Bangalore District Court
Sri.Anandaraya vs Cholamandalam Ms Gen.Ins.Co.Ltd on 3 February, 2016
IN THE COURT OF III ADDL. SENIOR CIVIL JUDGE AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, BENGALURU. (SCCH-18)
Dated this 3rd day of February 2016.
Present: SRI.VEERANNA SOMASEKHARA
B.Com, LL.B.,
III ADDL. SENIOR CIVIL JUDGE.
COURT OF SMALL CAUSES,
BANGALORE.
M.V.C.No.2004/2015
PETITIONERS: 1. Sri.Anandaraya
S/o. Narasapa,
Aged about 54 years,
2. Smt.Nagamma
W/o.Sri.Anandaraya,
Aged about 47 years,
3. Sri.Ramesha
S/o.Anandaraya,
Aged about 34 years,
4. Sri.Umesha
S/o.Anandaraya,
Aged about 31 years,
5. SriMahesha
S/o.Anandaraya,
Aged about 28 years,
6. Sri.Prakasha
S/o.Anandaraya,
Aged about 24 years,
2 MVC.No.2004/2015
SCCH-18
7. Smt.Sujatha
D/o.Anandaraya,
Aged about 32 years,
Petitioner No.1 to 7 are
R/at Babalada (S),
Kalaburgi Taluk & Dist-585316.
8. Smt.Prabhavathi Badigera
W/o.Siddalingappa,
D/o.Anandaraya,
Aged about 31 years,
R/at Othihala,
Sindagi Taluk,
Bijapura District-586 115.
The petitioner No.1 to 8 are also
At No.42/7, 1st Main, 2nd Cross,
Muneshwara Layout,
Haralakunte, Kudlu,
Bengaluru.
All are R/at No.19/4,
2nd Main Road, Madivala,
Bangalore-560068.
(By Pleader Sri.GR)
/Vs./
RESPONDENTS: 1.Cholamandalam MS Gen.Ins.Co.Ltd.,
Unit No.4, 9th Floor,
Golden Height Complex,
Level 6, 59th 'C' Cross,
Industrial Suburb, Rajajinagar,
Bengaluru-560010.
(By pleader Sri.YPV)
3 MVC.No.2004/2015
SCCH-18
2. Sri.K.N.Satish,
S/o.K.R.Nagaraj,
Aged about Major,
No.25/1, Babu Reddy Building,
Basapura Village,
Electronic City (Post),
Bengaluru-560100.
(Exparte)
J U D G M E N T
The petitioners have filed this claim petition against the respondents U/Sec. 166 of M.V. Act for seeking compensation of Rs.25,00,000/- for the death of Suresha S/o.Sri.Anandaraya in a motor vehicle accident.
2. The brief facts of petition averments are as under:
On 05-02-2015, at about 12.45 p.m., Suresha was riding the motorcycle bearing registration No.KA-51-EE-2614, along with his friend Vivek.M.R. as a pillion rider, from Garepalya to Mysore Road and when they reached near Nice office, Nice road, Bengaluru, at that time, the driver of the Eicher vehicle bearing reg. No.KA-05-D-5569 drove the same in a rash and negligent 4 MVC.No.2004/2015 SCCH-18 manner and dashed to the motorcycle. As a result of the said accident, Surehsa and the pillion rider have fell down from the bike and sustained grievous injuries. Immediately the injured were shifted to Panacea hospital, and thereafter he was shifted to Sanjaygandhi hospital, Bengaluru and thereafter they were shifted to Sparsh hospital, wherein the injured Suresha has taken treatment as an inpatient and succumbed to the said injuries on 10-2-2015. Thereafter the dead body was shifted to KIMS hospital, Bengaluru for post mortem. After post mortem, the petitioners have taken the dead body and conducted the funeral ceremony.
3. The contention of the petitioners is that, deceased Suresha was hale and healthy at the time of accident, aged about 26 years, working as packing supervisor at Amba Grment, Garepalya, Bangalore and earning Rs.15,000/-p.m. Further the contention of the petitioners is that, they were depending upon the income of the deceased and due to the unexpected death of Suresha, they have lost their bread earner and they have 5 MVC.No.2004/2015 SCCH-18 suffered lot and also suffered mental shock. Further the contention of the petitioners is that, the accident has occurred due to rash and negligent driving of the driver of the Eicher vehicle. The respondent No.1 is the insurer of the Eicher vehicle and the respondent No.2 is the owner of the said vehicle and the policy was in force as on the date of accident. Hence, the respondents are jointly and severally liable to pay compensation to the petitioners.
Contending the above facts, the petitioners have filed this claim petition against the respondents claiming compensation of Rs.25,00,000/- with interest and cost.
4. In response to the petition notices, the respondent No.1 has appeared before the court through his counsel and filed the objection statement. On the other hand, the respondent No.2 has not appeared before the court. Accordingly, he was placed exparte.
5. The brief contents of objection statement of respondent no.1 are as under:
6 MVC.No.2004/2015
SCCH-18 The respondent No.1 has contended that, the petition filed by the petitioners is not maintainable either in law or on facts. Further the respondent No.1 has admitted the issuance of policy to the alleged vehicle and the liability if any, is subject to the terms and conditions mentioned in the policy. Further the respondent No.1 has denied the age, occupation and income of the deceased and also relationship of the petitioners with the deceased. Further the respondent No.1 contended that, the accident has occurred due to rash and negligent riding of the rider of the motorcycle i.e. deceased. Hence, the respondent No.1 is not liable to pay compensation to the petitioners. Further he has contended that the owner and concerned police have not complied the mandatory provisions as required U/s134(C) and 158(6) of MV Act. Contending the above facts, he prays to dismiss the petition against him.
6. On the basis of above pleadings, the following issues were framed:
1. Whether the petitioners prove that Sri.Late Suresha died due to injuries sustained by him in a motor vehicle accident that was taken place on 7 MVC.No.2004/2015 SCCH-18 05.02.2015, at about 12.45 p.m, near Nice Office on Nice road, Bengalure city, involving Eicher vehicle bearing Reg.No.KA-05-D-5569 belonging to Respondent No.2 and the said vehicle insured with second respondent No.1?
2. Whether the petitioners prove that the accident has mainly occurred due to the rash and negligent driving of the driver of the said vehicle?
3. Whether the petitioners prove that they are the only legal heirs and the dependent of the deceased?
4. Whether the petitioners are entitled for compensation as prayed? if so, at what rate and from whom?
5. What order or award?
7. In order to prove the case, the petitioner No.1 has examined himself as PW-1 and got marked the documents as Ex-P-1 to P-14. On the other hand, the respondent No.1 has not adduced any oral evidence and not produced any document on his behalf.
8. Heard the arguments on both the sides and perused the records.
8 MVC.No.2004/2015
SCCH-18
9. My findings to the aforesaid issues are as follows:
Issue No.1 & 2: Affirmative Issue No.3& 4: Partly affirmative Issue No.5: As per final order For the following:
REASONS
10.Issue No.1 & 2 : Both these issues are interconnected with each other. Hence in order to avoid repetition of facts they are taken together for common consideration.
During the course of argument, the learned counsel for the petitioners argued by reiterating the contents of petition averments and also evidence put forth by PW-1. Further he argued that, the defence of the respondent No.1 is that, the accident has occurred due to rash and negligent riding of the rider of the motorcycle i.e. deceased Suresha. To prove the said defence, the respondent No.1 has not produced any rebuttal documents. On the other hand, to prove the rash and negligent driving of the driver of the Eicher lorry, the petitioners have produced the copy of police investigation papers and on perusal 9 MVC.No.2004/2015 SCCH-18 of those documents, it appears that, the accident has occurred mainly due to rash and negligent driving of the driver of the Eicher lorry. Further he argued that, to prove the occupation and income of the deceased, the petitioners have produced the documents and also they have proved their case as contended in the petition by producing oral and documentary evidence. Accordingly, he prays to allow the petition.
11. Per contra, the learned counsel for the respondent No.1 argued by reiterating the contents of the objection statement filed by the respondent No.1. Further he argued that, on the perusal of copy of police investigation papers produced by the petitioners, it shows that accident has occurred due to negligence on the part of the rider of the motorcycle i.e. deceased. Further he argued that, as per the version of the petitioners, they are the legal heirs of deceased Suresha. But to prove the relationship of them with the deceased, the petitioners have not produced any supportive documents. Further he argued that, on perusal of evidence of PW-1, it shows 10 MVC.No.2004/2015 SCCH-18 that, the petitioner No.3 to 8 are an earning members and they are not the dependents upon the income of the deceased. Further he argued that, the petitioners have failed to prove the occupation and income of the deceased by producing proper documents. Further he argued that, the petitioners have failed to prove their case as contended in the petition. Accordingly, he prays to dismiss the petition as against the respondent No.1.
12. On rival contention urged by both the counsel, I intend to discuss the merits of the case.
To prove their case, the petitioner No.1 has examined himself as PW-1 and he has stated in his evidence by reiterating the contents of petition averments. Further in support of his evidence, he has produced the documents, which are marked as Ex-P-1 to 14.
13. Thereafter, the counsel for the respondent No.1 has cross-examined the PW-1 at length. In the cross-examination, the PW-1 has clearly stated at page No.7 that: 11 MVC.No.2004/2015
SCCH-18 " C¥ÀWÁvÀªÀÅ ¯Áj ZÁ®PÀ£À vÀ¦à¤AzÀ DUÀzÉà £À£Àß ªÀÄUÀ£À vÀ¦à¤AzÀ DVgÀĪÀÅzÉAzÀgÉ ¸ÀjAiÀÄ®è." On perusal of the above cross-examination, it reveals that, the defence of the respondent No.1 is that, the accident has not occurred due to rash and negligent driving of the driver of the lorry. To prove the said defence the respondent No.2 has not produced any supportive documents.
14. On the other hand, on perusal of evidence of Pw-1, it appears that, though the counsel for the respondent No.1 has cross-examined the PW-1 at length, but nothing has been elicited from him to disbelieve his version regarding the rash and negligent driving of the driver of the Eicher lorry.
15. Further to prove the rash and negligent driving of the driver of the lorry, the petitioners have relied upon the copy of police investigation papers and the same are marked as Ex-P-1 to 4, 6 to 8. On perusal of Ex-P1 and 4 i.e. certified copy of the FIR with complaint and charge sheet, it appears that, Thalaghattapura police have registered a case against the driver 12 MVC.No.2004/2015 SCCH-18 of the lorry and after completion of investigation, the concerned police have filed charge sheet against the driver of the lorry.
Considering the above facts and on perusal of evidence of PW-1, coupled with documents and for the above reason, I am of the opinion that, the petitioners have proved that the accident has occurred mainly due to the rash and negligent driving of the driver of the lorry.
16. Further, on perusal of Ex-P-2 and 3 i.e. certified copy of inquest panchanama and PM report it appears that, Suresha has sustained grievous injuries in the above accident and succumbed to the said injuries.
17. On appreciation of evidence of PW-1 coupled with documents and for the above reason, I am of the opinion that, the petitioners have proved these issues by producing oral and documentary evidence. Accordingly, I answer the issue No.1 and 2 are in the affirmative.
18. Issue No.3:- The specific contention of the petitioners is that, the petitioner No.1 and 2 are the parents and the 13 MVC.No.2004/2015 SCCH-18 petitioner No.3 to 6 are the brothers and the petitioner No.7 and 8 are the sisters of deceased and they are the legal heirs and dependents upon the income of the deceased. On the other hand, the respondent no.1 has denied the relationship of the petitioners with the deceased and also their dependency upon the income of the deceased.
19. To prove the relationship, the petitioners have relied upon the documents at Ex-P-2, 12 to 14 i.e. copy of inquest panchanama and copy of voter ID cards of the petitioners No.1, 5 and 6. Further on perusal of the records, it appears that, at the time of filing the claim petition, the petitioners have produced the copy of voter ID Cards of them. On perusal of contents of inquest panchanama and contents of Ex-P-2, 12 to 14, it appears that, the petitioners are the legal heirs of deceased.
20. Further on perusal of evidence of PW-1, it appears that, admittedly the petitioner No.3 to 6 are working in various places and they are the earning members. Further on perusal of 14 MVC.No.2004/2015 SCCH-18 the evidence of PW-1, it reveals that, the petitioner No.7 and 8 are the married persons and they are residing with their husband's house. Considering the above facts and circumstances of the case and for the above reason, I am of the opinion that, though the petitioner No.3 to 8 are the legal heirs of deceased, but they are not dependents upon the income of deceased. Hence, they are not entitled for compensation under the head of loss of dependency. On the other hand, they are entitled for compensation under the head of loss of estate only. Further the petitioner No.1 and 2 are the parents of deceased and they are entitled for compensation under the head of loss of dependency and other conventional heads. For the above reason, I am of the opinion that the petitioners have partly proved this issue by producing oral and documentary evidence. Accordingly, I answer the issue No.3 is in the partly affirmative.
21. Issue No.4: The specific contention of the petitioners is that, deceased Suresha was hale and healthy at the time of accident, aged about 26 years, working as a packing 15 MVC.No.2004/2015 SCCH-18 supervisor at Amba Garments, Garepalya, Bengaluru and earning Rs.15,000/-p.m. Further the contention of the petitioners is that, due to unexpected death of Suresh, they have suffered lot and also they have lost their bread earner. On the other hand, the respondent No.1 has disputed the age, occupation and income of the deceased.
22. To prove the age of the deceased, the petitioners have relied upon the notarized copy of Driving License (unmarked). On perusal of the Driving License, wherein the date of birth of the deceased is shown as 01-12-1986 and the same is considered as date of birth of deceased, then it is clear that, as on the date of accident, the deceased was aged about 29 years.
During the course of argument, the counsel for the respondent No.1 argued that, to assess the loss of dependency, the younger parent age has to be considered for applying the multiplier.
23. But at this stage, I come across the Judgment of our Hon'ble Apex Court passed in Civil Appeal No.4497/2015 dated 16 MVC.No.2004/2015 SCCH-18 15-05-2015 (Munna Lal Jain and Another V/s. Vipin Kumar Sharma and Others). On going through the said judgment, the observation of the Hon'ble Apex Court is aptly applicable to the case on hand. Considering the above facts and for the above reason, I am of the opinion that, the contention of the respondent No.1 is not acceptable one. Further as stated above that the deceased was aged about 29 years as on the date of accident. Hence the proper multiplier applicable to the case on hand is 17.
24. In order to prove the occupation and income of the deceased, the petitioners have relied upon the document at Ex-P-11 i.e. copy of pay slip. On perusal of the said document, it appears that, deceased Suresha was working as a supervisor in packing section at Amba Garments, Garepalya, Bengaluru and drawing salary of Rs.15,000/-p.m. Further on perusal of contents of inquest panchanama, wherein the witnesses have stated before the police that deceased Suresh was working as a packing supervisor at Amba Garment, Garepalya, Bengaluru. 17 MVC.No.2004/2015
SCCH-18 Considering the above facts, it is clear that as on the date of accident, deceased Suersha was working as a supervisor at packing section at Amba Garments, Garepalya, Bengaluru. Further on perusal of Ex-P-11 i.e. copy of pay slip for the month of January 2015, it appears that, as on the date of accident, deceased was drawing salary of Rs.15,000/-. But in the above said salary an amount of Rs.3,256/- was added as House Rent Allowance (HRA). Considering the above facts, I am of the opinion that, if the amount of Rs.3,256/- towards HRA is deducted, in total salary then it come to Rs.11,744/-p.m. and the same is taken as Rs.11,500/- p.m. as salary of deceased certainly it would meet the ends of justice.
25. Further in view of observation of the Hon'ble Apex Court in a citation reported in ACJ 2013 Page 1403 (Rajesh and others Vs. Rajbir Singh and others), if 50% of income is added towards income of deceased as future prospectus, then the income of the deceased come to Rs.17,250/-p.m. 18 MVC.No.2004/2015 SCCH-18
26. Further as stated above that, deceased Suresh was a bachelor. Hence, if 50% of total income is deducted towards personal expenses of deceased, on such deduction the total income of deceased come to Rs.8,625/-p.m. (after deduction). Further the income of the deceased is considered as Rs.8,625/-p.m. and multiplier 17 is applied, then the loss of dependency come to Rs.17,59,500/-. Considering the above facts and circumstances of the case, I am of the opinion that, the petitioners are entitled for an amount of Rs.17,60,000/- under the head of loss of dependency.
27. Further the petitioners are the parents, brothers and sisters of deceased. Hence, they are entitled for compensation of Rs.80,000/- under the head of loss of love and affection.
28. Further on perusal of the cause title, it appears that, the petitioners are the residents of Babalada village, Kalburgi district. The contention of the petitioners is that, after post mortem, they have taken the dead body to their native place and conducted the funeral and obsequies ceremony. Considering the 19 MVC.No.2004/2015 SCCH-18 above facts and for the above reason, I am of the opinion that, if an amount of Rs.35,000/- is awarded under the head of transportation of dead body, funeral and obsequies ceremony expenses certainly it would meet the ends of justice.
29. Further the petitioners are entitled for compensation of Rs.25,000/- under the head of loss of estate.
30. The contention of the petitioners is that, after the accident, the injured Suresh was shifted to Sparsha hospital for treatment, wherein he has taken treatment and as an inpatient and died on 10-2-2015 and as such, they have spent huge amount towards treatment and other incidental expenses. To prove the said fact, the petitioners have relied upon the documents at Ex-P-9 and 10 i.e. prescriptions and medical bills. On the other hand, the counsel for the respondent No.1 has disputed genuineness of the said bills and to that effect, the counsel for the respondent No.1 has cross-examined the PW-1 at length, but nothing has been elicited from him to disbelieve those bills. On perusal of Ex-P-3 i.e. certified copy of PM 20 MVC.No.2004/2015 SCCH-18 report, it appears that, Suresh has sustained injuries in the accident which occurred on 5-2-2015 and died on 10-2-2015. Considering the above facts and on perusal of evidence of PW-1 coupled with medical bills, it appears that, the petitioners have spent an amount of Rs.1,40,548/- towards medical expenses. Considering the above facts, I deem it just and reasonable to grant for compensation of Rs.1,40,000/- under the head of medical expenses.
Considering the above facts and for the above reason, I am of the opinion that, the petitioners are entitled for total compensation of Rs.20,40,000/- under the following conventional heads.
Compensation heads Compensation amount Towards loss of dependency Rs. 17,60,000/- Towards loss of love and affection Rs. 80,000/- Towards transportation of dead body, Rs. 35,000/-
funeral & obsequies ceremony expenses
Towards loss of estate Rs. 25,000/-
Towards medical expenses Rs. 1,40,000/-
Total Rs. 20,40,000/-
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31. LIABILITY: On perusal of the contents of petition, it appears that, the respondent No.1 is the insurer and the respondent No.2 is the owner of the vehicle bearing registration No.KA-05-D-5569. Further as stated above that the accident has occurred due to rash and negligent driving of the driver of the said vehicle. Hence, the respondent No.1 and 2 are jointly and severally liable to pay compensation to the petitioners. However, the respondent No.1 being insurer is liable to pay compensation of Rs.20,40,000/- with interest @ 9% p.a. to the petitioners from the date of petition till the date of deposit. Hence, I answer the issue No.4 is in the partly affirmative.
32. ISSUE NO.5: In view of my findings, on the above issues, I proceed to pass the following;
ORDER The claim petition filed by the petitioners is partly allowed with costs.
The petitioners are entitled for compensation of Rs.20,40,000/- with interest at the rate of 9% 22 MVC.No.2004/2015 SCCH-18 p.a. from the date of petition till the date of deposit.
The respondent No.1 and 2 are jointly and severally liable to pay the compensation to the petitioners. However, in view of the policy, the respondent No.1 insurance company is directed to deposit the compensation amount in this tribunal within a month from the date of this order.
Out of the above compensation amount, the petitioner No.1 is entitled for compensation amount of Rs.8,60,000/- and the petitioner No.2 is entitled for compensation amount of Rs.10,00,000/- and the petitioner No.3 to 6 are entitled for compensation amount of Rs.32,500/-each and the petitioner No.7 and 8 are entitled for compensation amount of Rs.25,000/-each.
Out of the compensation amount awarded to the petitioners No.1 and 2, the 50% each of the 23 MVC.No.2004/2015 SCCH-18 awarded amount shall be kept in FD, in their name, in any nationalized/scheduled bank of their choice, for a period of 3 years and remaining amount with accrued interest shall be paid to them through account payee cheques after proper identification.
The entire compensation amount with accrued interest awarded to the petitioner No.3 to 8 shall be paid to them through account payee cheques after proper identification.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
(Dictated to the stenographer, transcribed by her, corrected, signed and then pronounced by me in open court on this 3rd day of February 2016).
(VEERANNA SOMASEKHARA) III ADDL. SMALL CAUSES JUDGE & XXIX ACMM, BENGALURU.
APPENDIX OF EVIDENCE List of witnesses examined on petitioner's side:
P.W.1. Sri.Anandaraya 24 MVC.No.2004/2015 SCCH-18 List of documents exhibited on petitioner's side:
Ex-P1 Certified copy of FIR with compliant Ex-P2 Certified copy of inquest panchanama Ex-P3 Certified copy of PM report Ex-P4 Certified copy of charge sheet Ex-P5 Discharge summary Ex-P6 Certified copy of MVA report Ex-P7 Certified copy of panchanama Ex-P8 Certified copy of sketch Ex-P9 Prescriptions Ex-P10 Medical bills Ex-P11 Copy of pay slip Ex-P12 Notarized copy of voter ID card of petitioner No.1, 5 and 6. to 14 List of witnesses examined on respondent's side:
-None-
List of documents exhibited on respondent`s side:
-Nil-
III ADDL.SMALL CAUSES JUDGE & XXIX ACMM.