Bangalore District Court
S. Ramadevi vs Bajaj Allianz Gen Ins Co Ltd on 8 July, 2024
KABC020131972018
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES, AT BENGALURU. (SCCH_25)
-: PRESENT:-
SMT. PRAKRITI KALYANPUR, B.A(L),LL.B., LL.M.
XXIII Additional Small Causes Judge, Bengaluru.
DATED THIS THE 8th DAY OF JULY 2024
MVC No.3054/2018
PETITIONER/S: 1. Smt. S. Ramadevi
W/o Late B.S.Sundara Raj @
B.S.Sunder Raju,
Aged about 52 years,
2. Chayadevi B.S.
D/o Late B.S.Sundara Raj @
B.S.Sunder Raju,
Aged 32 years,
3. Mr. B.S.Gajendra
S/o Late B.S.Sundara Raj @
B.S.Sunder Raju,
Aged about 29 years,
4. Miss. Sridevi B.S.
D/o Late B.S.Sundara Raj @
B.S.Sunder Raju,
Aged about 23 years,
All are residing at
Baktharahalli Village,
2 MVC No.3054/2018
SCCH-25
Melur Post, Shidlaghatta,
Chikkaballapur 562 102.
(By Sri.R. Shivakumar, Advocate.)
V/S
RESPONDENT/S 1. The Branch Manager
Bajaj Alianz Gen. Ins. Co. Ltd.,
Golden Heights, 4th Floor,
No.1/2, 59th C Cross,
4th M Block, Rajajinagar,
Bangalore - 560 010.
Policy No.OG181701180500002315
Valid from 28.03.2018 to 27.03.2019
(Insurer of the Omni Car bearing
Reg.No.KA40M8505)
(By Sri.Manoj Kumar M.R.,
Advocate)
2. Mr. Byregowda K.
S/o Munikrishnappa,
Cheedachikkanahalli Village,
Agalagurki Post,
Chikkaballapura - 562 101.
(By Sri.T.K.Rajagopala, Advocate)
3. Karanataka State Road
Transport Corporation
Represented by its Divisional
Controller
Bangalore Central Division,
Bangalore - 560 027.
(Owner of KSRTC Bus bearing
Reg.No.KA04F0532)
3 MVC No.3054/2018
SCCH-25
(By Sri. M.S.Basavaraju,
Advocate)
4. The Divisional Controller
Karantaka State Road Transport
Corporation,
Bangalore Central Division,
Bangalore - 560 027.
(Owner of KSRTC wrecker No.KA
01F9198)
(By Sri.M.S.Basavaraju,
Advocate)
5. The Regional Manager
The New India Assurance Co.
Ltd.,
TP Claims Hub, No.9/2, 2nd Floor,
Mahalakshmi Chambers,
M.G.Road, Bangalore - 560 001.
Insurance Policy
No.67210031170100003761
Valid from 30.03.2018 to 29.03.2019.
Insurer of Bus bearing Reg.No.KA40F0532.
(By Aruna V. Advocate)
JUDGMENT
The petitioners have filed this Petition under Section 166 of Motor Vehicles Act seeking Compensation of 4 MVC No.3054/2018 SCCH-25 Rs.1,25,00,000/ for the Death of one B.S.Sundara Raj @ B.S.Sunder Raju in a road traffic accident dated 04.05.2018.
2. The case of the Petitioners' in brief is that:
On 04.05.2018 at about 9.15pm, the deceased B.S.Sundara Raj @ B.S.Sunder Raju was standing on the Mud Foot Path Road as a pedestrian near Sunkalamma Temple, NH07 Road, Bagepalli Taluk, Chikkaballapura. At that time, all of a sudden a Omni Car bearing Reg.No.KA40 M8505 driven by its driver with a high speed, in a rash and negligent manner, endangering human life, lost control of his Omni Car and dashed against Pedestrian deceased. Due to the tremendous impact the deceased sustained multiple severe injuries and died on the spot. Immediately he was shifted to Government Hospital, Bagepalli and death was confirmed in the hospital. Post Mortem was done and the dead body was handed over to the deceased relatives. 5 MVC No.3054/2018
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3. It is the further case of the petitioner that, prior to the date of accident the deceased was hale and healthy, working as a Driver at KSRTC Division and earning a sum of Rs.71,500/ per month. Due to sudden demise of the deceased, his wife, son and daughters have been deprived of his contribution towards the entire family. They have spent Rs.1,00,000/ towards conveyance, transportation, obsequies and other religious ceremonies. The petitioner No.1 is the wife, Petitioner Nos.2 to 4 are the daughters and son of the deceased. The accident took place solely due to the rash and negligent driving of the driver of Omni Car. The Bagepalli Police have registered a case against the driver of the Omni Car in Cr.No.0215/2018 for the offences p/u/sec.279, 304A of IPC. Therefore, the respondents being the insurer and the Owner of the offending Omni Car are jointly and severally liable to pay compensation to the petitioners. Hence this petition.
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4. In response to the service of notice, the Respondent Nos.1 to 5 appeared through their respective counsels and filed separate written statements.
5. The objections of the respondent No.1:
It has contended that the accident occurred due to the carelessness of the deceased himself and the codriver cum conductor Prakash and the Mechanic Madhuranath. It has contended that the deceased and his coworkers had stationed the KSRTC bus which had broken down on the road without any indicator and they were not taking proper measures to tow the vehicle to the parking lot even though there was space of 10 feet foot path. It has also contended that the petitioner No.3 is gainfully employed and the petitioner Nos.2 & 4 the daughters of the deceased are married and residing with their respective family. It has also contended that the accident has occurred when the deceased was crossing the road and the petitioners have to seek their remedy before the employer i.e., the KSRTC. It has further contended that the 7 MVC No.3054/2018 SCCH-25 petition is bad for non compliance of Sec.134(c) and 158(6) of M.V. Act. The driver of the Omni Car did not have a valid DL as on the date of accident. It has further submitted that as per the Mahazar the width of the road is 50 feet with 3 lane, the Mahazar also indicates that the Omni Car was on the right track. It has denied the age, occupation, income and compensation claimed by the petitioner is excessive. Hence prayed for dismissal of the petition.
6. The objections of the Respondent No.2:
He has denied all the petition averments except admitting the ownership of the Omni Vehicle. He has stated that the person concerned i.e., the deceased was engaged in fixing the boom to the KSRTC vehicle bearing No.KA01F 9198 and something drastically went wrong and boom turned in such a speed and came towards the road and it struck the deceased, as a result of which he suffered injuries and he died. He has also contended that the boom or the boomer also hit the vehicle of the 2nd respondent due to which the 8 MVC No.3054/2018 SCCH-25 entire front portion of the Omni Car suffered damage. The 2 nd respondent further submitted that his vehicle is no way responsible for the death of the deceased and the negligence is on the part of the KSRTC vehicle and Wrecker. The Omni Car is covered by the policy of the respondent No.1. Hence prayed for the dismissal of the petition.
7. The objections of the Respondent Nos.3 & 4. It has contended that, the petition is bad for misjoinder of necessary parties since the charge sheet is filed against the driver of the Omni Car and the petition is also against the same vehicle. The KSRTC bus bearing Reg.No.KA04F0532 was insured with New India Insurance Co. Ltd., as on the date of accident. The KSRTC bus which had broken down was parked to the extreme left side of the Road with all precautions. After the same information was passed on to the KSRTC workshop at Bangalore a Wrecker was sent. But meanwhile the Omni Car bearing Reg.No.KA40M8505 came from behind in a rash and negligent manner and 9 MVC No.3054/2018 SCCH-25 dashed against the deceased and caused the alleged accident. There is no nexus between the death of Sundaraj and the KSRTC Bus bearing No.KA40F0532. This respondent has also deposited a sum of Rs.4,98,800/ before the competent court under the workmen's compensation Act as the deceased was an employee of the corporation and this respondent is entitled for the said amount. Hence, prayed for dismissal of the petition.
8. The objections of the Respondent No.5. It has contended that there was no negligence on the part of the KSRTC Bus bearing No.KA40F0532. It has admitted the issuance of policy in favour of the KSRTC bus. The petition is bad for non compliance of Sec.134 and 158(6) of the MV Act. The petitioners are the major children of the deceased and they were not depending on the deceased. It has also contended that since the charge sheet is filed against the Omni Car owner and the insured, there is no liability on 10 MVC No.3054/2018 SCCH-25 the part of the driver of the KSRTC Bus and the insurer. Hence prayed for dismissal of the petition.
9. On the above rival contentions of the parties, this court has framed the following issues:
1. Whether the Petitioners prove that, they are the legal heirs of the deceased B.S.Sundara Raj @ B.S.Sunder Raju?
2. Whether the Petitioners prove that, the accident occurred due to rash and negligent act of Driver of Omni Car bearing Reg.No.KA40M8505 as a result B.S.Sundara Raj @ B.S.Sunder Raju sustained injuries and succumbed to the injuries?
3. Whether the Petitioners are entitled for compensation? If so, how much and from whom payable
4. What Order or Award?
10. In order to prove their case, the Petitioners have examined the 3rd Petitioner Sri. B.S.Gajendra - Son of the deceased as PW.1 and got marked 15 documents as per Exs.P.1 to P.15. They have also got examined 11 MVC No.3054/2018 SCCH-25 Mr.Madhuranath S. eye witness/injured as PW.2 and got marked Exs.P.16 to P.18.
On the other side, the Respondent No.2 examined himself as RW.1 and got marked Exs.R.1 to R.6. The Respondent No.1 got examined Sri.Chandrakumar R. Traffic Controller, Depot2, KSRTC, Bangalore as RW.2 and got marked Exs.R.7 to 18. It has also got examined Sri.Nagabhushan K - Depot Manager, Bidadi Depot as RW.3 and did not mark any documents. The Respondent No.2 also got examined Mr.Nagaraj Admin, Jeevan Hospital, Chikkaballapura, as RW.4 and got marked Exs.R.19 to 21. The Respondent No.1 got examined Mr. G. Ramaiah - Depot. Manager, Bagepalli Depot, Chikkaballapura as RW.5 and got marked Ex.R.22. It has also got examined Smt. Kavitha - Jr. Asst and Data Entry Operator, KSRTC, Bangalore Central Division as RW.6 and got marked Exs.R.23 to R.31 and also got examined Smt. Shwetha - AME, Bangalore Central Division, KSRTC as RW.7 and got marked Exs.R.32 to 36. Respondent No.1 got examined its official/Senior Executive 12 MVC No.3054/2018 SCCH-25 as RW.8 and got marked Exs.R.37 to R.41. The Respondent No.3 got examined Mr.Madhu Driver of the Wrecker Bus as RW.9 and during his cross examination counsel for Respondent No.1 got marked Ex.R.42.
11. Heard the Counsels and perused the materials on record.
The counsel for the petitioner has relied upon the following decisions:
1. 2015 ACJ 1441 Khenyei Vs. New India Assurance Co. Ltd., & Ors.
2. 2020 ACJ 2502 : United India Ins. Co. Ltd., Vs. Prabhu And Ors.
3. 2019 ACJ 34: Sebastiani Lakra and Ors. Vs. National Insurance Co. Lt.d, and Anr.
4. 1999 ACJ 10: Helen C. Rebello and ors. Vs. Maharashtra State Road Transaport Corportaon and Anr.
5. 2020 ACJ 2366 : Legal Manager, IFFCO - Tokio Gen. Ins.
Co. Ltd., Vs. Nagendram Lachi and Ors.
6. 2022 ACJ 60 : Rekha and Ors. Vs. National Ins. Co. Ltd., and Ors.
7. 2018 ACJ 497 : R.N.Manjula Vs. Noorulla and Ors.
8. 2008 ACJ 1107 : Lal Dei and Ors. Vs. Himachal Road Transport Corporation and Anr.
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9. 2020 ACJ 1855 : Regional manager, United India Ins. Co. Ltd., Vs. H.C. Nagabhushan and Ors.
10. 2017 ACJ 527 : Jyothirmoy and Ors. Vs. MD, BMTC and Anr.
11. 2021 ACJ 1278 : Dasari Vijayakumari Vs. Shankar Sharan and Ors.
12. 2021 ACJ 1679 : Union of India and Ors. Vs. Usha Rani and Ors.
13. 2019 ACJ 115 : SBI Gen. Ins. Co. Ltd., Vs. Geetu and Ors.
14. 2017 Acj 2051 : National Ins. Co. Ltd., Vs. Rekhaben and Ors.
15. 2013 ACJ 1441 : Vimal Kanwar and Ors, Vs. Kishore Dan and Ors.
16. 2020 ACJ 1099 : Mungeshwar Prasad Rajwade and Anr. Vs. Katharina Minj and Ors.
17. 2020 ACJ 1206 : Nandini Deepak Patil and Ors. Vs. Subba Rao R. and Anr.
18. 2022 ACJ 2024 : Shanti and Ors. Vs. R. Karthikayini and Anr.
19. 2021 ACJ 2081 : New India Assurance Co. Ltd., Vs. Urmila Shukla and Ors.
20. 2017 ACJ 2700 : National Ins. Co. Ltd., Vs. Pranay Sethi and Ors.
21. 2009 (II) ACC 444 (SC): Bimla Devi and Ors. Vs. Himachal Road Transport Corpn and Ors.
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22. 2016 ACJ 1976 : Snehal Saularam Bankar and Ors. Vs. Hanumant Vaman Pednekar and Anr.
23. 2009 ACJ 1725 : Bimla Devi and Ors. Vs. Himachal Road Trans. Corpn. and Ors.
The counel for the Respondent Nos.3 & 4 has reliedupon the following decisions:
1. (2018) 6 SCC 765 : Nishan Singh & Ors. Vs. Oriental Ins.
Co. Ltd., & Ors.
2. 2012 AIR SCW 2241 : Surinder Kumar Arora and Anr. Vs. Dr. Manjoj Bisla and Ors.
3. (2007) 5 SCC 428 : Oriental Ins. Co. Ltd., Vs. Meena Varial and Ors.
4. (2007) 13 SCC 476 : Oriental Ins. Co. Ltd., Vs. Premlata Shukla and Ors.
The counsel for the petitioners and the Respondent No.1 have also filed written arguments.
12. My finding to the above issues are as follows: Issue Nos.1 & 2 : In the affirmative Issue No.3 : In the affirmative, Issue No.4 : As per final order for the Following:
REASONS
13. Issue No.1:
The petitioners in order to prove their relationship, have got examined 3rd petitioner as PW.1. PW.1 has specifically 15 MVC No.3054/2018 SCCH-25 spoken about their relationship in his chiefexamination. Apart from that, to prove the relationship, the Petitioners have produced notarized copies of Voter's ID Card of the deceased and the Aadhar Cards of the petitioners at Ex.P.12 to 15. In the Aadhar Card of the petitioner No.1 her husband's name is mentioned as Sundar Raj and in the Aadhar Cards of the petitioner Nos.2 to 4, their father's name is mentioned as Sundar Raju B.S. These documents are public documents and they have got initial presumptive value under law. These documents have not been seriously disputed by the Respondents. The Respondents have not produced any contrary documents to dispute and rebut the contents of documents produced by the Petitioners. As such, there are no reasons to discard the oral and documentary evidence produced by the Petitioners. Under such circumstances, relying upon the oral evidence of PW.1 and the documents, this court is of the opinion that the Petitioner No.1 is the wife and the petitioner Nos.2 to 4 are the 16 MVC No.3054/2018 SCCH-25 daughters and son of the deceased. Accordingly, Issue No.1 is held in the affirmative.
14. Issue No.2:
The counsel for the respondent Nos.3 & 4 has argued that the petitioner is bound to prove the negligence of the offending vehicle. In this case, the petitioner has filed the case only against the Omni Car owner and insurer and therefore the case as against the respondent Nos.3 to 5 is not maintainable. In support of the same, he has furnished the following decisions:
1. 2012 AIR SCW 2241 : Surinder Kumar Arora and Anr.
Vs. Dr. Manjoj Bisla and Ors.
Wherein the Hon'ble Supreme Court of India has held that 'the onus to prove act of rash and negligent driving by driver of vehicle was on claimants'.
2. (2007) 5 SCC 428 : Oriental Ins. Co. Ltd., Vs. Meena Varial and Ors.
It was held by the Supreme Court of India that once the petition filed under Sec.166 of MV Act, the claimants have the burden of proving the negligence of driver.
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3. (2007) 13 SCC 476 : Oriental Ins. Co. Ltd., Vs. Premlata Shukla and Ors.
It was held by the Supreme Court of India that proof of rashness and negligence on the part of the driver of the vehicle is sine qua non for maintaining an application u/Sec.166 of MV Act.
Similarly, the counsel for petitioner has also furnished the following decisions:
4. 2009 (II) ACC 444 (SC): Bimla Devi and Ors. Vs. Himachal Road Transport Corpn and Ors.
The Hon'ble Supreme Court of India has held that, in MVC cases the standard of burden of proof is preponderance of probability and not beyond reasonable doubt.
5. 2016 ACJ 1976 : Snehal Saularam Bankar and Ors. Vs. Hanumant Vaman Pednekar and Anr.
Wherein the Hon'ble High Court of Bombay has held that claim before Motor Accident Claims Tribunal is neither a criminal case nor a civil case... inquiry before Tribunal is summary inquiry it does not require strict proof of liability.
6. 2009 ACJ 1725 : Bimla Devi and Ors. Vs. Himachal Road Trans. Corpn. and Ors.
The Hon'ble Supreme Court of India has held that, in MVC cases the standard of burden of proof is preponderance of probability and not beyond reasonable doubt.
18 MVC No.3054/2018
SCCH-25 The Petitioners to prove that the accident occurred due to the actionable negligence on the part of the driver of the Omni Car bearing No.KA40M8505 have examined 3rd petitioner as PW.1 and got marked documents as per Exs.P.1 to P.10. PW.1 has reiterated the averments of the petition in his affidavit filed in lieu of his chief examination. During the cross examination of PW.1 by the respondent No.2, he has admitted that there is a bus stop near to the road near accident spot. He has also admitted that there is a foot path. Further admitted that he is working as a Priest (Archaka). During his cross examination by the respondent No.5 he has admitted that the 4th petitioner has got the Job in KSRTC on compassionate ground. But she is not married. The petitioners have also got examined an eyewitness as PW.2 and got marked Exs.P.16 to 18 i.e., Aadhar Card and his ID Cards. He has stated in his chief examination that he was standing with the deceased on the mud footpath when the Omni Car hit them. During his cross examination by the counsel for the Respondent No.2, he has admitted that he 19 MVC No.3054/2018 SCCH-25 was an eye witness to the accident and he was on the spot at the time of accident. He has also admitted that the foot path is about 3 feet above the road. He has stated that foot path and the bus had quite a distance between them. He has stated that the Boomer was not being operated at the time of accident. He has admitted that there was no street lights in the spot. He has stated that the accident occurred when they finished the work on one side and came to the other side to complete the chaining. He has stated that the bus was not parked on the road but it was parked on the service road.
15. On the other side, the Respondent No.2 who is the owner cum Driver of the Omni Car has contended that the accident occurred due to the negligence of the Wrecker and there was no negligence on his part. In order to prove the same, he got examined himself as RW.1 and got marked Exs.R.1 to 6 i.e., two insurance policies, RC, DL, Aadhar Card and voter's ID. During his cross examination by the counsel for the petitioner he has admitted that his vehicle was seized 20 MVC No.3054/2018 SCCH-25 by the police IMV inspection was also done. During his cross examination by the counsel for the Respondent Nos.3 & 4 he has stated that the Wrecker and the bus were on the left side of the road. There was 30 feet of the road still to the right side of the wrecker and the bus. He has also admitted during his cross by the counsel for the respondent No.5 that the traffic was low at the time of accident.
16. The Respondent No.1 i.e., the insurer of the offending vehicle has contended that there was no negligence on the part of the Omni Car. In order to prove the same, it has got examined the traffic Controller, Depot2, KSRTC as RW.2 and got marked Exs.R.7 to R.18. It has also got examined the Depot Manager, Bidadi Depot at Chikkaballapura as RW.3 who has stated that as on the date of accident one Sri Ramaiah was the Work Superintendent of the Department. It has got examined Administrator of Jeevan Hospital, Chikkaballapura as RW.4 and got marked Exs.R.19 to 21. During the cross examination RWs.2 to 4 nothing 21 MVC No.3054/2018 SCCH-25 worthwhile is elicited. It has also got examined Ramaiah Depot Manager, Chikkaballapura as RW.5 and got marked Ex.R.22, who has stated that he gave the report to the KSRTC about the accident as per Ex.R.11. He has admitted the photographs of the Maruthi Van at Ex.R.22 and has also admitted that the Roof Top Corner and Wind Shield of the Car was damaged. He has stated that in the photographs relating to the KSRTC bus at Ex.R.22 the damages are not seen. However, there were scratch marks found on them. The Respondent No.1 also got examined the Junior Asst. & Data entry Operator at KSRTC, Bangalore Central Division as RW.6 and got marked Exs.R.23 to R.31. These are all documents relating to the pensionary benefits of the deceased. It has also got examined AME, Bangalore Central Division, KSRTC as RW.7 and got marked Exs.R.32 to R.36, those are the documents relating to the wrecker. During his cross examination by the counsel for the petitioner, he has stated that if the Wrecker was damaged it would have gone to the workshop.
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17. It has also got examined Senior Executive as RW.8, who has reiterated the averments of the objection in her chief examination affidavit and got marked Exs.R.37 to 41 i.e., authorization letter, copy of Policy, notice issued to insured, postal acknowledgment and insurance claim form. During the cross examination of RW.8, she has admitted the IMV inspection of the wrecker was not done. She has also admitted that none of the police documents stated that the wrecker was in running condition. The Respondent No.3 got examined the Driver of the wrecker as RW.9 who has also given the details of the accident in his chief examination. During his cross examination by the counsel for the petitioner, he has admitted that neither the bus nor the wrecker was in on or ignition condition. He has stated that the deceased people were standing on the right side of the bus. The Omni Car touched the bus from the rear right side of the bus and also hit the deceased. He has also admitted that there was no damage to the wrecker. During his cross examination by the counsel for the respondent No.1, he has 23 MVC No.3054/2018 SCCH-25 stated that, the Ambari Bus was parked on the bus bay on the bus stand after the three lanes of the highway. He has stated that the deceased was standing on the right side of the bus but not on the road. He has admitted that there was space for the Omni Car to pass on the right side of the bus. He has stated that the Omni Car rooftop was damaged when it hit the bus. The Omni Car hit the right side battery box of the Ambari Bus.
18. On perusal of these documents it is clear that the FIR at Ex.P.1 was registered on the same day within hours of the accident on the complaint of Mr.Madhu who was examined as RW.9. The police have conducted the Mahazar of the accident spot as per Ex.P.2 next day of the accident. The IMV report at Ex.P.3 shows that the Omni Car has suffered the damages to the front bumper, front wind screen glass, front body shape was dented and pressed towards inwards, front left side roof top and head lamp assemblies were damaged and the KSRTC bus was also damaged and scratch 24 MVC No.3054/2018 SCCH-25 marks were found on the front right side corner body. The Sketch at Ex.P.4 simply shows the spot of the accident. Ex.P.5 is the Inquest report and Ex.P.6 is the PM report shows that the deceased died due to injuries suffered in the RTA. The charge sheet at Ex.P.7 is filed filed after thorough investigation against the driver of the Omni Car. These are all public documents and have initial presumptive value under law. These documents fully and completely corroborate with the evidence of PW.1.
19. From the evidence it is clear that the KSRTC bus was facing towards Bangalore and the wrecker was infront of it. The deceased, one Prakash and PW.2 were standing on the left side of the bus, after the three lanes of the road. However, during the evidence of PW.2 and RW.9 in some places it is stated as right side of the bus. However, it was made clear later during the evidence of RW.9 that they were standing on the side next to the Road. The contention of the respondent Nos.1 & 2 is that the accident occurred due to the hitting of 25 MVC No.3054/2018 SCCH-25 boomer of the wrecker but, the complaint at Ex.P.1 does not mention anything about any damage to the wrecker. The police have not seized the wrecker and the presence of the wrecker is not mentioned in Ex.P.2. The wrecker was not inspected by the motor vehicle inspector and the damage survey was not done. In support of the same, the counsel for the respondent Nos.3 & 4 has relied on (2018) 6 SCC 765 : Nishan Singh & Ors. Vs. Oriental Ins. Co. Ltd., & Ors.
Wherein the Hon'ble High Supreme Court of India has held that, Maruti Car of appellant which crashed into Truck of respondent from behind, driven negligently without maintaining sufficient distance. It has further observed that there is no seizure of the Truck from the place of occurrence and no technical survey available on record.
Therefore, in the absence of IMV report relating to Wrecker it appears that there was no damage to the Wrecker. The Respondent Nos.1 & 2 have not produced any documents to show or any eye witnesses evidence to show that the Boomer of the wrecker turned towards the road. There is nothing on record to show that the damage to the Omni Car roof top was caused on hitting the Boomer. Moreover the charge sheet is 26 MVC No.3054/2018 SCCH-25 also filed against the driver of the Omni Car and he has pleaded guilty in the criminal case. Therefore, he cannot blow hot and cold by pleading guilty in the criminal case and denying negligence in this case. If he was not negligent he has not challenged the charge sheet nor produced documents relevant to the investigation officer to include the wrecker in the criminal case. On the other hand, the Respondent No.1 has brought on record the internal investigation reports thorough RW.2 from KSRTC which also show the negligence on the part of Omni Driver. The respondent No.1 has also got produced Exs.R.19 to 21 medical records relating to respondent No.2 through RW.4. On perusal of these documents it is clear that the respondent No.2 has suffered only simple injuries but except stating RTA near Sunkalamma he has not given the details of the accident nor did he get it registered as a MLC Case. Therefore, on an analysis of all the facts which have come before the court during the crossexamination of PWs.1 & 2 and RWs.1 to 9 and on perusal of police documents, it is clear that the 27 MVC No.3054/2018 SCCH-25 accident occurred due to the negligence in driving by the Driver of the Omni Car. Accordingly, I answer Issue No.2 in the Affirmative.
20. Issue No. 3:
PW.1 has specifically spoken before this court that due to the untimely death of the deceased, they have lost the bread earner of their family and their loving Father. He has further deposed that they have spent Rs.1,00,000/ towards transportation of dead body and for performing the funeral ceremonies. The petitioners are entitled for compensation as per the following discussion.
Monthly income
21. According to the petitioners, deceased was working as a Driver at KSRTC Division and earning Rs.78,701/ per month. In this regard the petitioners have produced Ex.P.8/Bank Statement. RW.2 has also produced Ex.R.18 pay slip of the deceased. As per Exs.P.8 & R.18, the monthly 28 MVC No.3054/2018 SCCH-25 salary of the deceased comes to Rs.71,852/ without allowances. Since the annual Gross Income comes to Rs.8,62,224/, his gross taxable income after deduction under 80C of IT Act would be Rs.7,12,224/. The first Rs.3,00,000/ are exempt from Tax as per the slab of year 2018. From Rs.3,00,000/ to Rs.5,00,000/ the Tax payable would be Rs.10,000/ @5% and from Rs.5,00,000/ to Rs.7,12,224/ the tax payable would be Rs.42,444/ @20% and the annual tax payable would come around Rs.54,000/, after adding education and other cess, amounting to monthly Income Tax of Rs.4,500/. Therefore, the monthly income of the deceased after tax is Rs.67,352/ per month for calculating the compensation.
Age of the deceased
22. In so far as age of the deceased is concerned, the petitioners have produced Voter's ID Card at Ex.P.11. As per Ex.P.11, the deceased was aged about 42 years as on 01.01.2002. As such, as on the date of accident he was aged 29 MVC No.3054/2018 SCCH-25 about 59 years and it is also mentioned in the PM report at Ex.P.6. Moreover Ex.R.23 also mentions that the deceased had about 1 year 3 months of service left. These are public documents and have got presumptive value under law. This shows that as on the date of accident, the age of the deceased was 59 years. Therefore, his age is considered as 59 years.
(i) LOSS OF DEPENDENCY AND FUTURE PROSPECTS: As per the principles of law laid down in the case of Sarla Verma V/s Delhi Transport Corporation, appropriate multiplier applicable to his age is 9.
23. In the instant case, the deceased had a wife, son and Two daughters. In the cross examination of PW.1, he has admitted that, he is working as a Priest (Archaka), his mother petitioner No.1 is a housewife, Petitioner No.3 is married sister, living in her husband's house and petitioner No.4 unmarried sister, got employment on compassionate ground. 30 MVC No.3054/2018
SCCH-25 The counsel for the respondent No.1 has argued that the petitioner No.4 cannot be considered as dependent as she has got employment. As against this, the counsel for the petitioner has relied on the following decisions:
2017 Acj 2051 : National Ins. Co. Ltd., Vs. Rekhaben and Ors.
Wherein the Hon'ble Supreme Court of India has held that salary earned from employment on compassionate ground cannot be deducted since the source from which compensation on account of accident is claimed and the source from which compassionate employment is offered is completely separate and there is no co relation between these sources.
2013 ACJ 1441 : Vimal Kanwar and Ors, Vs. Kishore Dan and Ors.
Wherein the Hon'ble Supreme Court of India has held that salary earned from employment on compassionate ground cannot be deducted.
Hence, it is clear that a person getting employment on compassionate ground cannot be exempted as dependant only on that ground. From this it can be seen that petitioner Nos.2 & 3 are not dependents on the deceased. Therefore, only Petitioner Nos.1 & 4 are considered as dependents of the deceased. The counsel for the petitioner has argued that the 31 MVC No.3054/2018 SCCH-25 deceased should be given 20% future prospects relying on the following decision;
2021 ACJ 2081 : New India Assurance Co. Ltd., Vs. Urmila Shukla and Ors.
Wherein the Hon'ble Supreme Court of India has held that 20% future prospects given by the Tribunal relying on U.P.Motor Vehicle Rules is valid. However, in the said decision, the statutory instrument was U.P.Motor Vehicles Rules which cannot be applied to a case in Karnataka. As per the decision of Hon'ble Supreme court in National Insurance company Vs Pranay Sethi and others(AIR 2017 S.C 5157) persons aged above 60 years are not entitled to any future prospects. As mentioned above, since the deceased comes in 50-60 years age slab, 15% future prospects is to be added to his monthly income. Therefore, Rs.10,103/- future prospectus is to be added to his monthly income, then it comes to Rs.77,455/-. Since there are 2 to 3 dependents then 1/3rd of the income has to be deducted towards his personal and living expenses, balance comes to Rs.51,636/-. Therefore, the total loss of 32 MVC No.3054/2018 SCCH-25 dependency would be Rs.55,76,688/- (Rs.51,636/- X 12 x 9 = Rs.55,76,688/-).
ii) LOSS OF CONSORTIUM: In Magma General Insurance company Limited Vs. Nanuram (2018) 18 SCC 130, the Hon'ble Apex court has observed "Consortium" is a compendious term, which encompasses spousal consortium, parental consortium and filial consortium. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse".
24. This observation of the Hon'ble Supreme Court is reaffirmed in United Indian Insurance Company Ltd. Vs. Satinder Kaur @ Satvinder Kaur and others, (2021) 11 SCC 780.
33 MVC No.3054/2018
SCCH-25
25. The petitioners are the wife, daughters and son of the deceased, they have lost their loving, care taking husband and father. Therefore, they are also entitled to Rs.40,000/ each, in total Rs.1,60,000/ is awarded under the head of loss of consortium.
iii) TRANSPORTATION AND FUNERAL EXPENSES: PW.1 has stated that he has spent Rs.1,00,000/ towards, transportation of dead body, funeral expenses and obsequies etc.. In this regard the petitioners have not produced any bills pertaining to the above said expenses. However, there are expenses during the death of a person for which documents cannot be maintained. Therefore, in the interest of justice, the petitioners are awarded a sum of Rs.20,000/ under this head.
iv) LOSS OF ESTATE: As mentioned above, the deceased was earning a sum of Rs.67,352/ per month. Out of this, he was spending 1/3rd 34 MVC No.3054/2018 SCCH-25 of his income towards personal expenses. Such being the case, out of this, certainly he would have saved some amount and created estate in favor of the Petitioners. Therefore, the Petitioners are entitled to a sum of Rs.1,00,000/ under the head of loss of estate. As such, in total, the Petitioners are entitled to a sum of Rs.58,56,688/. If it is rounded off it comes to Rs.58,56,700/.
The counsel for the petitioner has furnished the following decisions:
1999 ACJ 10: Helen C. Rebello and ors. Vs. Maharashtra State Road Transaport Corportaon and Anr.
Provident Fund, Pension, Insurance and similarly any cash, Bank balance, shares, Fixed Deposits, etc., are all a "Pecuniary advantage" receivable by the heirs on account of one's death but all these have no correlation with the amount receivable under a statue occasioned only on account of accidental death. Such an amount will not come within the periphery of the Motor Vehicles Act to be termed as "Pecuniary advantage" liable for deduction. 35 MVC No.3054/2018
SCCH-25 2019 ACJ 34: Sebastiani Lakra and Ors. Vs. National Insurance Co. Lt.d, and Anr.
The Hon'ble Supreme Court of India has followed the ratio laid down in Helen C. Rebello's case. 2020 ACJ 2366 : Legal Manager, IFFCO - Tokio Gen. Ins. Co. Ltd., Vs. Nagendram Lachi and Ors.
Wherein the Hon'ble High Court of Karnataka has held that Provident Fund cannot be deducted while computing compensation.
2022 ACJ 60 : Rekha and Ors. Vs. National Ins. Co. Ltd., and Ors.
Wherein the Hon'ble High Court of Bombay has held that Provident Fund cannot be deducted while computing compensation as his legal heirs are entitled to receive the amount irrespective of his accidental death.
2018 ACJ 497 : R.N.Manjula Vs. Noorulla and Ors.
Wherein the Hon'ble High Court of Karnataka has held that Family Pension cannot be deducted while computing compensation as his legal heirs are entitled to receive the amount irrespective of his accidental death.
2008 ACJ 1107 : Lal Dei and Ors. Vs. Himachal Road Transport Corporation and Anr.
Wherein the Hon'ble Supreme Court of India has held that Family Pension cannot be deducted while computing compensation as his legal heirs are entitled to receive the amount irrespective of his accidental death.
2020 ACJ 1855 : Regional manager, United India Ins. Co. Ltd., Vs. H.C. Nagabhushan and Ors. 36 MVC No.3054/2018
SCCH-25 Wherein the Hon'ble High Court of Karnataka has held that Group Insurance scheme cannot be deducted while computing compensation. 2017 ACJ 527 : Jyothirmoy and Ors. Vs. MD, BMTC and Anr.
Wherein the Hon'ble High Court of Karnataka has held that Group Insurance scheme cannot be deducted while computing compensation. 2021 ACJ 1278 : Dasari Vijayakumari Vs. Shankar Sharan and Ors.
Wherein the Hon'ble High Court of Andhrapradesh has held that Family benefits scheme cannot be deducted while computing compensation. 2021 ACJ 1679 : Union of India and Ors. Vs. Usha Rani and Ors.
Wherein the Hon'ble High Court of Jammu & Kashmir has held that exgratia payment cannot be deducted while computing compensation.
2019 ACJ 115 : SBI Gen. Ins. Co. Ltd., Vs. Geetu and Ors.
Wherein the Hon'ble High Court of Delhi has held that exgratia payment cannot be deducted while computing compensation.
2020 ACJ 1099 : Mungeshwar Prasad Rajwade and Anr. Vs. Katharina Minj and Ors.
Wherein the Hon'ble High Court of Chattisgarh has held that house rent allowance cannot be deducted from compensation.37 MVC No.3054/2018
SCCH-25 2020 ACJ 1206 : Nandini Deepak Patil and Ors. Vs. Subba Rao R. and Anr.
Wherein the Hon'ble High Court of Bombay has held that house rent allowance cannot be deducted from compensation.
Therefore, on the perusal of all these decisions it is clear that employees family benefits scheme, life insurance, PF, Pension, GIS, exgratia payment and HRA cannot be deducted from the compensation amount.
LIABILITY
26. The counsel for the Petitioner has relied upon the following decisions:
2022 ACJ 2024 : Shanti and Ors. Vs. R. Karthikayini and Anr.
The Hon'ble High Court of Madras has made observations Based on facts.
2015 ACJ 1441 Khenyei Vs. New India Assurance Co. Ltd., & Ors.
Wherein the Hon'ble Supreme Court of India has held that 'the claimants are entitled to claim entire compensation from both or any one of the joint tortfeasors.
2020 ACJ 2502 : United India Ins. Co. Ltd., Vs. Prabhu And Ors.38 MVC No.3054/2018
SCCH-25 Wherein the Hon'ble high Court of Karnataka has held that 'in the case of composite negligence claimant is entitled to sue and to recover the entire compensation from both or any one of the joint tortfeasors as liability of joint tortfeasors is joint and several.
These decisions are not applicable to the case on hand since, there is no question of joint tortfeasors.
27. This court while considering the Issue No.2 has already come to the conclusion that the accident occurred due to the rash and negligent driving of the driver of Omni Car bearing Reg.No.KA40M8505. It has also held that there was no negligence on the part of the KSRTC bus or Wrecker. Therefore, the Petitioners are entitled for above compensation from the Respondent Nos.1 & 2 i.e., the insurer and the owner of the Omni Car. Though the petitioners have claimed compensation of Rs.1,25,00,000/ but they are entitled for compensation of Rs.58,56,700/ along with interest @ 6% per annum. The Respondents 1 and 2 being the Insurer and the RC owner of the offending vehicle are jointly severally liable to pay the compensation to the petitioners. However, as 39 MVC No.3054/2018 SCCH-25 the policy existed the respondent No.1/Insurer is directed to indemnify the insured respondent No.2 and to deposit the compensation awarded to the petitioners. Accordingly, issue No.3 is held in the affirmative.
28. Issue No.4: For the reasons and discussions made above and finding to the above issues, this Tribunal proceeds to pass the following: ORDER The Petition filed by the Petitioners under Section 166 of Motor Vehicles Act is hereby allowed with cost.
The Petitioners are entitled for Compensation of Rs.58,56,700/ (Rupees Fifty Eight Lakhs Fifty Six Thousand and Seven Hundred only) along with interest at the rate of 6% p.a., from the date of Petition till the date of deposit of the Award amount.
40 MVC No.3054/2018
SCCH-25 The respondent Nos.1 & 2 are jointly and severally liable to pay compensation to the petitioners The Respondent No.1 shall indemnify the Respondent No.2 and deposit the Award amount and interest before this Tribunal within 60 days from the date of this Judgment.
On deposit of the award amount and interest, Rs.20,00,000/ shall be deposited in the name of the petitioner No.1 and
Rs.10,00,000/ shall be deposited in the name of Petitioner No.4 and Rs.5,00,000/ each shall be released in the name of petitioner Nos.2 to 4 and the remaining amount shall be released in the name of petitioner No.1 by way of epayment with proper identification and due acknowledgment.
41 MVC No.3054/2018
SCCH-25 Office is directed to return Rs.4,98,800/ deposited by the Respondent Nos.3 & 4 in this court under the Workmen's Compensation Act.
The Advocate's fee is fixed at Rs.1000/. Draw Award accordingly.
(Dictated to the stenographer on line, revised, corrected and then pronounced in the open court this the 8th day of July 2024.) (PRAKRITI KALAYANPUR) XXIII ASCJ & ACJM, Bangalore ANNEXURE List of witnesses examined on behalf of the Petitioner:
P.W.1 Sri. B.S.Gajendra P.W.2 Sri. Madhuranath S.
List of documents marked on behalf of the Petitioner:
Ex.P1 FIR in Cr.No.215/2018 with complaint Ex.P2 Spor Mahazar Ex.P3 IMV report Ex.P4 Sketch Ex.P5 Inquest Mahazar Ex.P6 PM report 42 MVC No.3054/2018 SCCH-25 Ex.P7 Charge sheet Ex.P8 Bank Account Pass Book Ex.P9 DL Ex.P10 Death Certificate Ex.P11 Voter's ID Card Exs.P12 to P15 4 Aadhar Cards Ex.P16 Aadhar Card Exs.P17 & P18 2 ID Cards List of documents marked on behalf of the Respondents:
RW.1 Mr. K. Byregowda RW.2 Mr. Chandrakumar R. RW.3 Mr. Nagabhushan K. RW.4 Mr. Nagaraj RW.5 Mr. G. Ramaiah RW.6 Smt. Kavitha RW.7 Smt. Shwetha RW.8 Ruchitha Renukesh RW.9 Mr. Madhu
List of documents marked on behalf of the Respondent/s:
Exs.R.1 &2 copy of Two insurance policies Ex.R.3 Notarized copy of registration certificate Ex.R.4 Notarized copy of DL 43 MVC No.3054/2018 SCCH-25 Ex.R.5 Notarized copy of Aadhar Card Ex.R.6 Notarized copy of Voter ID Ex.R.7 Letter dated 29.05.2018 Ex.R.8 Letter dated 29.10.2018 Ex.R.9 Statement of Madhu Ex.R.10 Statement of Madhuranath Ex.R.11 Copy of FIR Ex.R.12 Inspection report Ex.R.13 FIR Ex.R.14 Complaint Ex.R.15 Report Ex.R.16 Rough Sketch Ex.R.17 Accident report form Ex.R.18 Pay slip of deceased Ex.R.19 Patient information sheet Ex.R.20 Initial assessment by consultant (6 pages) Ex.R.21 CT Scan report Ex.R.22 Photocopy of 8 photos Ex.R.23 Letter dated 04.12.2021 with regard to service left to the deceased Ex.R.24 True copy of Badali Work allotted to the deceased (3 pages) Ex.R.25 True copy of Payslip for April 2018 Ex.R.26 Letter dated 11.10.2021 for having deposited WC amount (4 pages) 44 MVC No.3054/2018 SCCH-25 Ex.R.27 True copy of PF amount paid to the deceased (1 page) Ex.R.28 True copy of leave encashment Ex.R.29 True copy of gratuity amount of deceased Ex.R.30 True copy of letter appointing daughter of deceased Ex.R.31 Letter dated 13.12.2021 issued by Account's oficer, Bangalore Central Division Ex.R.32 Authorization letter Ex.R.33 True copy of DL of Sri.Madhu Ex.R.34 True copy of RC of vehicle bearing No.KA01 F9198 Ex.R.35 True copy of vehicle transfer form dated 04.08.2020 issued by Divisional Controller in respect of vehicle bearing No.KA01F9198 model Leyland Wrecker along with two photos Ex.R.36 Letter dated 25.01.2023 issued by Divisional Manager, Bengaluru Central Division Ex.R.37 Authorization letter Ex.R.38 True copy of Policy Ex.R.39 True copy of notice issued to insured Ex.R.40 Postal acknowledgment Ex.R.41 Insurance claimed form Ex.R.42 Photographs of wrecker (PRAKRITI KALYANPUR) XXIII ASCJ & ACJM, Bangalore.