry for the offences punishable under Section 279, 337 and 304(A) of IPC R/w Section 187 of M.V. Act, based on the Ex.P.2 Complaint lodged by P.W.4.
21. The Respondent No.2 has examined the driver of the said maxi Cab/Toyota Qualis Vehicle bearing Registration No.KA-04-B-92 as R.W.2, who has stated in his examination-in- chief that, on 08.03.2010, the deceased and his friends had hired his son's vehicle from Pandavapura to Bangalore, wherein, he was a driver and on that day, when he was leaving the said vehicle from Pandavapura to Bangalore at 4.45. a.m., near Subhash Hospital, Bidadi, the Lorry, while over taking, caused the accident to their vehicle and the said Lorry dashed to their vehicle on left side and the said accident was occurred due to the negligent manner of driving of the said driver.
22. The Respondent No.2 has also examined its Officer as R.W.1, who has stated in his examination-in-chief that, as per FIR, the accident dated 08.03.2010 has caused because of rash and negligence of unknown Lorry and it had lodged by one of the inmate of the vehicle bearing Registration No.KA-04-B-92, (SCCH-7) M.V.C. NO.2390/2010 25 who has stated in the complaint that, the accident is because of rash and negligent driving of the unknown Lorry and there is no FIR on the insured vehicle bearing Registration No.KA-04-B-92 and as such, the alleged accident was occurred only because of rash and negligent of the unknown Lorry. He has further stated that, the Petitioners having colluded with the Police have filed a charge sheet after lapse of 19 months against the insurer, even though there is no Complaint or FIR against the insured vehicle, which shows that, there is collusion in between the Petitioners and Police to get illegal compensation.
23. The Respondent has also produced Ex.R.2 FIR and Complaint, Ex.R.3 Spot Panchanama, Ex.R4 MVI Report and Ex.R.5 Charge Sheet. They have also produced Ex.R.6 deposition of R.W.1, Ex.R.7 deposition of R.W.2 and Ex.R.8 Judgment and Award relating to M.V.C.No.6841/2010, which was filed by one of the inmate of the said vehicle bearing Registration No.KA-04-B-92, which was dismissed on merits by the Hon'ble XVI Additional Judge, MACT, Bangalore.
24. But, based on the above said evidence, which is adduced by the Respondent No.2, both oral and documentary, coupled with the contents of Ex.P.1 FIR, Ex.P.2 Complaint and Ex.R.2 FIR with Complaint, it cannot be come to the conclusion that, there was no negligence on the part of the driver of the offending Maxi Cab/Toyota Qualis Car bearing Registration No.KA-04-B-92, but, the entire negligence is on the part of the driver of the unknown Lorry and in collusion with the Police, the Petitioners have managed to file a false charge sheet after lapse of 19 months, as against the driver of the said maxi cab, even though there is no Complaint or FIR as against him, as, (SCCH-7) M.V.C. NO.2390/2010 26 the contents of Ex.P.1 FIR and Ex.P.2 Complaint are not a conclusive proof and it can varied during the course of investigation and after thorough investigation, the Investigating Officer has filed a charge sheet as against the accused, who has committed the offence, which is clear from the material documents prepared by the Investigating Officer during the course of investigation. Further, the Petitioners have examined the P.W.4, who is an eye witness and who alleged to have been lodged Ex.P.2 Complaint before the said Police, as P.W.4, who has stated in his examination-in-chief that, the deceased B.N.Jagadisha is one of his friend and he died in a road traffic accident on 08.03.2010 on Bangalore-Mysore, near Lakshmisagar Gate, Bidadi Hobli, Ramanagar Taluk and District, when the accident occurred, he was traveling along with the deceased Jagadisha and other friends in Toyota Qualis Car bearing Registration No.KA-04-B-92 on 08.03.2010 and they were returning in the said Car from Aralakuppe Village of Pandavapura Taluk to Bangalore after attending the wedding function of the sister of the deceased Jagadisha and when they about to reach Lakshmisagara Gate at about 4.30 a.m., a Lorry came before their Car by overtaking their Car and since the driver of their Car did not take minimum care and caution by applying the brakes, their Car dashed the backside of the said Lorry and the said Lorry went away without stopping. He has further stated that, due to the said accident, his friend Jagadish died on the spot itself and the reason for the accident is the rash and negligent driving of the driver of their Toyota Qualis Car and after the accident, he took the treatment in the nearby Subhash Hospital and lodged Police Complaint at about 9.30 a.m., with the Bidadi Police Station against the Car driver and (SCCH-7) M.V.C. NO.2390/2010 27 the Lorry driver and gone with the dead body to attend the last rituals without waiting for collecting the FIR copy from the Bidadi Police Station. He has further stated that, after several months, after recording the statement of his other friends, he was also called by the Investigation Officer to record his statement and accordingly, when he went to give his statement, he was surprised to know that, the Bidadi Police have not registered the FIR as against the Car Driver and have registered only against the driver of the unknown Lorry be replacing his own handwritten complaint with the bogus one, which contains only his name in the capital letters and not his signature. He has further stated that, he gave the detailed statement before the Investigation Officer by narrating each and every thing and once again repeats the same that, the accident happened due to rash and negligent act of the driver of the Toyota Qualis Car. It is pertinent to note here that, the name of the P.W.4 is shown as witness No.1 in Ex.P.13 and Ex.R.5 Charge Sheet. The P.W.4 in his cross-examination has further clearly stated that, when the accident was taken place, he was in the said vehicle and on that day, along with him, the other persons, namely, Muddappa, Satish, Sunil and deceased Jagadish were in the said vehicle. The names Muddapa, Satish and Sunil are also shown in the Ex.P.13 and Ex.R.5 in charge sheet as eye witnesses. The P.W.4 has further stated that, on that day, they had been to Aralakuppe Village, Pandavapura Taluk, Mandya District from Bangalore and the alleged accident was taken place in between 3.00 a.m. to 4.00 a.m. and on that day, he saw the accident personally and the driver of the vehicle was driving the said vehicle rash and negligently and at the place of Bidadi, he was taken the vehicle from right to left negligently. He has (SCCH-7) M.V.C. NO.2390/2010 28 further clearly stated that, he has given complaint to the Police on the same day of alleged accident and the signature, which is found on Ex.P.2, is not his signature and he has not sustained any injuries in the said alleged accident. He has further clearly denied the suggestion put to him that, to escape from the contents of Ex.P.2 Complaint, he is falsely deposing that, the alleged accident was taken place due to the rash and negligent driving of the Toyota Innova vehicle, wherein, he was travelling and the signature, which is found on Ex.P.2 is his signature. From this, it is made crystal clear that, though the P.W.4, who has alleged to have lodged Ex.P.2 Complaint before the Police, has been cross-examined by the Respondents, nothing has been elicited from his mouth that, the entire negligence is on the part of the driver of the unknown Lorry and not on the alleged offending Maxi Cab/Toyota vehicle bearing Registration No.KA- 04-B-92, but, after a lapse of 19 months from the date of filing of Ex.P.2 alleged Complaint, the said offending vehicle is falsely implicated in collusion with the Police only to get illegal compensation from the Respondents. When, the Respondents have examined the P.W.4, who alleged to have been lodged Ex.P.2 Complaint and who is also an eye witness to the said road traffic accident and who was also one of the inmate, the case made out by the Petitioners that, the negligence is on the part of the driver of Maxi Cab/Toyota vehicle bearing Registration No.KA-04-B-92, which is also involved in the said road traffic accident. Further, the R.W.2, who is a driver of the said offending vehicle, has clearly stated in his cross- examination that, after the accident, the owner of the Car was present in the Police Station. If really, there was no negligence on the part of the driver of the said offending vehicle, the owner (SCCH-7) M.V.C. NO.2390/2010 29 of the said offending vehicle could not have appeared before the said Police. Furthermore, it is clear from the contents of Ex.P.14 Presentation Form that, the appeal is pending in respect of the Judgment and Award passed in M.V.C.No.6841/2010. More so, the observations and the final decision made in the said Ex.R.8 Judgment and Award passed in M.V.,C.No.6841/10 is not binding on this Court, which is of the same jurisdiction.
25. Further, it is clear from the contents of Ex.P.6 and Ex.R.4 MVI Report and Ex.P.4 and Ex.R.3 Spot Panchanama that, the said offending Maxi Cab/Toyota vehicle bearing Registration No.KA-04-B-92, as well as its driver, i.e., the R.W.2, are also very much involved in the said road traffic accident and due to his high speed, rash and negligent manner of driving of the said offending vehicle, the said road traffic accident was taken place, wherein, the deceased Jagadisha B.N. succumbed to the injuries in the spot itself.
26. As this Tribunal has already observed that, after thorough investigation, the Investigating Officer has filed Ex.P.13 and Ex.R.5 Charge Sheet as against the driver of offending unknown Lorry and the offending Maxi Cab/Toyota vehicle bearing Registration No.KA-04-B-92. On perusal of the allegations made in the said charge sheet, it clearly goes to show that, both the drivers of the said offending unknown Lorry and Maxi Cab/Toyota vehicle bearing Registration No.KA-04-B- 92, are equally involved in committing the said road traffic accident, which was taken place on 08.03.2010 at 4.30 a.m. and the said unknown Lorry was stopped by its driver, i.e., Accused No.1, without giving any signal and without observing the vehicles, he negligently took the same from right side to left (SCCH-7) M.V.C. NO.2390/2010 30 side negligently and at that time, the said Maxi Cab/Toyota vehicle bearing Registration No.KA-04-B-92, was also driven by the Accused No.2, who is the R.W.2, in a high speed, rash and negligent manner on the back side of the said unknown Lorry and due to which, he dashed on the hind portion of the said lorry. From this, it appears that, there is composite negligence on the part of both the drivers of the said offending vehicles. It is not the case of the Respondents or R.W.2 that, they have challenged the said Ex.P.13 and Ex.R.5 Charge Sheet before the Hon'ble Appellate Court. It is clearly mentioned by the Investigating Officer in the Charge Sheet that, the Accused No.1, who was a driver of the unknown Lorry as well as the unknown Lorry is not yet secured, in due course of time, if they secure, the final charge sheet will be filed. The said request made by the Investigating Officer is clearly mentioned in the said charge sheet.
27. From the above said material evidence adduced by both parties, it clearly proved that, both offending unknown Lorry and Maxi Cab/Toyota vehicle bearing Registration No.KA- 04-B-92, as well as its drivers, are very much involved in the said road traffic accident, wherein, the deceased Jagadisha B.N succumbed to the injuries in the spot itself. Accordingly, I answered Issue No.2 in the Affirmative.
28. ISSUE NO.3 :- The Petitioners have produced Ex.P.7 SSLC Marks Card and Ex.P.8 Driving Licence relating to the said deceased, which disclosed that, the date of birth of the deceased is 26.09.1988. The date of accident is 08.03.2010. On perusal of the said dates, it appears that, at the time of (SCCH-7) M.V.C. NO.2390/2010 31 accident, the deceased was 22 years old. Hence, the age of the deceased is considered as 22 years at the time of accident.
29. The P.W.1 in his evidence has clearly stated that, at the time of accident, his deceased son was unmarried. From this, it appears that, at the time of accident, the deceased was bachelor.
30. The P.W.1 has stated that, their deceased son was working in a Petrol Bunk and in total, he was earning about Rupees 8,000/- to 8,500/- per month. He has further stated that, in the Petrol Bunk, his Gross Salary was Rupees 2,600/- per month and the daily Bata was Rupees 50/- per day and in total, he was earning Rupees 4,100/- per month from the Petrol Bunk and by running Auto Rickshaw, he was earning an average of Rupees 6,000/- per month and thus, in all, his income was Rupees 10,100/- per month.
31. The Petitioners have also examined the Manager of the said Petrol Bank as P.W.2, who has stated that, the deceased B.N.Jagadish was working under him as "Product Delivery Boy' in their Petrol Bunk M/s. Anuraag Family Trust, Bharath Petroleum Dealers, Koramangala, Bangalore and he jointed their Petrol Bunk in the month of October 2009 and has worked till his death in a road accident. He has further stated that, his gross salary was Rupees 2,600/- per month and they were also paying him Rupees 50/- on every day towards his Bata and thus, in all, he was earning Rupees 4,100/- per month from their Petrol Bunk. He has further stated that, besides that, he was also running/plying an Auto Rickshaw after the working hours of our Petrol Bunk and earning an (SCCH-7) M.V.C. NO.2390/2010 32 average of Rupees 6,000/- per month from running the Auto Rickshaw, on rental basis and he was hard worker, good character and very regular and punctual to his duties. The P.W.2 has produced Ex.P.10 Wage Details for the month of October 2009 to February 2010 relating to his employees working in his Petrol Bunk. He has further clearly stated in his cross-examination that, as deceased was employee in their Petrol Bunk and he knew him since July 2009 and deceased was receiving salary by way of cash. He has further clearly stated that, since 2005, he has been working in their Petrol Bunk and they had also been paying bata to the deceased in cash.
32. The Petitioners have also examined the owner of the Auto Rickshaw bearing Registration No.KA-02-B-6049, which was running by the deceased on rental basis, as P.W.3, who has stated that, the deceased B.N.Jagadisha was driving the said Auto Rickshaw belonging to him on rental basis and he was having a valid driving licence to drive the Auto Rickshaw and was earning Rupees 200/- to 250/- per day after paying Rupees 75/- per day towards ½ day rent to his Auto Rickshaw and in all, he was earning an average of Rupees 6,000/- per month by running his Auto Rickshaw on rental basis. The P.W.3 has produced Ex.P.4 R.C. Book and Ex.P.12 Permit relating to his Auto Rickshaw bearing Registration No.KA-02-B-6049.
33. On perusal of the said oral version of P.W.3 and contents of Ex.P.11 and Ex.P.12, it clearly goes to show that, the P.W.3 is a registered owner of Auto Rickshaw bearing Registration No.KA-02-B-6049. As this Tribunal has already observed about the production of Ex.P.8 Driving Licence relating (SCCH-7) M.V.C. NO.2390/2010 33 to deceased. From the contents of Ex.P.8 Driving Licence, it appears that, at the time of accident, the deceased was having a valid and effective driving licence to drive the said class of Auto Rickshaw. The P.W.3 in his cross-examination has further clearly stated that, he owned the Auto Rickshaw, which had been running by the deceased after his first shift of working in the Petrol Bunk and at the time of 2nd shift of his Petrol Bunk. On perusal of the oral version of P.W.2 and the contents of Ex.P.10 Wages Bills, it appears that, since October 2009 to February 2010, i.e., till his death, the deceased was working under P.W.2 by receiving Gross Salary of Rupees 2,600/- per month and Net Salary of Rupees 2,242/- per month. As this Tribunal has already observed that, at the time of accident, the deceased was 22 years old. By examining the P.W.2 and P.W.3, the Petitioners have proved the avocation and income of the said deceased at the time of accident. But, the income of the deceased from running the Auto Rickshaw belonging to the P.W.3, i.e., Rupees 6,000/- per month cannot be considered in full as, both the P.W.1 and P.W.3 have stated that, though the deceased was running the said Auto Rickshaw, the deceased was earning average Rupees 6,000/- per month. By considering the same and in view of the said reasons, this Tribunal has come to the conclusion that, at the time of accident, the deceased was earning Rupees 2,242/- per month from his work in Petrol Bunk and Rupees 5,000/- per month from running of the Auto Rickshaw, in total, Rupees 7,242/- per month. Therefore, the income of the deceased is considered as Rupees 7,242/- per month at the time of accident.
34. The P.W.1 has stated that, on account of the said road traffic accident, they have lost their son B.N.Jagadish, who (SCCH-7) M.V.C. NO.2390/2010 34 was looking after both of them and they were entirely depending on the earnings of their deceased son. He has further stated that, they are suffering from irreparable loss and injury and they have no source of income and as they were entirely depending on the earnings of their deceased son and their deceased son was contributing Rupees 5,500/- to them towards maintenance of their family on every month. He has further stated that, their deceased son is a bachelor and they are the sole legal representative of their deceased son and as such, they have lost the earning person of their family.
35. As per the decision reported in 2013 ACJ 1403 (Rajesh and Others V/s Rajbir Singh and Others), having regard to the age of the deceased, 50% of the actual income has to be added towards future prospects. Therefore, by adding Rupees 3,621/- (50% of Rupees 7,242/-), the income per month comes to Rupees 10,863/- p.m. (Rs.7,242/- + Rs.3,621/-).
36. As per the decision reported in ILR 2013 KAR 739 (BMTC Central Office V/s B.N.Nagesh and Another), the age of younger parent has to be taken for applying multiplier. As per the decision reported in Reshma Kumari's Case rendered by the Hon'ble Supreme Court of India, the father cannot be considered as dependent of the deceased. Therefore, the Petitioner No.2, who is a father of the deceased, who is aged 51 years, cannot be considered as a dependent of the deceased. The Petitioner No.1, who is a mother of the deceased Sri. Jagadisha B.N. is a younger parent. The age of the Petitioner No.1 as per Ex.P.9 Ration Card is 40 years, as on 25.09.2009. The date of accident is on 08.03.2010. By considering the above said dates, it is clearly appeared that, the age of the Petitioner (SCCH-7) M.V.C. NO.2390/2010 35 No.1 is 41 years as on the date of the accident. The corresponding multiplier applicable to the age of the Petitioner No.1 is 14 as per Sarala Varma's Case.
37. While answering Issue No.1, this Tribunal has already come to the conclusion that, the Petitioner No.2, who is a father, cannot be considered as dependent of the deceased and the Petitioner No.1, who is the mother of the deceased, can only be considered as dependent of the deceased. Therefore, the said deceased Sri. Jagadisha B.N., left behind only one dependant. Hence, 50% of the income of the deceased has to be deducted towards his personal expenses as per Sarala Varma's Case. Therefore, if out of Rupees 10,863/-, 50% is deducted, the loss of dependency comes to Rupees 5,431-50 p.m. (50% of Rs. 10,863/-). The loss of dependency comes to Rupees 9,12,492/- (Rupees 5,431-50 x 12 x 14). Hence, the Petitioners are entitled for the said sum of Rupees 9,12,492/- towards loss of dependency.
38. The P.W.1 has stated that, they have spent Rupees 45,000/- towards funeral expenses including transportation of the dead body. In this regard, except the oral version of the P.W.1, the Petitioners have not produced any documents. But, as per the decision reported in 2013 ACJ 1403 (Rajesh and Others V/s Rajbir Singh and Others), loss of love and affection has to be compensated by awarding Rupees 25,000/- and funeral expenses of Rupees 25,000/-. Hence, the petitioners are entitled for a sum of Rupees 25,000/- towards loss of love and affection and Rupees 25,000/- towards funeral expenses.
(SCCH-7) M.V.C. NO.2390/2010 36
39. It is just, proper and necessary to award a sum of Rupees 5,000/- towards transportation expenses of the dead body and Rupees 10,000/- towards loss of estate. Hence, the petitioners are entitled for Rupees 5,000/- towards transportation expenses of the dead body and Rupees 10,000/- towards loss of estate.
40. In this way, the Petitioners are entitled for the following amount of compensation:-
Sl.No. Compensation heads Compensation amount
1. Loss of Dependency Rs. 9,12,492-00
2. Loss of love and affection Rs. 25,000-00
3. Funeral expenses Rs. 25,000-00
4. Transportation expenses of Rs. 5,000-00 dead body
5. Loss of Estate Rs. 10,000-00 TOTAL Rs. 9,77,492-00
41. In view of the above said reasons, the Petitioners are entitled for total compensation of Rupees 9,77,492/-. The Petitioners are also entitled for interest at the rate of 6% p.a. on the said amount of compensation from the date of petition till payment.
42. The P.W.1 has stated that, the insurance policy was in force at the time of accident and therefore, the Respondents No.1 and 2, who are at fault, are jointly and severally liable to pay the compensation to them.
(SCCH-7) M.V.C. NO.2390/2010 37
43. While answering Issue No.1, this Tribunal has already come to the conclusion that, Maxi Cab/Toyota vehicle bearing Registration No.KA-04-B-92 as well as its driver, are very much involved in the said road traffic accident, wherein, B.N. Jagadisha succumbed to the injuries.
44. By adducing the evidence of R.W.3 and by producing Ex.R.1 Insurance Policy, the Respondent No.2 has admitted that, at the time of accident, the insurance policy relating to the said Maxi Cab/Toyota vehicle bearing Registration No.KA-04-B- 92 is valid. Under such circumstances, both the owner and the insurer of the unknown Lorry and the offending Maxi Cab/Toyota vehicle bearing Registration No.KA-04-B-92 are equally liable to pay the above said compensation and interest to the Petitioners. Since, the owner and Insurance Company relating to the unknown Lorry is not yet traced out by the Investigating Officer, which has been clearly noted in Ex.P.13 and Ex.R.5 Charge Sheet, it is necessary to direct the Respondent No.1, who is the owner and the Respondent No.2 who is an insurer of the Maxi Cab/Toyota vehicle bearing Registration No.KA-04-B-92, to pay 50% of the said compensation and interest to the Petitioners. Furthermore, the owner and insurer of the unknown Lorry are not made as Respondents in the present petition by the Petitioners. Therefore, both the Respondents No.1 and 2 are jointly and severally liable to pay 50% of the compensation amount of Rupees 9,77,492/- i.e., Rupees 4,88,746/- and interest to the Petitioners. Since the Respondent No.2 is an insurer it shall indemnify the Respondent No.1. In view of the above said reasons, the principles enunciated in the decisions cited by the Learned Counsel appearing for the Petitioners are applicable to (SCCH-7) M.V.C. NO.2390/2010 38 some extent to the present facts and circumstances of the case on hand. Hence, Issue No.3 is answered accordingly.
45. 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, 1988 is hereby partly allowed with costs as against the Respondents No.1 and 2.
The Petitioners are entitled for compensation of Rupees 4,88,746/-(50% of total compensation amount of Rupees 9,77,492/-) with interest at the rate of 6% p.a. from the date of the petition till the date of payment, from the Respondent No.2.
The Petitioners shall share the said compensation and interest in the ratio of 70:30.
The Respondents No.2 shall deposit the said compensation and interest in this Tribunal, within one month from the date of this Order.
In the event of deposit of compensation and interest, 50% each share shall be released in the names of Petitioners No.1 and 2 through account payee cheques, on proper identification and remaining 50% each share shall be kept in FD in their respective names, in any nationalized Bank of their choice, for a period of 3 years.
Advocate's fee is fixed at Rupees 1,000/-.
(SCCH-7) M.V.C. NO.2390/2010 39 Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by her, corrected and then, pronounced by me in the open Court on this, the 30th day of April, 2014.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONERS :-
P.W.1 : Sri. Ningappa
P.W.2 : Sri. Shranappa
P.W.3 : Sri. Chandra
P.W.4 : Sri. S. Partha
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 P.M. Report
Ex.P.4 : True copy of Mahazar
Ex.P.5 : True copy of Inquest Mahazar
Ex.P.6 : True copy of IMV Report
Ex.P.7 : Notarized copy of SSLC Marks Card
Ex.P.8 : Driving Licence
Ex.P.9 : Notarized copy of Ration Card
Ex.P.10 : Wage details for the month of October
2009 to February 2010
Ex.P.11 : Notarized copy of R.C. Book relating to
vehicle bearing No.KA-02-B-6049
Ex.P.12 : Notarized copy of Permit
Ex.P.13 : Certified copy of Charge Sheet
Ex.P.14 : Presentation Form relating to
M.F.A.No.9670/2013
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
R.W.1 : -NIL-
R.W.2 : Vijay Kumar
(SCCH-7) M.V.C. NO.2390/2010
40
R.W.3 : Guruprasad H.B.
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
Ex.R.1 : True copy of Insurance Policy
Ex.R.2 : Certified copy of FIR with Complaint
Ex.R.3 : Certified copy of Spot Panchanama
Ex.R.4 : Certified copy of MVI Report
Ex.R.5 : Certified copy of Charge Sheet
Ex.R.6 : Certified copy of Deposition of
R.W.1 recorded in M.V.C.No.6841/2010
Ex.R.7 : Certified copy of Deposition of
R.W.2 recorded in M.V.C.No.6841/2010
Ex.R.8 : Certified copy of Judgment and
Award relating to M.V.C.No.6841/2010
(INDIRA MAILSWAMY CHETTIYAR)
IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.