Bangalore District Court
) Smt.Gowramma vs ) M/S.Reliance General Insurance on 27 February, 2015
BEFORE THE MEMBER PRL.MOTOR ACCIDENT CLAIMS
TRIBUNAL AT BANGALORE
(S.C.C.H. - 1)
DATED THIS THE 27th DAY OF FEBRUARY 2015
PRESENT : SRI H.P.SANDESH, B.A.L, ., LL.B,
MEMBER, PRL. M.A.C.T.
M.V.C. No.617/2014
Petitioners: 1) Smt.Gowramma,
W/o Late Manu S. @ Mahadeva,
Aged about 28 years.
2) Kum.Soundarya,
D/o Late Manu S. @ Mahadeva,
Aged about 11 years.
3) Master Darshan,
D/o Late Manu S. @ Mahadeva,
Aged about 9 years.
4) Smt.Putta Siddamma,
W/o Late Shivalingaiah,
Aged about 65 years,
All are residing at :
Uppara Koppalu Village,
Chandagal Post,
Mandya (Taluk & District)
And alo residing at :
# 118, 3rd Cross,
Muthurayanagara ,
Bangalore -560 059.
Petitioner No.2 and 3 being Minors
Rept. by their mother also natural
guardian herewith petitioner No.1
Smt.Gowramma.
(By Sri. T.Manjunath , Advocates)
SCCH 1 2 MVC No.617/14
Vs.
Respondents: 1) M/s.Reliance General Insurance
Co.Ltd., Motor Claims Hub,
No.28, 5th floor,
Centenary Building,
East Wing, Near Citi Bank,
M.G.Road, Bangalore -560 001.
Policy No.1302722338000436
Cover Note No.313000284254
Policy Valid upto :
25.03.2013 to 24.03.2014
(By Sri Ashok N.Patil, Advocate)
2) M/s.Wise Travel India Pvt.Ltd.,
137, II Cross,
Amarjyothi Layout,
Koramangala Inner Ring Road,
Domlur, Bangaloe -560 071.
(Owner of the car No.KA-03-AA-7188)
.Exparte
******
JUDGMENT
This petition is filed under Section 166 of M.V.Act 1989 seeking compensation of Rs.20,00,000/- for the death of Manu S.@ Mahadeva, husband of first petitioner, father of petitioner No.2 and 3 and son of petitioner No.4.
2. The brief facts of the case are:-
It is the case of the petitioner that on 19.01.2014 at about 7.30 p.m. the deceased was walking near Arvind Garments, Kengeri, Mysore road, Bangalore on the side of the road, at that time, the driver of the car bearing No. KA-03/AA-7188 came in high speed in rash and negligent manner and dashed SCCH 1 3 MVC No.617/14 against the deceased. As a result of the forced impact, the deceased fell down and sustained grievous injuries and died on the spot itself.
3. Immediately after the accident, the petitioner was shifted to Rajarajeshwari Medical College & Hospital for postmortem and thereafter, the petitioners shifted the dead body to their native place and performed the last rites and obsequies by spending Rs.1,00,000/-. The deceased was 41 years at the time of accident and he was working as security guard in Hyundai Showroom and earning Rs.12,000/-p.m. and used to contribute his entire earnings towards the family. Due to the death of their bread winner, the petitioners are thrown on the street. The accident has occurred due to the rash and negligent driving of the car bearing No.KA-03-AA-7188 by its driver. The first respondent being the insurer and second respondent being the R.C. owner of the car are jointly and severally liable to pay the compensation to the petitioners.
4. In pursuance of this claim petition, this Court issued notice against the respondents. Second respondent did not appear before the Court and he was placed as exparte. Respondent No.1 has appeared before the Court through his counsel and has filed written statement denying the petition averments. This respondent has admitted the issuance of policy and the same is valid and the liability, if any, is subject to terms and conditions of the insurance policy
5. It is further contended that the insured has to inform the accident and submit all vehicular documents to this respondent as per section 134 of M.V.Act and the same has not been done and violation of M.V.Act and terms and conditions of the Insurance contract would disentitle the second SCCH 1 4 MVC No.617/14 respondent to claim the indemnification from this respondent. The accident took place due to the negligence of the deceased himself, hence, this respondent is not liable to indemnify the present claim petition and same may be dismissed against this respondent.
6. It is further contended that the insured vehicle is registered as a luxury taxi as on the date of the accident and the said vehicle is not having valid and effective permit and fitness certificate and driver also is not authorized to drive the specified class of vehicle which is involved in the accident. Hence, this respondent is not liable to indemnify the respondent. This respondent may be permitted to contest the matter on all grounds available to the insured under section 170 of M.V.Act. The compensation claimed is excessive and exorbitant. Hence, prayed this Court to dismiss the petition.
7. In view of contentions raised by both the parties, the following issues were framed:-
1) Whether the Petitioners prove that the deceased succumbed to injuries in a Motor Vehicle Accident that occurred on 19.01.2014 at about 7.30 p.m. , Mysore Road, opposite Arvind Garments, Kengeri, Bangalore City, within the jurisdiction of Kengeri Traffic Police Station on account of rash and negligent driving of Car bearing registration No. KA-03/AA-7188 by its driver?
2) Whether the respondent No.1 proves that the accident occurred on account of negligent act of the deceased?
3) Whether the petitioners are entitled for compensation? If so, how much and from whom?
4) What Order?
8. My answer to the above issues is as under:-
SCCH 1 5 MVC No.617/14
1) In the affirmative,
2) In the negative,
3) Partly in the affirmative,
4) As per final order, for the following:-
REASONS
9. Issue No.1 and 2:- Both these issues are taken up together as the point involved in both these issues is similar and the evidence is likely to overlap.
10. It is the case of the petitioners that on 19.01.2014, at about 07.30 pm., the deceased Manu @ Mahadeva was going by walk by the side of Mysore Road towards his house. At that time, car bearing registration No.KA.03/AA.7188 driven by its driver in rash and negligent manner, came on that road in rash and negligent manner so as to endanger human life and safety of others and dashed against Manu @ Mahadeva and others and in the accident, Manu @ Mahadeva having suffered grievous injuries died on the spot.
11. In order to substantiate their case, the petitioners have examined Smt.Gowramma, the wife of the deceased as PW 1. She in her evidence reiterated the averments of the petition. Apart from her oral evidence, she has also produced FIR, Sketch of the spot of accident, Spot Mahazar and Charge Sheet, which are marked as Ex.P.1 to P.3 and P.6.
12. PW 1 has been cross-examined by the counsel for the respondent No.1. In her cross-examination, it is elicited from her that her husband after attending the duty, was proceeding towards house which is situated at SCCH 1 6 MVC No.617/14 Muthurayanahalli through R.V.College Road. She states that her husband was coming by walk. It is suggested to her that her husband was coming on the road and the said suggestion has been denied by her. She volunteers that her husband was proceeding on the footpath. She admits that she did not witness the accident. She says that she does not know as to at whose fault, the accident has occurred. She further says that the company employee Chandru came and told her that her husband met with an accident and that he has been shifted to hospital. She further says that the distance between the company and the accident place is about ½ a kilometer and that when she went to hospital, her husband had already breathed his last.
13. Thus, from the evidence of PW 1, it is clear that she is not an eyewitness to the accident. However, as stated above, she has produced the Police Documents, such as FIR, Sketch, Mahazar and Charge Sheet, which are marked as Ex.P.1 to P.3 and P.6. If we peruse Ex.P.1 FIR and Complaint, the same is lodged by one Harz Ul Hak. According to the complainant, on 19.01.2014, at about 07.30 pm., when himself and others including deceased Manu were proceeding on the left side of road by walk, at that time, the vehilce in question came there and dashed against them and in the accident, companions of the complainant suffered injuries and Manu, died on the spot. Ex.P.2 is the Sketch of the spot of accident, which discloses that the spot of accident is situated on the footpath of Mysore-Bangalore Road. Even Ex.P.3 Spot Panchanama shows that the accident has occurred on the footpath. As per Ex.P.6, the Police after investigation filed charge sheet against the driver of the car for offence under Section 279, 337, 338, 304(A) of IPC read with Section 134(A) and (B) of the MV Act. The respondent No.1 denied the manner in which the accident has occurred and contended that the same has SCCH 1 7 MVC No.617/14 occurred on account of negligence of the deceased himself. But to substantiate the same, the driver of the car in question has not been examined nor produced any cogent evidence. At this juncture, it can be said that it is a case of res ipsa loquitor, since when the deceased and other were proceeding on the footpath by walk, it is the driver of the car, who went to the extreme left side of the road and dashed against them and thereby caused the accident. Hence, I answer issue No.1 in the affirmative and issue No.2 in the negative.
14. Issue No.3:- This issue relates to the claim of compensation regarding the death of Manu @ Mahadeva in the accident in question. It is the case of the petitioners in the petition that at the time of the accident, the deceased Manu @ Mahadeva was working as Security Guard in a Hyundai Showroom, Kengeri, Bengaluru and getting a monthly salary of Rs.12,000/-. In order to substantiate the same, the petitioners have examined the first petitioner as PW 1, who in her evidence has reiterated that the deceased was working as Security Guard at Supreme Enterprises and earning a sum of Rs.10,000/- per month. She has been cross-examined and in her cross- examination, it is elicited from her that her husband was working in the car show room, but she says that she does not know the name of the said car showroom. It is elicited from her that they were paying the salary by way of cash and deducting PF and ESI amount. Further, the petitioners have examined one Chandra Kumar as PW 2, who in his evidence, says that he knew the deceased, who was working in their organization as Security Guard since 6 months and that he was getting a salary of Rs.10,000/- per month. He says that he has produced Salary Certificate, Appointment Order, Attendance Register and Salary Details. He has been cross-examined by the counsel for the respondent No.1. In his cross-examination, he says that he has not issued SCCH 1 8 MVC No.617/14 any appointment order; they used to pay salary by cash. He says that he has produced only statement of salary. He says that they have issued Identity Card in favour of the deceased. The petitioners have produced Ex.P.12 Salary Certificate, Ex.P.15 Attendance Register and Ex.P.16 Salary Details for the month of August'2013 to January'2014.
15. Thus, from a perusal of evidence of PW 1 and PW 2 coupled with the documents ie., Salary Certificate, Attendance Certificate and Salary particulars which are marked as Ex.P.12, 15 and 16, they show that the deceased was working as Security Guard with Supreme Enterprises. But, so far as the salary of the deceased is concerned, if we peruse Ex.P.15 Attendance Register coupled with Ex.P.16 Statement of Wages, one can easily gather that the deceased was appointed on daily wage basis and for that reason, the wages of the deceased, as per the salary certificates, vary from month to month depending upon the days of work. For the month of August'2013, the deceased worked for 27 days and therefore, he has been paid wages of Rs.8,710/- ie., at the rate of Rs.322.00 per day. Likewise, for the month of September, the deceased worked for 20 days and was paid Rs.6,667/-, for the month of October'2013, he worked for 28 days and paid Rs.9,032/-. And thus, the income of the deceased was depending upon his attendance to work. Considering the same, I deem it just and proper to take the income of the deceased at Rs.7,500/- per month at the rate of Rs.250/- per day.
16. With regard to award of loss of future prospectus, the counsel for the respondent No.1, during the counsel of arguments contended, that the Hon'ble High Court of Karnataka, in an unreported judgment in MFA No.4332/2013 (MV) (New India Assurance Co., Ltd., Vs. Sri K.Pushparaj), SCCH 1 9 MVC No.617/14 dated 19.09.2014, has held that in view of the order dated 2.7.2014 in Pushpa Vs. National Insurance Co., Ltd.,, passed by the Supreme Court, awarding loss of future prospectus does not arise and hence, prayed the Court to reject the prayer of the petitioners regarding awarding of future prospectus.
17. This contention of the respondent No.1 cannot be considered, for the reason that the Apex Court in the case of Rajesh Vs. Rajbir Singh' 2013 ACJ 1403 and in Santosh Devi Vs. National Insurance Co., Ltd., and others (2012) 6 SCC 421, has held that even for self employed persons, the Court can consider the future prospectus and mere referring to larger bench to clear the conflicting views, will not render the principles in Rajesh's Case inapplicable and hence, I deem it just and proper to consider the future prospectus in this case also.
18. In view of the principles liaddown in the judgment reported in 2013 ACJ 1403 (Rajesh Vs. Rajbir Singh), the Apex Court held that even if a person is self employed, loss of future prospects has to be taken into consideration and hence, as the deceased was aged 41 years at the time of accident, 30%, from out of his income, has to be taken as loss of future prospects, which works out to Rs.2,250/- and thus the total loss of dependency, including the loss of future prospectus, works out to Rs.9,750/-.
19. As far as the age of the deceased is concerned, it is the case of the petitioners that the deceased was aged 41 years at the time of the accident, This contention of the petitioners is supported by the Post Mortem Report marked as Ex.P.4, which shows the age of the deceased as 41 years and SCCH 1 10 MVC No.617/14 accordingly, the age of the deceased is taken as 41 years, and thus, the multiplier applicable to the case on hand is 14.
20. As seen from the cause title to the petition, the deceased has left behind his wife, two children and mother. As the deceased left behind 4 persons, who were entirely dependant on his income, 1/4th ie., Rs.2,437/- out of his income of Rs.9,750/- has to be given deduction towards the personal expenses of the deceased had he been alive. The same works out to Rs.7,311/- . Thus, the annual loss of dependency works out to Rs.87,732/- and if we multiply the same by 14 multiplier, having regard to the age of the deceased as 41 years at the time of accident, then the petitioners would be entitled to Rs.12,28,248/- under the head loss of dependency on account of the death of the deceased.
21. The Apex Court, in the case reported in 2013 ACJ 5800 (Sanobanu Nazirbhai Mirza Vs. Ahmedbad Municipal Transport Service) and also in the recent judgment reported in AIR 2014 SUPREME COURT 706 (Puttamma Vs. Narayana Reddy) awarded Rs.1,00,000/- as compensation to the family members (children and family members other than wife) for loss of love and affection, deprivation of protection, social security etc., and Rs.50,000/- as compensation to the widow of the deceased for loss of love and affection, pains and sufferings, loss of consortium, deprivation of protection, social security etc., and Rs.10,000/- towards cost incurred on account of funeral and ritual expenses. In this case also, since the deceased has left behind wife, children and mother, I deem it proper to award Rs.1,00,000/- as compensation to the family members (children and family members other than wife) for loss of love and affection, deprivation of protection, social security etc., and SCCH 1 11 MVC No.617/14 Rs.50,000/- as compensation to the widow of the deceased for loss of love and affection, pains and sufferings, loss of consortium, deprivation of protection, social security etc., and Rs.10,000/- towards cost incurred on account of funeral and ritual expenses.
22. The details of compensation I propose to award are as under:
Sl.No. Head of Compensation Amount/Rs
1 Loss of dependency 12,28,248.00
2 Compensation to the family members 1,00,000.00
(children and family members other
than wife) for loss of love and
affection, deprivation of protection,
social security etc.
3 Compensation to the widow of the 50,000.00
deceased for loss of love and affection,
pains and sufferings, loss of
consortium, deprivation of protection ,
social security etc.
4 Cost incurred on account of funeral 10,000.00
and ritual expenses
Total 13,88,248.00
23. The petitioner No.1 is the wife, petitioner No.2 and 3 are the children and petitioner No.4 is the mother of the deceased. Hence, the compensation amount is apportioned amongst them as under:-
Petitioner No.1 - wife -40%
Petitioner No.2 - Daughter -20%
Petitioner No.3 - Son -20%
Petitioner No4. - Mother -20%
24. As far as liability to pay the compensation amount is concerned, though the respondent No.1 admits to have insured the Car SCCH 1 12 MVC No.617/14 No.KA.03/AA.7188 at the time of accident, it is the contended by the respondent No.1 in the statement of objections that the insured vehicle is registered as a luxury taxi as on the date of the accident and the said vehicle was not having valid and effective permit and fitness certificate and also the driver of the car was not having valid and effective driving licence to drive the same and hence, the respondent No.1 is absolved from paying the compensation to the petitioners. The respondent No.1 having taken such a contention in the statement of objections, ought to have proved the same by placing on record cogent and acceptable evidence. Even the driver of the car has not been examined and therefore, the contentions of the respondent No.1 remained as contentions only without proof. Hence, I answer issue No.3 accordingly.
25. Issue No.4:- In view of my answer to issue No.1 to 3 as above, I proceed to pass the following:-
ORDER The petition filed by the petitioners is allowed in part. The petitioners are entitled for compensation of Rs.13,88,248/- with interest at the rate of 9% per annum from the date of petition till realisation.
The respondents No.1 and 2 are jointly and severally liable to pay the award amount to the petitioners. However, the primary liability to pay the compensation amount is fixed on the respondent No.1 - Insurance Company, who shall pay the compensation amount within 2 months from the date of this order.
Compensation amount is apportioned as follows:-
Petitioner No.1 - Wife - 40%
Petitioner No.2 - Daughter - 20%
SCCH 1 13 MVC No.617/14
Petitioner No.3 - Son - 20%
Petitioner No.4- Mother - 20%
Out of the compensation amount so apportioned in favour of the petitioner No.1, 50% is ordered to be invested in high yielding fixed deposit in the name of petitioner No.1 in any of the nationalized or scheduled bank of her choice for a period of 5 years. Remaining amount with entire interest is ordered to be released to her.
As far as petitioners No.2 and 3, who are still minors, their portion of compensation amount is ordered to be invested in high yielding fixed deposit in the name of respective petitioners in any of the nationalized or scheduled bank of the choice petitioner No.1, until they attain majority, with liberty to the petitioner No.1 to withdraw interest once in 3 months on the deposits for the maintenance of minor petitioners No.2 and 3.
Entire compensation amount apportioned in favour of petitioner No.4, who is aged 65 years is ordered to be released to her.
Advocate's fee is fixed at Rs.1,000/-.
(Dictated to the Judgment Writer, directly on computer, corrected and then pronounced by me in Open Court on 27.02.2015) (H.P.SANDESH) MEMBER, PRL.MACT ANNEXURE List of witnesses examined on behalf of the petitioners PW 1 - Smt.Gowramma PW 2 - Chandrakumar List of witnesses examined on behalf of the respondents - Nil List of documents marked on behalf of the petitioners SCCH 1 14 MVC No.617/14 Ex.P.1 - FIR Ex.P.2 - Sketch Ex.P3 - Mahazar Ex.P4 - PM Report Ex.P.5 - Inquest Report Ex.P.6 - Charge Sheet Ex.P.7 - Original ID Card of the deceased Ex.P.8 to 10 - Notarised copy of Aadhar card of 1st and 4th Petitioner and the deceased Ex.P.11 - Original Study certificate of petitioner No.2 and 3 Ex.P.12 - Salary Certificate Ex.P.13 - Death Certificate of deceased Ex.P.14 - Attested copy of the application given by deceased Ex.P.15 - Attested copy of attendance register Ex.P.16 - Salary details of deceased (H.P.SANDESH) MEMBER, PRL.MACT