Bangalore District Court
Were Not Dependent On The Income Of The vs For Seeking Compensation. She Has ... on 20 March, 2015
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 20th day of March, 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.5324/2013
C/w. M.V.C.No.5325/2013
1. Smt.Swarnamma, ..... PETITIONERS IN
W/o Late Honnachar.D.C., M.V.C.No.5324/2013
Aged about 45 years.
2.Raghunanda @ Raghunatha.H.,
S/o Late Honnachar D.C.,
Aged about 20 years.
Both are Residing at:
No.41/A, Revanna Lay-out,
Revanna Building, Chikkabidarakallu,
Nagasandra Post, Tumkur Road,
Bangalore-73.
(By Sri.G.C.Rajesh, Adv.,)
V/s
1. Nagaraju,
S/o Kadappa, .....RESPONDENTS IN
Allalasandra Village, Hosur Post, M.V.C.No.5324/2013
Bidadi Hobli,
Ramangara District.
(R.C. Owner of Lorry Reg.No.KA-51-
6850)
2 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
2. Shri Ram General Insurance Co.
Ltd.,
No.S-5, 3rd Floor, Monarch Chambers,
Infantry Road,
Bangalore.
(Policy No.10003/31/13/442461
Period:28.11.2012 to 27.11.2013)
(R-1 By Sri.G.Manivannan, Adv.,)
(R-2 By Sri.D.N.Manjunatha Guptha,
Adv.,)
Vinuthan Raju @ Raju Vinuthan, ..... PETITIONER IN
S/o Late Nandaraju. S.V., M.V.C.No.5325/2013
Aged about 30 years,
Residing at:
No.1146/1, 8th Cross,
Maheswarinagara, T.Dasarahalli,
Bangalore-57.
(By Sri.G.C.Rajesh, Adv.,)
V/s
1. Nagaraju, ....RESPONDENTS IN
S/o Kadappa,
M.V.C.No.5325/2013
Allalasandra village, Hosur Post,
Bidadi Hobli,
Ramangara District.
(R.C. Owner of Lorry Reg.No.KA-51-
6850)
2. Shri Ram General Insurance Co.
Ltd.,
No.S-5, 3rd Floor, Monarch Chambers,
Infantry Road,
Bangalore.
(Policy No.10003/31/13/442461
Period:28.11.2012 to 27.11.2013)
(R-1 By Sri. G.Manivannan, Adv.,)
(R-2 By Sri. D.N.Manjunatha Guptha,
3 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
Adv.,)
COMMON JUDGMENT
As per the Order dated 21.03.2014 passed on memo in
M.V.C.No.5324/2013, M.V.C.No.5325/2013 is clubbed with
M.V.C.No.5324/2013 and the common evidence and trial is
conducted in M.V.C.No.5324/2013 and hence,
M.V.C.No.5324/2013 and M.V.C.No.5325/2013 are pending for
consideration and disposal by passing a common judgment.
2. The Petitioners in M.V.C.No.5324/2013 have filed the
said petition as against the Respondents No.1 and 2 under
Section 166 of the Motor Vehicles Act, 1989 praying to award
compensation of Rupees 50,00,000/- with interest and cost, in
respect of death of Paramesha H. S/o Late Honnachar D.C.
3. The brief averments of the Petitioners' case in M.V.C.
No.5324/2013 are as follows;
a) On 07.09.2013 at about 7.00 p.m., the deceased was
traveling in a Motor Cycle bearing Registration No.KA-05-HW-
9973 as a pillion rider from Bangalore towards Mahadeswara Hill
at proceed and reached Sadanaplaya gate Kanakapura -
Bangalore Road, Uttarahalli Hobli, Bangalore South, at that time,
the driver of Lorry bearing Registration No.KA-51-6850 driven
towards Bangalore form Kanakapura side without observing any
traffic rules and regulation and in a rash and negligent manner
and endangering to human life and dashed against the Motor
Cycle and caused the accident. Due to the impact of the accident,
4 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
the deceased was sustained severe head injuries and later
succumbed to fatal injuries on same day at about 08-15 p.m.
b) Soon after the accident, the deceased was shifted to
Sai Ram Hospital, Bangalore, wherein inspite of better and expert
treatment given, deceased was succumbed to fatal injuries on
same day at about 8.15 p.m. and thereafter, the dead body was
shifted to Rajarajeswari Hospital, wherein, post-mortem
examination was conducted and handed over the dead body to
them and they have shifted the dead body to their residence and
conducted funeral and obsequies ceremonies by incurring of
expenses of Rupees 1,50,000/- including hospitalization and
transportation charges etc.,
c) Due to the sudden and sad demise of the deceased in
the tragic accident, they have under going deep mental shock
pain and sufferings and financial hardship.
d) Prior to the date of accident, the deceased was hale
and healthy, aged about 25 years and had no vices and was
earning a sum of Rupees 22,000/- per month as a customer
associates in Accenture Services Pvt. Ltd., Bellandur, Bangalore -
103 and was entire income contributed and maintaining his
family members. Due to the untimely death of the deceased in
the tragic accident, they have put to great financial hardship and
untold misery and depressed.
e) The 1st Petitioner is a mother of the deceased has lost
caretaker son and 2nd Petitioner studying younger brother of the
deceased has lost caretaker elder brother.
5 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
f) Upon the complaint lodged with the jurisdictional
Police, investigation was conducted and charge sheet was laid
against rider of the offending vehicle Lorry bearing Registration
No.KA-51-6850 under Section 279, 337 and 304(A) of IPC. The
accident in issue is occurred due to negligent driving of the said
offending vehicle.
g) The 1st Respondent being RC owner of the said
offending vehicle and 2 nd Respondent being insurer of the
offending vehicle, the policy was in force as on the date of
accident, hence, the Respondents are jointly and severally liable
to pay the compensation to them. Hence, this Petition.
4. In response to the notice, the Respondent No.1 has
appeared before this Tribunal through his Learned Counsel.
Initially, inspite of giving sufficient opportunities, the Respondent
No.1 had not filed the written statement. Later, as per the order
dated 06.01.2015 passed on I.A.No.IX, the written statement filed
by the Respondent No.1 is taken on file.
5. In response to the notice, the Respondent No.2 has
appeared before this Tribunal through its Learned Counsel and
has filed the written statement.
6. The Respondent No.1 inter-alia denying the entire
case of the Petitioners in M.V.C.No.5324/2013, has further
contended as follows;
a) The claim petition filed by the Petitioners is not
maintainable.
6 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
b) The petition is not maintainable either in law or on
facts due to non-joinder of necessary parties as the negligence on
the other vehicle, i.e., Motor Cycle bearing Registration No.KA-05-
HW-9973, i.e., the owner and insurer of the Motor Cycle are not
made as parties to the proceedings.
c) The driver was driving the Lorry bearing Registration
No.KA-51-6850 at moderate speed with following all traffic Rules
and Regulations as on the date of alleged accident, but, the rider
of the Motor Cycle came from opposite direction in a very high
speed, rash and negligent manner and dashed against the Lorry
by the rider of the Motor Cycle himself. Thus, the alleged accident
happened on account of negligence of the rider of the bike.
Despite, the false complaint was given against the driver of the
alleged Lorry having colluded with the Police authority for the
reasons best known to them.
d) The claim made by the Petitioner is highly excessive
and exorbitant, besides, there is no basis for the same.
e) The 1st Respondent is the R.C. Owner of the Lorry
bearing Registration No.KA-51-6850 and same was issued with
the Second Respondent and the said policy was in force at that
time of accident, i.e., vide Policy No.10003/31/442461 and valid
from 28.11.2012 to 27.11.2013. The driver was holding an
effective and valid driving licence at the time of accident and the
alleged vehicle has valid permit as on the date of alleged
accident. Hence, if any liability is fixed by this Hon'ble Court, the
2nd Respondent is liable to pay the compensation in terms of the
policy in favour of the Petitioners. He is not liable to pay any
7 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
compensation to the Petitioners and the Petitioners are not
entitled to any compensation from him. Hence, prayed to dismiss
the petition.
7. The Respondent No.2 inter-alia denying the entire
case of the Petitioners in M.V.C.No.5324/2013, has further
contended as follows;
a) The claim petition filed by the Petitioners under
Section 166 of the M.V. Act is not maintainable either in law or on
facts, as the rider/Petitioner in M.V.C.No.5325/2013 has not
having valid driving licence and his vehicle has not having
insurance as on the date of the accident and that vehicle
numbers and cause of accident has not been mentioned in the
wound certificate and there is a delay in lodging complaint and
FIR, as Petitioners are not the legal heirs of the deceased and all
are majors and Petitioners are not made the party of the other
legal heirs of the deceased to this proceedings, so it creates
doubt regarding involvement of vehicle and alleged accident.
b) The Petitioners are put to strict proof that, they have
not filed any other claim petition before this Hon'ble Court or
before any other Court/s on the same cause of action for the
same accident and in such an event, he is not liable to pay any
amount to the Petitioners, if any, award is passed other than the
award, if any that, is going to be passed by this Hon'ble Court in
the claim petition.
c) The claim petition filed by the Petitioners is not
maintainable for non-joinder and mis-joinder of necessary parties,
8 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
as the insurer and insured of Motor Cycle bearing Registration
No.KA-05-HW-9973 is not made as parties in the claim petition.
d) The vehicle bearing Registration No.KA-51-6850
(Lorry) was insured with it vide policy No.10003/31/13/442461 for
the period of 28.11.2012 to 27.11.2013, But, the liability if any is
strictly subject to the terms and conditions of the policy, permit,
FC and DL and also provisions of M.V. Act.
e) The first Respondent has entrusted the vehicle
knowingly to a person, who did not having valid and effective
driving licence. In view of the fact that, the vehicle being driven
by a non-licensee, hence, there is breach of contract and violation
of the terms and conditions of the policy, permit and FC. Hence, it
is not liable to pay any compensation to the Petitioners.
f) Looking into the age of the deceased and was
sustained injuries in the alleged accident, the amount of
compensation of Rupees 50,00,000/- towards compensation, as
claimed by the Petitioners is exorbitant, excessive and
unreasonable and imaginary to the facts and circumstances of
the case.
g) There is no negligence on the part of the insured
vehicle bearing Registration No.KA-51-6850 (Lorry). Due to the
negligence of the rider of the Motor Cycle only, the alleged
accident was occurred and the deceased was suffered injuries
and dined. Due to his negligence of the rider of the Motor Cycle
and he was riding the vehicle in a rash and negligent manner and
dashed to the insured vehicle, there is a head on collusion
9 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
between two vehicle. Hence, he is not liable to pay any
compensation to the Petitioners.
h) It seeks permission of this Hon'ble Tribunal to contest
the claim petition under Section 170 of the M.V. Act, if the owner
(Respondent No.1) fails to co-operate with it or abstain from
proceeding sand or placed exparte.
i) It seeks protection under Section 147 and 149 of M.V.
Act that, as per Section 134(C) of M.V. Act, 1988, it is mandatory
duty of the insured to furnish the particulars of policy, date, time
and place of alleged accident, particulars of injuries and the
name of the driver and particulars of the driving license, but, the
insured has not complied with this statutory demand. On this
ground also, it is not liable to pay any compensation and the
petition is liable to be dismissed against it for non-compliance of
statutory demand.
j) As per Section 158(6) of M.V. Act, 1988, it is
mandatory duty of the concerned Investigation Officer to forward
all the relevant documents to the insurer within 30 days from the
date of the information of the alleged accident, but, the same has
not been complied with by such officer.
k) In the event of this Hon'ble Tribunal grant any
compensation to the Petitioners as against it, the interest should
not be more than 6% per annum, as per the various decision of
our own Hon'ble High Court of Karnataka and future medical bills
cannot carry any interest as per the decisions of our Hon'ble High
10 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
Court of Karnataka. Hence, prayed to dismiss the claim petition
with exemplary costs.
8. The Petitioner in M.V.C.No.5325/2013 has filed the
said petition as against the Respondents No.1 and 2 under
Section 166 of the Motor Vehicles Act, 1989 praying to award
compensation of Rupees 10,00,000/- with interest and costs.
9. The brief averments of the Petitioner's case in
M.V.C. No.5325/2013 are as follows;
a) On 07.09.2013 at about 7.00 a.m., he was riding a
Motor Cycle bearing Registration No.KA-05-HW-9973 along with
pillion rider from Bangalore towards Mahadeswara Hill at
proceed and reached Sadanapalya Gate, Kanakapura-
Bangalore road, Uttarahalli Hobli, Bangalore South, at that
time, driver of Lorry bearing Registration No.KA-51-6850 driven
towards Bangalore from Kanakapura side without observing
any traffic rules and regulation and in a rash and negligent
manner and endangering to human life dashed against the
Motor Cycle and caused the accident and due to the impact of
the accident, he was sustained severe fractured injuries all
over the body.
b) Soon after the accident, he was shifted to Sai Ram
Hospital, Bangalore, wherein, he was took treatment as an
inpatient from 07.09.2013 to 11.09.2013 and during the course
of treatment, X-rays were taken, multiple fractured injuries are
confirmed, due to which, he underwent surgeries on
08.09.2013 and after better and expert treatment, discharged
11 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
with advise of follow up treatment and bed rest. Still continuing
follow up treatment and as filing of this claim petition, he has
spent Rupees 3,00,000/- medical and nourishment charges
etc.,
c) On account of the said injuries sustained in the
tragic accident have not united and getting un bearable pain
often and he cannot walk or sit squat or carry any weight and
cannot do his routine work as prior and despite of effective
treatment, he would not get earlier physical fitness and he is
suffering pain and permanent disability and other related
effects.
d) Prior to the date of accident, he was hale and
healthy aged about 30 years and had no vices and was earning
sum of Rupees 58,000/- per month as a Implementation Tester
at Thomson Rioters, Yamalur, Bangalore - 37 and was entire
income contributed and maintaining his family members due to
the tragic accident, he cannot attend his work minimum one
year, resulted loss of earning and put to great financial
hardship and untold misery and depressed.
e) Upon the complaint lodged with the jurisdictional
Police, investigation was conducted and charge sheet was laid
against rider of the offending vehicle Lorry bearing Registration
No.KA-51-6850 under Section 279, 337 and 304(a) of IPC. The
accident in issue is occurred due to negligent driving of the
said offending vehicle.
12 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
f) The 1st Respondent being R.C. Owner of the
offending vehicle and 2nd being the insurer of the offending
vehicle, the policy was in force as on the date of accident,
hence, the Respondents are jointly and severally liable to pay
the compensation to him. Hence, this Petition.
10. In response to the notice, the Respondent No.1 has
appeared before this Tribunal through his Learned Counsel.
Initially, inspite of giving sufficient opportunities, the Respondent
No.1 had not filed the written statement. Later, as per the order
dated 06.01.2015 passed on I.A.No.IX, the written statement filed
by the Respondent No.1 is taken on file.
11. In response to the notice, the Respondent No.2 has
appeared before this Tribunal through its Learned Counsel and
has filed the written statement.
12. The Respondent No.1 inter-alia denying the entire
case of the Petitioner in M.V.C.No.5325/2013, has further
contended as follows;
a) The claim petition filed by the Petitioner is not
maintainable.
b) The petition is not maintainable either in lw or on
facts due to non-joinder of necessary parties as the negligence on
the other vehicle, i.e., Motor Cycle bearing Registration No.KA-05-
HW-9973, that is the owner and insurer of the Motor Cycle are not
made as parties to the proceedings.
13 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
c) The driver was driving the Lorry bearing Registration
No.KA-51-6850 at moderate speed with following all traffic Rules
and Regulations as on the date of alleged accident, but, the rider
of the Motor Cycle came from opposite direction in a very high
speed, rash and negligent manner and dashed against the Lorry
by the rider of the Motor Cycle himself. Thus, the alleged accident
happened on account of negligence of the rider of the Bike.
Despite the false complaint was given against the driver of the
alleged Lorry having colluded with the Police Authority for the
reasons best known to them.
d) The claim made by the Petitioner is highly excessive
and exorbitant, besides, there is no basis for the same.
e) The 1st Respondent is the R.C. Owner of the Lorry
bearing Registration No.KA-51-6850 and same was issued with
the Second Respondent and the said policy was in force at the
time of accident, i.e., vide Policy No.10003/31/442461 and valid
from 28.11.2012 to 27.11.2013. The driver was holding an
effective and valid driving licence at the time of accident and the
alleged vehicle has valid permit as on the date of alleged
accident. Hence, if any liability is fixed by this Hon'ble Court, the
1st Respondent is liable to pay the compensation in terms of the
policy in favour of the Petitioner. He is not liable to pay any
compensation to the Petitioner and the Petitioner is not entitled
to any compensation from him. Hence, prayed to dismiss the
claim petition.
14 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
13. The Respondent No.2 inter-alia denying the entire
case of the Petitioner in M.V.C.No.5325/2013, has further
contended as follows;
a) The claim petition filed by the Petitioner under Section
166 of the M.V. Act is not maintainable either in law or on facts,
as the Petitioner has not having valid driving licence and his
vehicle has not having insurance as on the date of the accident
and that vehicle numbers and cause of accident has not been
mentioned in the wound certificate and there is a delay in lodging
complaint and FIR, so it creates doubt regarding involvement of
vehicle and alleged accident.
b) The Petitioner is put to strict proof that, he has not
filed any other claim petition before this Hon'ble Court or before
any other Court/s on the same cause of action for the same
accident and in such an event, it is not liable to pay any amount
to the Petitioner, if any award is passed other than the award, if
any, that is going to be passed by this Hon'ble Court in the claim
petition.
c) The claim petition filed by the Petitioner is not
maintainable for non-joinder and mis-joinder of necessary parties
in the claim petition, as the insurer and insured of Motor Cycle
bearing Registration No.KA-05-HW-9973 are not made as parties
in the claim petition.
d) The vehicle bearing Registration No.KA-51-6850
(Lorry) was insured with it vide policy No.10003/31/13/442461 for
the period of 28.11.2012 to 27.11.2013, But, the liability if any, is
15 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
strictly subject to the terms and conditions of the policy, permit,
FC and DL and also provisions of M.V. Act.
e) The first Respondent has entrusted the vehicle
knowingly to a person, who did not having valid and effective
driving licence. In view of the fact that, the vehicle being driven
by a non-licensee, hence, there is breach of contract and violation
of the terms and conditions of the policy, permit and FC. Hence, it
is not liable to pay any compensation to the Petitioner.
f) Looking into the age of the Petitioner and was
sustained injuries in the alleged accident, the amount of
compensation of Rupees 10,00,000/- towards compensation, as
claimed by the Petitioner is exorbitant, excessive and
unreasonable and imaginary to the facts and circumstances of
the case.
g) There is not negligence on the part of the driver of the
vehicle bearing Registration No.KA-51-6850 (Lorry). Due to the
negligence of the Petitioner and his vehicle only, the alleged
accident was occurred and he was suffered injuries due to his
negligence and he was riding his vehicle in a rash and negligent
manner and dashed to the insured vehicle, there is a head on
collusion between two vehicles. Hence, it is not liable to pay any
compensation to the Petitioner.
h) It seeks permission of this Hon'ble Tribunal to contest
the claim petition under Section 170 of the M.V. Act, if the owner
(Respondent No.1) fails to co-operate with it or abstain from
proceedings and or placed exparte.
16 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
i) It seeks protection under Section 147 and 149 of M.V.
Act, that, as per Section 134(c) of M.V. Act 1988, it is mandatory
duty of the insured to furnish the particulars of policy, date, time
and place of alleged accident, particulars of injuries and the
name of the driver and particulars of the driving license, but,
insured has not complied with this statutory demand and on this
ground also, it is not liable to pay any compensation and the
petition is liable to be dismissed against it for non-compliance of
statutory demand.
j) As per Section 158(6) of M.V. Act 1988, it is mandatory
duty of the concerned Investigation Officer to forward all the
relevant documents to the insurer within 30 days from the date of
the information of the alleged accident. But, the same has not
been complied with by such Officer.
k) In the event of this Hon'ble Tribunal grant any
compensation to the Petitioner as against it, the interest should
not be more than 6% per annum as per the various decisions of
our own Hon'ble High Court of Karnataka and future medical bills
cannot carry any interest as per the decisions of our Hon'ble High
Court of Karnataka. Hence, prayed to dismiss the petition with
exemplary costs.
14. Based on the above said pleadings, my Learned
Predecessor-in-Office has framed the following Issues;
ISSUES
17 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
In M.V.C.No.5324/2013
1. Whether the Petitioners prove that, they
are the dependents or legal
representatives of deceased
Paramesha?
2. Whether the Petitioners prove that, the
accident occurred due to rash and
negligent driving of the Lorry bearing
Reg.No.KA-51-6850 by its driver and in
the said accident, Paramesha died?
3. Whether the Petitioners are entitled for
compensation? If so, how much and
from whom?
4. What Order or Award?
In M.V.C.No.5325/2013
1. Whether the Petitioner proves that the
accident occurred due to rash and
negligent driving of the Lorry bearing Reg.
No.KA-51-6850 by its driver and in the
said accident, the Petitioner sustained
injuries?
2. Whether the Petitioner is entitled for
compensation? If so, how much and from
whom?
3. What Order or Award?
15. In order to prove their case, the Petitioner in M.V.C.
No.5324/2013 have been examined the Petitioner No.1 as
P.W.1 and the Petitioner in M.V.C.No.5325/2013 himself has
been examined as P.W.2 and has also examined one witness as
P.W.2 by filing the affidavits as their examination-in-chief and
18 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
have placed reliance upon Ex.P.1 to Ex.P.26. On the other
hand, the Respondent No.1 himself has been examined as
R.W.3 by filing an affidavit as his examination-in-chief and has
placed reliance upon Ex.R.5 to Ex.R.10. On the other hand, the
Respondent No.2 has examined two witnesses as
R.W.1 and R.W.2 by filing the affidavits as their examination-in-
chief and has placed reliance upon Ex.R.1 to
Ex.R.4.
16. Heard the arguments. The Learned Counsel
appearing for the Respondent No.2 has filed the written
arguments.
17. In support of the submission, the Learned
Counsel appearing for the Petitioner Sri. G.C.Rajesh has
placed reliance upon the decisions reported in,
i) 2013 ACJ 1403 SUPREME COURT OF INDIA
(Rajesh and Others V/s Rajbir Singh and Others), wherein
it is observed that,
Motor Vehicles Act, 1988, Section 168(1) - Just
compensation - Whether Tribunal / court has a duty,
irrespective of the amount claimed, to award a just,
equitable, fair and reasonable compensation - Held:
yes.
Judicial precedent - Rate of decision of Apex Court
on a legal issue is a precedent - But an observation
made, mainly to achieve uniformity and consistency
on a socio-economic issue, though a precedent, can
be and in fact ought to be, periodically revisited.
Quantum - Fatal accident - Principles of assessment
- Future prospects - whether formula for increase of
19 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
income for future prospects adopted for persons
with permanent jobs in Sarla Verma's case 2009 ACJ
1298 (SC), may also be applied to persons who were
self - employed or were engaged on fixed wages -
Held: yes; 50 percent of actual income (after
deduction of tax) for persons below 40 years; 30 per
cent for age group of 40 to 50 years; 15 percent for
age group of 50 to 60 years; But, no addition
thereafter.
Quantum - Fatal accident-Principles of assessment-
Consortium-Loss of - It would be just and reasonable
if Rupees.1,00,000/- is awarded for loss of
consortium.
Quantum-Fatal- accident-Principles of assessment-
Funeral expenses-It would be just, fair and
equitable, under the head of funeral expenses, at
least Rupees.25,000/- may be awarded in the
absence of evidence for higher expenses.
Quantum-Fatal Accident- Deceased aged 33,, clerk
in government school, drawing Rupees 9,520/- p.m.
-Claimants; widow, 3 minor children and mother-
Tribunal awarded Rupees.8,96,500/- which was
enhanced to Rupees.10,17,000/- in appeal - Apex
Court added 50 percent of income towards future
prospects, assessed income at Rupees.14,280/-
p.m., deducted 1/4th for personal expenses of the
deceased, adopted multiplier of 16 and allowed
Rupees.20,56,320/- plus Rupees.1,00,000/- for loss
of consortium, Rupees.1,00,000/- for loss of care and
guidance for minor children and Rupees.25,000/- for
funeral expenses - Award of Rupees 10,17,000/- by
High Court enhanced to Rupees 22,81,320/-.
Words and phrases-Consortium- Consortium is the
right of spouse to the company, care, help, comfort,
guidance, society, solace, affection and sexual
relations with his or her mate.
Words and phrases-Funeral expenses- Term includes
fee paid in crematorium, fee paid for use of space in
20 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
cemetery and expenses on several religious
practices and conventions pursuant to death.
ii) 2013 AIR SCW 3258 (Vimal Kanwar and Others
V/s Kishore Dan & Others), wherein it is observed that,
(A) Motor Vehicles Act (59 of 1988) S.168 -
compensation -Determination- Provident Fund,
Pension and Insurance Receivable by claimants -
Does not come within the periphery of Act to be
termed as 'Pecuniary Advantage' liable for
deduction.
AIR 1998 SC 3191, Followed.
(B) Motor Vehicles Act (59 of 1988) S.168 -
compensation - Determination - Salary receivable
by claimant on compassionate appointment -
Cannot be termed as "Pecuniary Advantage" that,
comes under periphery of Act - Any amount
received on such appointment is not liable for
deduction.
"compassionate appointment" can be one of the
conditions of service of an employee, if a scheme to
that, effect is framed by the employer. In case, that
employee dies in harness i.e., while in service
leaving behind the dependents, one of the
dependents may request for compassionate
appointment to maintain the family of the deceased
employee dies in harness. This cannot be stated to
be an advantage receivable by the heirs on account
of one's death and have no correlation with the
amount receivable under a statute occasioned on
account of accidental death. Compassionate
appointment may have nexus with that death of an
employee while in service But, it is not necessary
that, it should have a correlation with the accidental
death. An employee dies in harness even in normal
course, due to illness and to maintain the family of
the deceased one of the dependents may be entitled
21 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
for compassionate appointment But, that, cannot be
termed as "Pecuniary Advantage" that, comes under
the periphery of Motor Vehicles Act and any amount
received on such appointment is not liable for
deduction for determination of compensation under
the Motor Vehicles Act.
(C) Motor Vehicles Act (59 of 1988) S.168 -
Compensation-Determination - Deduction of income
tax - Estimated income of deceased employee form
salary as shown in last pay certificate was Rupees
9,000/- Specific plea by appellants that, for
Assessment year 1997-98 rate of tax on income
more than Rupees 40,000/- and up to Rupees
60,000/- was 15% and not 20% - Held, High Court
was wrong in deducting 20% from salary of
deceased towards income tax for calculating
compensation.
In the present case, none of the Respondents
brought to the notice of the court that, the income
tax payable by the deceased was not deducted at
source by the employer - State Government. No
such statement was made by an employee of Public
Works Department of the state Government who
placed on record the Last pay Certificate and the
Service book of the deceased. The Tribunal or the
High Court on perusal of the last pay certificate,
have not noticed that, the income tax on the
estimated income of the employee written
statement not deducted from the salary of the
employee during the said month or financial year. In
absence of such evidence, it is presumed that, the
salary paid to the deceased as per last pay
certificate was paid in accordance with law i.e., by
deducting the income-tax on the estimated income
of the deceased for that, month or the financial
year. The appellants have specifically stated that,
Assessment year applicable in the instant case is
1997-98 and not 1996- 97 as held by the High Court.
They have also taken specific plea that, for the
Assessment year 1997-98 the rate of tax on income
more than 40,000/- and up to Rupees. 60,000/- was
15% and no 20% as held by the High Court. Held,
22 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
that, the High Court was wrong in deducting 20%
from the salary of the deceased towards income-tax,
for calculating the compensation. As per law, the
presumption will be that, employer -State
Government at the time of payment of salary
deducted income-tax on the estimated income of
the deceased employee from the salary and in
absence of any evidence, it could be said that, the
salary as shown in the last pay certificate at Rupees
8,920/- should be accepted which if rounded off
comes to Rupees 9,000/- for calculating the
compensation payable to the dependent(s).
(D) Motor Vehicles Act (59 of 1988) S.168 -
compensation -Determination - Deceased, an
Assistant Engineer died in accident at age of 28 ½
years- Grant of compensation of Rupees
29,73,000/- by applying multiplier of 17 would be a
fair, just and reasonable.
18. In support of the submission, the Learned
Counsel appearing for the Respondent No.2
Sri.D.N.Manjunatha Gupta has placed reliance upon the
decisions reported in,
i) ILR 2011 KAR 2827 (Vishwanath Shetty V/s
Vincent Pinto and Another), wherein it is observed that,
MOTOR VEHILCES ACT, 1988 - Accident - Claim for
compensation - Judgment and Award - Tribunal
fastening liability on the owner and absolving the
liability as against the insurer - Appealed against-
Driver not possessing valid and effective driving
licence to drive the offending vehicle on the date of
accident - Breach of terms and conditions of the
policy by the owner - "Necessity for driving licence"
- Discussed - HELD, A person driving any type of
vehicle should possess valid licence to drive a
particular vehicle with proper endorsement in his
driving licence permitting him to drive the type of
23 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
vehicle, whether it is transport vehicle or otherwise.
- FURTHER HELD, Admittedly, the driver of the
offending vehicle did not possess valid driving
licence to drive the transport vehicle as on the date
of accident. In view of this, the Tribunal was justified
in holding that, the first Respondent / owner has
committed breach of terms and conditions of the
policy and therefore the second Respondent /
insurer is not liable to indemnify the first
Respondent / owner. Accordingly, the Tribunal has
absolved the liability of the insurer for payment of
compensation and saddled the same on the first
Respondent / owner. - Impugned Judgment and
Award is justified - MOTOR VEHILCES ACT, 1988 -
SECTION 3 - NECESSITY OF DRIVING LICENCE
DISCUSSED.
ii) ILR 2000 KAR 4416 (Gulam Khader and
Another V/s United India Insurance Co. Ltd., and
Another), wherein it is observed that,
MOTOR VEHILCES ACT, 1988 (CENTRAL ACT NO.59
OF 1988) - SECTION 168 - In cases arising out of
death of a bachelor it is normal to deduct 50 percent
of the income towards his personal expenses -
Guidelines given for adopting multiplier and
computing person expenses.
In so far as bachelors are concerned, normally,
50% is deducted as personal and living expenses
because it is considered that, a bachelor will be
more care free as he has not yet acquired a wife and
children and therefore, tend to spend more on
himself. There is also the possibility of the bachelor
getting married in a short time, in which event also
the contribution to the parents/s and a sibling is
likely to be cut drastically. Further, subject to
evidence to the contrary, the father will have his
own income and will not be considered as a
dependent. Similarly subject to evidence to the
contrary, brothers and sisters are not considered as
dependents, because they will either be
24 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
independent and earning, or married, or be
dependent on the father. Thus even if the deceased
is survived by parents and siblings, the family is
taken as consisting of only two members, that, is the
bachelor and the mother, who is considered as the
only Defendant, and 50% is treated as the personal
and living expenses of the bachelor and 50% as the
contribution to the family. However, where family of
the bachelor was large and Defendant on the
income of the deceased, as in a case where he has a
widowed mother and large number of younger non-
earning sisters or brothers, the contribution to the
family will be taken either as two-third, or calculated
by adopting unit method.
Thus, the following broad criteria can be spelt
out, while determining the deduction on account of
the person and living expenses of a bachelor.
iii) ILR 2008 KAR 1561 (M/s Oriental Insurance
Company Ltd., V/s Shivamma and Others), wherein it is
observed that,
MOTOR VEHILCES ACT, 1988 - SECTION 173(1) -
Appeal against Judgment and Award - legal
representatives of the claimant were not dependent
on the income of the deceased - Finding of the
Tribunal awarding compensation under the head
'Loss of dependency" - Legality of - HELD, If the
claimants were not dependent on the income of the
deceased, compensation under the head 'Loss of
dependency' cannot be granted. At best in such
circumstances, a nominal sum as compensation
towards 'loss to estate' can be granted by applying
an appropriate multiplier - FURTHER HELD, Where
the claimants who are dependents of the deceased,
claim loss of dependency and where the claimants
who are not the dependents of the deceased claim
only loss to estate - ON FACTS, HELD, The claimants
were not the dependents on the income of the
deceased - Therefore, the claimants are entitled to
compensation for loss to estate.
25 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
iv) 2005 (1) T.A.C. 66 HIGH COURT OF CALCUTTA
(Sudhir Bhuiya V/s National Insurance Co. Ltd., and
Another), wherein it is observed that,
(i) Constitution of India, 1950, Article 227 - Motor
Vehicles Act, 1988, Section 166 - Evidence Act,
1872, Section 74 and 77 - Claim application - 'Public
document' - Admissibility of - Petitioner sought for
marking Exhibits three documents, i.e., (a)
disablement certificate (b) discharge certificate and
(c) medical bill without calling any witness to prove
these documents - Tribunal rejected application of
Petitioner - Whether these documents are public
documents within meaning of Evidence Act -
Discharge certificate and medical bill neither
documents forming the acts or record of acts of
authorities nor kept in State as record of private
documents and not public documents - Contents of
original disablement certificate must be proved by
author who certified that, Petitioner suffered
disablement - contents of a document without
examining author being worst pieces of hearsay
evidence - Veracity of contents contained in
documents cannot be taken into consideration
unless the author deposes before Court and offers
himself for cross-examination - Tribunal rightly
refused to mark the documents as Exhibits unless
proved in accordance with provisions of Evidence
Act.
(ii) Evidence Act, 1872 - Proceedings under Motor
Vehicles Act- Technicalities of Evidence Act will not
stand in way of Tribunal in giving appropriate relief -
Tribunal to be guided by basic principles of natural
justice - Principles of exclusions of hearsay evidence
not a technical rule but based on principle that,
evidence must be direct and that, person whose
version will form part of evidence must fact cross-
examination of party against whom such evidence
will be used.
19. My answers to the above said Issues are as follows;
26 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
In M.V.C.No.5324/2013
Issue No.1 : Partly in the
Affirmative,
Issue No.2 : In the Affirmative,
Issue No.2 : Partly in the
Affirmative,
The Petitioners are
entitled for a sum of
Rupees 23,72,123/- as
compensation from
the Respondent No.2.
Issue No.3 : As per the final Order,
In M.V.C.No.5325/2013
Issue No.1 : In the Affirmative,
Issue No.2 : Partly in the
Affirmative,
The Petitioner is
entitled for a sum of
Rupees 66,000/- as
compensation from
the Respondent No.2.
Issue No.3 : As per the final Order,
for the following;
REASONS
20. ISSUE NO.1 in M.V.C.No.5324/13 :- The P.W.1,
who is the Petitioner in M.V.C.No.5324/13, has stated in her
examination-in-chief that, for having death of her son
27 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
Paramesh @ Paramesh Honnachar in the road traffic accident,
they have filed the present claim petition as against the
Respondents for seeking compensation. She has stated that, on
07.09.2013 at about 7.00 p.m., her deceased son Paramesh @
Paramesh Honnachar was traveling in a Motor Cycle bearing
Registration No.KA-05-HW-9973 as a pillion rider from
Bangalore towards Mahadeswara Hill, at proceed and reached
Sadanahalli (Sadanapalya) Gate Kanakapura - Bangalore Road,
Uttarahalli Hobli, Bangalore South and at that time, the driver
of the Lorry bearing Registration No.KA-51-6850 dashed
against the Motor Cycle, wherein, her deceased son was
traveling and caused the accident and on the same day itself,
during the course of treatment, he succumbed to the fatal
injuries. The P.W.1 in her cross-examination has stated that,
she is having three children, namely, Chethan, Paramesh and
Raghunandan and Chethan is residing separately and
Raghunandan, who is the Petitioner No.2, is residing along with
her, who is 22 years old and he is unmarried and her husband
Honnachar is expired 9 years back. She has further stated that,
her deceased son Paramesh @ Paramesh Honnachar is
unmarried and the Petitioner No.2 Raghunandan is studying in
ITI Training. The Petitioners have also produced Ex.P.1 FIR,
Ex.P.2 Statement, Ex.P.6 Inquest, Ex.P.7 Post-Mortem Report,
Ex.P.8 Charge Sheet, Ex.P.13 Ration Card, Ex.P.14 Election ID
Card relating to deceased Paramesh, Ex.P.15 Election ID Card
relating to Petitioner No.1, Ex.P.16 Election ID Card relating to
Raghunandan, i.e., Petitioner No.2, Ex.P.17 Death Certificate
relating to deceased Honnachar and Ex.P.25 ID Card relating to
deceased Paramesh @ Paramesh Honnachar. On perusal of the
said oral version of P.W.1 as well as contents of Ex.P.1, Ex.P.2,
28 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
Ex.P.6, Ex.P.7, Ex.P.8, Ex.P.13, Ex.P.14, Ex.P.15, Ex.P.16,
Ex.P.17 and Ex.P.25, it clearly goes to show that, the deceased
Paramesh S/o Late Honnachar is a son of the Petitioner No.1
and the brother of the Petitioner No.2 and the Petitioner No.1
being a mother and the Petitioner No.2 being the brother of the
said deceased, are the legal representatives of said deceased
Paramesha H. But, based on the same, it cannot be said that,
both the Petitioners are dependents of the said deceased as,
the P.W.1, who is the Petitioner No.1 in her cross-examination
has clearly stated that, the Petitioner No.2 is 22 years old,
which disclosed that, he is a major and he himself maintaining.
Therefore, it cannot be said that, the Petitioner No.2 is also
dependent upon the said deceased. The mother, who is the
Petitioner No.1 alone, is a dependent of the said deceased. The
same has not been disputed by the Respondents while cross-
examining the P.W.1. Accordingly, without much
discussion, I answered Issue No.1 in
M.V.C.No.5324/2013 partly in the Affirmative.
21. ISSUE NO.2 IN M.V.C.NO.5324/2013 and ISSUE
NO.1 IN M.V.C.NO.5325/2013 :- The P.W.1, who is the
Petitioner No.1 in M.V.C.No.5324/2013 has stated in her
examination-in-chief that, on 07.09.2013 at about 7.00 p.m.,
her deceased son Paramesha.H @ Paramesh Honnachar was
traveling in a Motor Cycle bearing Registration No.KA-05-HW-
9973 as a pillion rider from Bangalore towards Mahadeswara
Hill at proceed and reached Sadanahalli (Sadanapalya) Gate
Kanakapura - Bangalore Road, Uttarahalli Hobli, Bangalore
South, at that time, the driver of Lorry bearing Registration
No.KA-51-6850, while over taking a vehicle driven from
29 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
Kanakapura towards Bangalore without observing traffic rules
and regulations and in a rash and negligent manner and
endangering to human life dashed against the deceased Motor
Cycle, wherein, her deceased son was traveling and caused
accident, due to which, her son was sustained severe injuries
and same day during treatment succumbed to fatal injuries.
She has further stated that, soon after the accident, her
deceased son was shifted to Sri Sai Ram Hospital, wherein,
better and expert treatment given due to severe injuries, her
son could be revived and succumbed fatal injuries on same day
at about 8.15 p.m. and thereafter, the dead body was shifted to
Rajarajeshwari Hospital, wherein, the post-mortem examination
was conducted and handed over the deceased body to them.
She has further stated that, the Thalagattapura Police have
registered a case in their Crime No.579/2013 under Section
279, 338 and 304(A) of IPC as against the driver of the
offending Lorry.
22. The P.W.1 in her cross-examination has also clearly
stated that, her son Chethan informed her about said accident
at 7.00 p.m. and at the time of accident, her deceased son
Paramesha was traveling on the Motor Cycle, which was owned
by Vinuthan Raj, who was riding the Motor Cycle at the time of
accident and her deceased son was a pillion rider of the said
Motor Cycle. She has further clearly stated that, on the same
day itself, Vinuthan Raj had lodged complaint before the Police
and immediately after the accident, her deceased son was
shifted to Sri Sai Ram Hospital for treatment and he was alive
for two hours and due to the accidental injuries, he died in the
Hospital.
30 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
23. The P.W.2, who is the Petitioner in
M.V.C.No.5325/2013, has also stated the same evidence of
P.W.1, in his examination-in-chief. He has further stated that,
due to the said accident, he was sustained fracture injuries,
i.e., right femur shaft fracture and right hand ¾ metacarpal
fracture. He has further stated that, soon after the accident, he
was shifted to Sri Sai Ram Hospital, Bangalore, wherein, he was
took treatment as an inpatient from 07.09.2013 to 11.09.2013
and during the course of treatment, X-rays were taken,
multiple fracture injuries are confirmed. He has further stated
that, the Thalagattapura Police have registered a case in their
Crime No.579/2013 under Section 279, 338 and 304(A) of IPC
as against the driver of the offending Lorry.
24. The P.W.2 has further clearly stated in his cross-
examination that, at the time accident, they are proceeding
from Chikkabidarekallu to Mahadeshwara Betta on the National
Highway and width of the said road was about 28 feet and it
was double road. He has further stated that, he was riding the
Motor Cycle about 40 - 50 k.m. per hour and he saw the
offending Lorry about 15 feet distance and the said Lorry was
proceeding on their behind.
25. Both the P.W.1 and P.W.2 have clearly denied the
suggestion put to them that, the said accident was occurred
due to rash and negligence on the part of the P.W.2, who was
rider of the Motor Cycle and not on the part of the offending
Lorry driver.
31 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
26. To corroborate the oral version of P.W.1, the
Petitioners in M.V.C.No.5324/2013 have produced Ex.P.1 F.I.R,
Ex.P.2 Statement, Ex.P.3 Spot Mahazar, Ex.P.4 M.V.I. Report,
Ex.P.5 Spot Sketch, Ex.P.6 Inquest Report, Ex.P.7 P.M. Report,
Ex.P.8 Charge Sheet and Ex.P.17 Death Certificate of
H.Paramesha.
27. To corroborate his oral version, the Petitioner in
M.V.C.No.5325/2013 has produced Ex.P.18 Wound Certificate
and Ex.P.19 Discharge Summary.
28. On perusal of the contents of Ex.P.1 F.I.R and Ex.P.2
Complaint, it clearly goes to show that, when the deceased
Paramesha.H and Petitioner in M.V.C.No.5325/2013 were
proceeding on the Motor Cycle bearing Registration No.KA-05-
HW-9973, which owned by the Petitioner in
M.V.C.No.5325/2013, as a rider and pillion rider, respectively,
on 07.09.2013 at 10.00 p.m., the offending Lorry bearing
Registration No.KA-51-6850 came from their behind on the said
Kanakapura - Bangalore Road with high speed, rash and
negligent manner by its driver and when he had to overtake
their Motor Cycle, at that time, dashed to their Motor Cycle and
due to which, the Petitioner in M.V.C.No.5325/2013 had
sustained grievous injuries on his right leg and head and
deceased Paramesha had sustained grievous injuries on his
head, hands, legs and other parts of the body and with the help
of public, they were shifted to the Hospital through 108
Ambulance and at 8.15 p.m., the said Paramesha died in
Hospital during the course of treatment and in this regard, the
Petitioner in M.V.C No.5325/2013 had lodged the Ex.P.2
32 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
Complaint before the Thalagattapura Police Station and based
on the said Ex.P.2 Complaint, the said Police have registered a
Criminal Case as against the driver of the said offending Lorry
bearing Registration No.KA-51-6850 for the offences punishable
under Section 279, 337, 304(A) of I.P.C under Crime
No.579/2013. It is also clear from the contents of Ex.P.1 F.I.R
and Ex.P.2 Complaint that, there is no delay as such in lodging
the said Complaint by the Petitioner in M.V.C.No.5325/2013.
29. The contents of Ex.P.3 Spot Mahazar, Ex.P.4 M.V.I
Report and Ex.P.5 Spot Hand Sketch clearly disclosed that,
there is no negligence on the part of the rider of the Motor
Cycle, i.e., Petitioner in M.V.C.No.5325/2013, but, the entire
negligence is on the part of the offending Lorry bearing
Registration No.KA-51-6850 by its driver and when by
overtaking, the said offending Lorry driver has caused the said
accident to the Motor Cycle, wherein, the deceased was
proceeding as a pillion rider and Petitioner in
M.V.C.No.5325/2013 was proceeding as a rider. The damages
caused to both the vehicles, which clearly mentioned in M.V.I.
Report, clearly disclosed about the terrific impact of the said
accident.
30. The contents of Ex.P.6 Inquest and Ex.P.7 P.M.
Report further clearly disclosed that, in the said road traffic
accident, deceased Paramesha. H had sustained severe fatal
injuries and as such, he died in the Hospital during the course
of treatment and the opinion of the Doctor is, the cause of
death is shock and haemorrhage due to multiple injuries
sustained. Ex.P.17 Death Certificate further disclosed that, on
33 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
07.09.2013 itself the deceased H.Paramesha is expired. From
this, it is made crystal clear that, due to the accidental injuries
sustained in the said road traffic accident, which was taken
place on 07.09.2013 at about 7.00 p.m., the deceased
Paramesh.H S/o Late Honnachar died in the Hospital on the
same day itself at 8.15 p.m., during the course of treatment.
31. The contents of Ex.P.18 Wound Certificate and
Ex.P.19 Discharge Summary clearly disclosed that, in the said
road traffic accident, the Petitioner in M.V.C.No.5325/2013 had
sustained injuries, like right femur shaft fracture and right hand
¾ metacarpal fracture, which are grievous in nature, which
caused in the road traffic accident, near Talagattapura and on
the same day itself, the said Petitioner was admitted in Sri Sai
Ram Hospital and after taking necessary treatment, he
discharged on 11.09.2013. From this, it is made crystal clear
that, in the said road traffic accident, the Petitioner in
M.V.C.No.5325/2013 had sustained two grievous injuries, i.e.,
fractures and by admitted as an inpatient for five days, he took
treatment to the said injuries in Sri Sai Ram Hospital. It is also
clearly mentioned in the Ex.P.19 Discharge Summary that, the
said Petitioner was admitted in the Hospital with a history of
road traffic accident, when he was traveling by two wheeler hit
by Lorry near Thalagattapura, Nittigare Gate, Kanakapura Main
Road on 07.09.2013 at 7.30 p.m.
32. The Petitioner in M.V.C.No.5325/2013 has also
examined an Orthopedic Surgeon at Bowring and Curzon
Hospital, Bangalore, as P.W.3, who has also stated that, in the
said road traffic accident, the Petitioner had sustained fracture
34 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
shaft of right femur and fracture 3 rd and 4th Metacarpal of right
hand, which are grievous in nature.
33. The contents of Ex.P.8 Charge Sheet further clearly
disclosed that, during the course of investigation, it is found
that, due to high speed, rash and negligent manner of driving
of the offending Lorry bearing Registration No.KA-51-6850 by
its driver on 07.09.2013 at 7.00 p.m., the said road traffic
accident was taken place, when the deceased as a pillion rider
and the Petitioner in M.V.C.No.5325/2013 as a rider, were
proceeding on the Motor Cycle bearing Registration No.KA-05-
HW-9973 on Kanakapura - Bangalore Road, the said offending
Lorry dashed to their Motor Cycle and due to which, they fell
down from the Motor Cycle and sustained grievous injuries to
right leg, right hand and other parts of the body and
immediately, they were shifted to Sri Sai Ram Hospital,
Bangalore for treatment through 108 Ambulance and the said
deceased died in the Hospital during the course of treatment
and as such, the Investigating Officer has filed a charge sheet
as against the driver of the offending Lorry for the offences
punishable under Section 279, 338 and 304(A) of I.P.C. It is
clearly mentioned in the charge sheet that, the name of the
driver of the said Lorry is Narasimhamurthy S/o Late
Thagadappa @ Kariyappa.
34. The Respondent No.2 has examined the said driver
as R.W.1, who has also clearly stated in his examination-in-
chief that, he was the driver of the offending Lorry bearing
Registration No.KA-51-6850 on 07.09.2013. In this regard, he
has also produced Ex.R.1 Driving Licence and Ex.R.2 Extract of
35 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
Driving Licence. He has further clearly stated in his cross-
examination that, he has not challenged the charge sheet filed
by the Police as against him and he has been attending the
Court in the criminal case, which was registered as against
him. Though he has stated that, he has lodged to a complaint
to the Police alleging that, due to the negligence on the part of
the rider of the Motor Cycle bearing Registration No.KA-05-HW-
9973, the said road traffic accident was taken place, in this
regard, he has not produced any documents. If really the said
road traffic accident was not taken place due to his own
negligence, the R.W.1 could have been definitely lodge a
complaint before the jurisdictional Police immediately after the
accident and he could have challenged the charge sheet, which
has already been filed by the Police, before the Hon'ble
Appellate Court. More so, the owner of the said offending Lorry,
who is the Respondent No.1, who himself has been examined
as R.W.3, has also clearly stated in his evidence that, the R.W.1
was a driver of the offending Lorry at the time of accident. He
has also clearly stated in his cross-examination that, he has not
challenged the charge sheet filed by the Police in the criminal
case as against the driver of the offending Lorry and the said
criminal case is pending as against the driver of the Lorry and
he has not given the complaint to the concerned Police alleging
that, due to negligence on the part of the rider of the Motor
Cycle, the said accident was taken place. He has also produced
Ex.R.10 Driving Licence relating R.W.1.
35. From the above said material evidence, both oral
and documentary, it is made crystal clear that, the offending
Lorry bearing Registration No.KA-51-6850 as well as its driver,
36 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
i.e., R.W.1, are very much involved in the said road traffic
accident, wherein, the deceased Paramesh.H succumbed to the
injuries and in M.V.C.No.5325/2013 had sustained two grievous
injuries. To deny or to discard the same, nothing is available on
record on behalf of the Respondents.
36. Under the above said facts and circumstances as
well as the reasons given, this Tribunal has come to the
conclusion that, the Petitioners in both the cases, by adducing
acceptable material evidence, both oral and documentary,
have established that, the accident has occurred due to rash
and negligent driving of the Lorry bearing Registration No.KA-
51-6850 by its driver and in the said accident, deceased
Paramesh.H S/o Late Honnachar succumbed to the injuries and
the Petitioner in M.V.C.No.5325/2013 had sustained two
grievous injuries. Accordingly, I answered Issue No.2 in
M.V.C.No.5324/2013 and Issue No.1 in
M.V.C.No.5325/2013 in the Affirmative.
37. ISSUE NO.3 IN M.V.C.NO.5324/2013 and ISSUE
NO.2 IN M.V.C.NO.5325/2013 :-
38. ISSUE NO.3 IN M.V.C.NO.5324/2013 :- The P.W.1
has stated that, her deceased son aged 28 years at the time of
accident. The Petitioners have produced Ex.P.14 Election ID
Card relating to the deceased, which disclosed that, his date of
birth is on 07.06.1984. The date of accident is on 07.09.2013.
From the said dates, it appears that, at the time of accident,
the deceased was 29 years old.
37 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
39. The P.W.1 in her cross-examination has stated that,
her deceased son was unmarried. From this evidence, it is
made crystal clear that, at the time of accident deceased was
bachelor.
40. The Petitioners have produced Ex.P.15 Election ID
Card relating to the Petitioner No.1, who is the mother of the
deceased. While answering Issue No.1, this Tribunal has
already come to the conclusion that, the Petitioner No.1, who is
the mother of the deceased, can only be considered as
dependent. Ex.P.15 Election ID Card relating to the Petitioner
No.1 disclosed that, her date of birth is on 23.11.1984. The
date of accident is on 07.09.2013. From the said dates, it
appears that, at the time of accident, the Petitioner No.1, who
is the mother of the deceased, was 49 years old.
41. The P.W.1 has stated that, prior to the date of
accident, her deceased son was hale and healthy, hard worker
and was earning a sum of Rupees 22,000/- p.m. as a Customer
Associates at Accenture Services Pvt. Ltd., Pritech Park (SEZ)
Block-7, Outer Ring Road, Bellandur Village, Varthur Hobli,
Bangalore - 103 and he was contributed his entire income and
maintaining family members. She has further stated that, on
account of the sudden and sad demise of her deceased son in
the tragic accident, they are put to great financial hardship and
untold misery and rest of their life has become dark, miserable
and depressed. She has further stated that, her deceased son
was earning Rupees 30,000/- p.m. in the months of January,
March, April, May and June as demonstrate high level
dedication to his employer Accenture Co. Ltd., as per letter
38 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
dated 11.02.2013 as eligible to receive incentive amount. From
the said evidence, it appears that, at the time of accident, one
year was completed to her deceased son to join his job and the
salary was deposited to his HDFC Bank account. She has
further stated that, her deceased son was received salary for
the month of September 2013. She has further stated that,
along with his salary her deceased son was also received
Rupees 8,000/- incentives once in a 2 - 3 months.
42. The Petitioner have produced Ex.P.10 Letter dated
13.07.2012 along with Annexure and Ex.P.11 Letter dated
11.02.2013 along with Annexure, Ex.P.12 Pay Slips 12 in
numbers and Ex.P.26 Statement of Account relating to the
deceased.
43. On perusal of the above said oral version of P.W.1
and the contents of Ex.P.10 to Ex.P.12 and Ex.P.26, it clearly
goes to show that, at the time of accident, the deceased was
working as Customer Associate at Accenture Pvt. Co. Ltd.,
Pritech Park (SEZ) Block-7, Outer Ring Road, Bellandur Village,
Varthur Hobli, Bangalore - 103 and since September 2012 till
the date of accident, i.e., September 2013 and he was drawing
a salary of Rupees 19,719/- during August 2013, i.e., his last
salary, i.e., before the accident. No doubt, the Petitioners have
not examined the employer of the deceased and author of the
said Ex.P.10 to Ex.P.12 and Ex.P.26. But, it no way affect to
consider the avocation and income of the deceased at the time
of accident, as, the Petitioners have produced Ex.P.26
Statement of Bank Account relating to the said deceased,
which clearly disclosed about the regular salary received by the
39 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
deceased from September 2012 to August 2013. From
considering the said material evidence, this Tribunal has come
to the conclusion that, at the time of accident, the deceased
was drawing a net salary of Rupees 19,719/-. Therefore, the
income of the deceased is considered as 19,719/- p.m., at the
time of accident.
44. 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 9,859-50 (50% of Rupees 19,719/-), the income per
month comes to Rupees 29,578-50 p.m. (Rs.19,719/- +
Rs.9,859-50).
45. 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.
Admittedly, the father of the deceased is no more. The
Petitioner No.1, who is a mother of the deceased Paramesha.H,
is a younger parent. The date of birth of the Petitioner No.1 is
on 23.11.1964 as per Ex.P.15 Election Identity Card. The date
of accident is on 07.09.2013. From this, it appears that, the age
of the Petitioner No.1 is 49 years as on the date of the
accident. The corresponding multiplier applicable to the age of
the Petitioner No.1 is 13 as per Sarala Varma's Case.
40 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
46. While answering Issue No.1 in MVC No.5324/2013,
this Tribunal has already come to the conclusion that, the
Petitioner No.1, who is the mother of the deceased, is alone a
dependent of the deceased and the Petitioner No.2, who is a
brother of the deceased, cannot be considered as a dependent
upon the deceased. Therefore, the Petitioner No.1, who is a
mother of the deceased, can only be considered as dependent
of the deceased. Therefore, the said deceased Paramesha.H
left behind only one dependant. Hence, 50% of the income of
the deceased has to be deducted towards his personal and
leaving expenses as per Sarala Varma's Case. Therefore, if
out of Rupees 29,578-50, 50% is deducted, the loss of
dependency comes to Rupees 14,789-25 p.m. (50% of Rs.
29,578-50). The total loss of dependency comes to Rupees
23,07,123/- (Rupees 14,789-25 x 12 x 13). Hence, the
petitioners are entitled for the said sum of Rupees 23,07,123/-
towards loss of dependency.
47. The P.W.1 has stated that, the dead body of her
deceased son was handed over to them and they have shifted
the dead body to their residence and conducted funeral and
obsequious ceremonies by incurring expenses of Rupees
1,50,000/-, including hospitalization, transport charges, etc., 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
41 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
entitled for a sum of Rupees 25,000/- towards loss of love and
affection and Rupees 25,000/- towards funeral expenses.
48. 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 to the
Petitioners. Hence, the petitioners are entitled for Rupees
5,000/- towards transportation expenses of the dead body and
Rupees 10,000/- towards loss of estate.
49. The Petitioners have produced Ex.P.9 Medical Bills 2
in numbers amounting of Rupees 5,324/-. It is clear from the
contents of Ex.P.1 F.I.R, Ex.P.6 inquest, Ex.P.7 P.M. Report
Ex.P.8 Charge Sheet that, the accident was taken place on
07.09.2013 at 7.00 p.m. and the deceased died in Sri Sai Ram
Hospital during the course of treatment at 8.15 p.m. From this,
it appears that, from the time of admission till death, the
treatment was given to the deceased in the said Sri Sai Ram
Hospital. Therefore, the medical expenses covered under
Ex.P.9 Medical Bills 2 in numbers, which is amounting to
Rupees 5,324/- cannot be doubted. Hence, the Petitioners are
entitled for the said medical expenses of Rupees 5,324/-.
50. In this way, the Petitioners are entitled for the
following amount of compensation:-
Sl. Compensation heads Compensation
No. amount
1. Loss of Dependency Rs. 23,07,123-00
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
42 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
dead body
5. Loss of Estate Rs. 10,000-00
6. Medical Expenses Rs. 5,324-00
TOTAL Rs. 23,72,123-
00
51. In view of the above said reasons, the Petitioners
are entitled for total compensation of Rupees 23,72,123/-. 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.
52. ISSUE NO.2 IN M.V.C.NO.5325/2013 :- The
P.W.2, who is Petitioner has stated that, he was aged about 31
years at the time of accident. The Petitioner has produced
Ex.P.21 Pay Slip and Ex.P.24 Driving Licence relating to him,
which disclosed that, his date of birth is on 15.08.1983. The
date of accident is on 07.09.2013. From the said dates, it
appears that, at the time of accident, the Petitioner was 31
years old.
53. The P.W.2 has stated that, prior to the date of
accident, he was hale and healthy and was earning of Rupees
58,000/- p.m. as Implementation Tester at Thomson Rioters,
Yamalur, Bangalore - 37. Ex.P.21 Pay Slip disclosed that, the
Petitioner is working as Implementation Tester in Thomson
Reuters India Services Private Limited and his date of joining in
the said Company is on 20.08.2007. From this, it appears that,
since 20.08.2007 till the date of accident, the Petitioner was
working in the said Company. Ex.P.21 Pay Slip clearly disclosed
that, his Gross Salary is of Rupees 65,892/- and Net Salary is of
43 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
Rupees 58,532/- in the month of August 2013 and Income Tax
of Rupees 4,142/- is deducted in the said Gross Salary. From
this, it is made crystal clear that, at the time of accident, the
Petitioner was drawing Net Salary of Rupees 58,532/- p.m.
54. The P.W.2 has stated that, during the course of
treatment in Sri Sai Ram Hospital, Bangalore, X-ray were taken,
multiple fracture injuries are confirmed and due to which, he
was underwent surgeries on 08.09.2013 with all aseptic
precaution open reduction with internal fixation of titan
interlocking nailing for femur shaft fracture under combined
spinal epidural anesthesia and analgesia and with all aseptic
precaution closed reduction and K-wire fixation for right hand
¾ metacarpal fracture under combined spinal epidural
anesthesia and analgesia was done and after better and expert
treatment he was discharged with an advice of follow up
treatment and bed rest. He has further stated that, he is still
continuing follow-up treatment and bed rest.
55. While answering Issue No.1, this Tribunal has
already come to the conclusion based on Ex.P.18 Wound
Certificate and Ex.P.19 Discharge Summary that, in the said
road traffic accident, the Petitioner had sustained two grievous
injuries and by admitting as an inpatient in Sri Sai Ram Hospital
from 07.09.2013 to 11.09.2013, i.e., for 5 days, he took
treatment to the grievous injuries. It is clear from the contents
of Ex.P.18 Wound Certificate and Ex.P.19 Discharge Summary
that, in the said road traffic accident, the Petitioner had
sustained right femur shaft fracture and right hand ¾
metacarpal fracture and during the course of treatment, on
44 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
08.09.02013 Epidural analgesia catheterization done and with
all aseptic precaution open reduction with internal fixation of
titan interlocking nailing for femur shaft fracture under
combined spinal epidural anesthesia and analgesia also closed
reduction and K-Wire fixation for right hand ¾ metacarpal
fracture under combined spinal epidural anesthesia and
analgesia and he was treated with above mentioned
medications, his condition improved and discharge with advise.
The same has also been stated by the P.W.3, who is an
Orthopedic Surgeon, who has assessed the disability of the
Petitioner. The same has not been disputed by the
Respondents while cross-examining the P.W.2 and P.W.3.
56. The P.W.2 has stated that, the injuries sustained in
the road traffic accident have not united and getting
unbearable pain often due to the severe injuries, he under
gone sever pain for longer period and he cannot walk or stand
or sit squat or carry any movables things and he cannot do his
routine work as prior and he cannot use Indian toilet and
despite of effective treatment, he could not able to get earlier
physical fitness, due to the tragic accident, he under going
deep mental shock pain and sufferings. He has further stated
that, on account of the said injuries, he cannot attend his work
minimum one year, resulted loss of earning and put to great
financial hardship untold misery and depressed.
57. The P.W.3, who is an Orthopedic Surgeon, has
stated that, he recently examined the Petitioner on 19.08.2014
exclusively for disability assessment and on clinical
examination, he was found the disabilities, i.e., difficult to
45 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
stand and bear weight on right leg, difficulty to sit cross
legged, to squat (to use Indian toilet), to climb up and down the
stair case, to walk on the slope, to walk on plain surface, to
kneel. By considering the range of movements of right hip joint
and right knee, loss of power of the muscles acting around
right hip joint region and right knee joint and based on
radiological examination relating to the said fractures and also
based on the findings and guidelines and Gazette Notification,
the P.W.3 has opined that, the Petitioner suffers the permanent
residual physical disability of about 19% to the whole body. The
P.W.3 has also produced Ex.P.27 OPD Record and Ex.P.28 X-
rays films.
58. But, based on the said oral version of P.W.2 and
P.W.3 coupled with the contents of Ex.P.27 and Ex.P.28, it
cannot be believed and accept that, due to the said accidental
injuries, the Petitioner is suffering from permanent residual
physical disability of about 19% to the whole body, as, the
P.W.3 is not a treated Doctor and in this regard, he has clearly
stated in his cross-examination that, he has not personally
treated the Petitioner. He has further clearly stated that,
except the Wound Certificate and Discharge Summary, he has
not gone through any medical documents relating to the said
Sri Sai Ram Hospital. Further, the P.W.3 has not produced the
clinical notes, though he has stated that, on 19.08.2014, he has
prepared the separate clinical notes. He has further stated
that, now the right femur shows partial union with implants in
situ and other fractures are united and two months period is
required for union of fracture for hand bones and 4 - 6 months
is required for union of femur fracture and since partial united
46 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
the fracture of the Petitioner, one year period is lapsed for
union of fracture. More so, the P.W.3 has not produced
disability certificate in favour of the Petitioner. The same has
also been clearly admitted by the P.W.3 in his cross-
examination. More so, the P.W.2 in his cross-examination has
clearly stated that, after the accident, his salary is increased
and his salary is credited to his City Bank and now also he is
regularly attending his office work. From this, it made crystal
clear that, even though in the said road traffic accident, the
Petitioner had sustained grievous injuries, after recovery of
said injuries, the Petitioner has been continuing his same job by
drawing a salary regularly in accordance with service rules.
Therefore, due to the accidental injuries, the Petitioner is not
suffering from such extent of 19% permanent residual physical
disability to the whole body. However, in the said road traffic
accident, the Petitioner had sustained right femur shaft
fracture and right hand ¾ metacarpal fractures and at the time
of accident, he was 31 years old. Further, the P.W.3 has stated
that, the said fractures are united with implants in situ. By
considering the same, this Tribunal feels that, due to the said
accidental injuries, the Petitioner is suffering permanent
residual physical disability of 8% to the whole body, which is
acceptable and believable one.
59. The said permanent residual physical disability of
8% to the whole body comes in the way of future life of the
Petitioner in respect of the functional disability, as he has
stated that, at the time of accident, he was working as
Implementation Tester, which is also clear from the contents of
Ex.P.21 Pay Slip. No doubt, though admittedly, the Petitioner is
47 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
continuing his avocation without any loss of pay and he has
been regularly earning. The said 8% permanent residual
physical disability comes through-out his life as he was 31
years old at the time of accident and the same has also been
clearly stated by the P.W.3. Therefore, the Petitioner is not
entitled for compensation under the head of future loss of
income, but, he is entitled for compensation under the head of
loss of amenities arising out of the permanent residual physical
disability of 8%. In this regard, this Tribunal feels that, it is just,
proper and necessary to award a sum of Rupees 30,000/-
towards loss of amenities of life.
60. As per Ex.P.18 Wound Certificate and evidence of
P.W.2 and P.W.3, the Petitioner had sustained two grievous
injuries, which were fractures. The Petitioner was in the
Hospital as an inpatient for five days in Sri Sai Ram Hospital,
Bangalore as per Ex.P.19 Discharge Summary. Due to the said
injuries, the Petitioner could have definitely suffered a lot of
pain and agony, during the course of treatment. Considering
the said aspects, it is just, proper and necessary to award a
sum of Rupees 30,000/- towards pain and suffering.
61. No doubt, the Petitioner had sustained fracture
injuries, which are grievous in nature and he was in the
Hospital as an inpatient for five days. The P.W.2 has stated in
his examination-in-chief that, on account of the said injuries, he
cannot attend his work minimum one year, resulted loss of
earning and put to great financial hardship, untold misery and
depressed. In this regard, the Petitioner has produced Ex.P.22
and Ex.P.23 Certificates issued by Sri Sai Ram Hospital, which
48 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
disclosed that, he was admitted on 07.09.2013 and discharged
on 12.09.2013 and operation was done on 08.09.2013 and he
required rest for two months and on 08.09.2013, he was
operated and he required rest for one more month from
07.11.2013 in respect of right femur shaft fracture. But, only
based on the said oral version of P.W.2 and contents of Ex.P.22
and Ex.P.23 Certificates, it cannot be believed and accept that,
due to the accidental injuries, the Petitioner could not attend
his work minimum one year and as such, he lost his earnings
during the said period, as, the P.w.2 in his cross-examination
itself has clearly stated that, now also, he is working in the
same office and no authenticated document issued by the
employer is produced by the Petitioner to show that, after the
accident, he was not attended his duty for one year and he was
not received any salary during the said leave period. Further,
the Petitioner has not examined his employer. More so, Ex.P.21
Pay Slip is relating for the month of August 2013, which clearly
disclosed that, the Petitioner had received entire salary for the
said month from its employer. Further, the Petitioner has not
produced the Pay Slip relating for the month of September
2013. From this, it is made crystal clear that, though the
Petitioner had sustained such kind of injuries and though he
was admitted as an inpatient for five days to take treatment to
the said injuries in the Hospital, he was received salary for the
said period and he has not deprived any income. Therefore, the
Petitioner is not entitled for any compensation towards loss of
income during the laid up period.
62. The P.W.2 has stated that, he has spent more than
Rupees 3,00,000/- towards Medical and nourishment charges
49 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
etc., But, the Petitioner has not produced any Medical Bills and
Medical prescriptions. Further, the P.W.2 in his cross-
examination has clearly stated that, the medical expenses
spent by him are reimbursed from his Company through medi-
claim. Therefore, the Petitioner is not entitled for any
compensation towards medical expenses.
63. The P.W.2 has not stated anything about the future
medical expenses. The P.W.3 has stated that, the patient is
advised to undergo another operation for removal of implants
from right femur after achieving complete union at fracture
site. But, the P.W.3 has not stated about the actual future
medical expenses. As this Tribunal has already observed that,
the Petitioner is admittedly continuing his job even after the
accident and he has not sustained any loss of income and the
medical expenses incurred by him is already reimbursed form
his employer through medi-claim as admitted by him. Under
such circumstances, if any future medical treatment is required
to the Petitioner, the said expenses can also be reimbursed by
his employer. Therefore, the Petitioner is not entitled for any
compensation towards future medical expenses.
64. As the Petitioner was taken treatment as an
inpatient for five days, it is necessary to award a sum of
Rupees 2,000/- towards conveyance charges, Rupees 2,000/-
towards attendant charges and Rupees 2,000/- towards food,
nourishment and diet charges, etc.,
65. In this way, the Petitioner is entitled for the following
amount of compensation:-
50 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
Sl.
Compensation heads Compensation
No. amount
1. Loss of amenities of life Rs. 30,000-00
2. Pain and sufferings Rs. 30,000 -00
3. Conveyance Rs. 2,000-00
4. Attendant Charges Rs. 2,000-00
5. Food, Nourishment & Rs. 2,000-00
Diet charges
TOTAL
Rs. 66,000-00
66. In all, the Petitioner in M.V.C.No.5325/2013 is
entitled for total compensation of Rupees 66,000/- along with
interest at the rate of 6% per annum on the above said sum,
from the date of petition till payment.
67. While answering Issue No.2 in M.V.C.No.5324/2013
and Issue No.1 in M.V.C.No.5325/2013, this Tribunal has
already come to the conclusion that, the offending Lorry
bearing Registration No.KA-51-6850 as well as its driver, i.e.,
the R.W.1 are very much involved in the said road traffic
accident, wherein, Paramesh. H. succumbed to the injuries and
the Petitioner in M.V.C.No.5325/2013 had sustained fracture
injuries. The P.W.1 and P.W.2 in their examination-in-chef have
stated that, the Respondent No.1 is a R.C. Owner and the
Respondent No.2 is an insurer of the said offending Lorry and
the Insurance Policy relating to his Lorry was in force as on the
date of the accident and hence, the Respondents are jointly
and severally liable to pay the compensation. The R.W.1 in his
cross-examination has clearly stated that, at the time of
accident, the owner of the Lorry is Nagaraju and his Lorry
having valid permit and FC. He has also produced Ex.R.1
Driving Licence and Ex.R.2 Extract of Driving Licence relating
51 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
to him. The Respondent No.2 has examined its Assistant
Deputy Manager as R.W.2, who has produced Ex.R.4 Insurance
Policy. The Respondent No.1 himself has been examined as
R.W.2, who has clearly stated in his examination-in-chief that,
he is the owner of the offending Lorry bearing Registration
No.KA-51-6850. On perusal of the said material evidence, it
clearly goes to show that, at the time of accident, the
Respondent No.1 is a owner and the Respondent No.2 is an
insurer of the said offending Lorry bearing Registration No.KA-
51-6850 and the Insurance Policy was valid, which covers the
date of accident.
68. The R.W.2 has stated that, the Respondent No.1 is
entrusted the offending vehicle to person, who did not having a
valid and effective driving licence and as per R.C., the insured
vehicle is H.G.V. vehicle and the driver is not having a specific,
valid and effective driving licence authorized to drive the
insured vehicle at the time of accident and in view of the fact
that, the vehicle was driven by non-licensee, hence, there is
breach of contract and violation of terms and conditions of
Insurance Policy. Admittedly, the said offending Lorry is a
heavy goods vehicle. Based on the said oral version of R.W.2, it
cannot be said that, at the time of accident, the R.W.1, who
was a driver of the offending vehicle was not having a valid and
effective driving licence to drive the said Lorry, as, the R.W.3,
who is the Respondent No.1 has produced Ex.R.10 Driving
Licence relating to R.W.1, who was a driver of the offending
Lorry at the time of accident, which disclosed that, the R.W.1 is
authorized to drive the heavy transport vehicle with effect from
10.11.2005. The same has not been disputed by the
52 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
Respondent No.2, while cross-examining the R.W.3. Even
though, Ex.R.1 Driving Licence and Ex.R.2 Extract of Driving
Licence relating to the said R.W.1 do not disclosed that, he is
authorized to drive the heavy goods vehicle specifically, it is
clear from Ex.R.10 Driving Licence relating to him, which has
been produced by the Respondent No.1. From this, it is made
crystal clear that, at the time of accident, the R.W.1, who is a
driver of the Lorry is having a valid and effective driving licence
to drive the said offending Lorry. Therefore, the Respondent
No.1 being a R.C. Owner and Respondent No.2 being an insurer
of the said offending Lorry bearing Registration No.KA-51-6850
are jointly and severally liable to pay the above said
compensation and interest to both 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 aptly applicable to
the present facts and circumstances of the case on hand. On
the other hand, the principles enunciated in the decisions cited
by the Learned Counsel appearing for the Respondent No.2 are
not applicable to the present facts and circumstances of the
case on hand. Hence, Issue No.3 in M.V.C.No.5324/2013
and Issue No.2 in M.V.C.No.5325/2013 are answered
accordingly.
69. ISSUE NO.4 in M.V.C.No.5324/2013 and ISSUE
NO.3 in M.V.C.No.5325/2013 :- For the aforesaid reasons, I
proceed to pass the following,
ORDER
53 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
The petition filed by the Petitioners in M.V.C. No.5324/2013 and 5325/2013 under Section 166 of the Motor Vehicles Act, 1989, are hereby partly allowed with costs.
The Petitioner in M.V.C.No.5324/2013 is entitled for compensation of Rupees 23,72,123/- 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 Petitioner in M.V.C.No.5325/2013 is entitled for compensation of Rupees 66,000/- 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 Respondent No.2 shall deposit the said compensation and interest in this Tribunal, within one month from the date of this Order, in both the cases.
The Petitioners in M.V.C.No.5324/2013 shall share the compensation and interest in the ratio of 80:20.
In the event of deposit of compensation and interest in M.V.C.No.5324/2013, 50% each shall be released in the names of Petitioners through account payee cheques on proper identification and Remaining 50% each shall be kept in FD in the names of the Petitioners, in any nationalized Bank of their choice, for a period of 3 years.
In the event of deposit of compensation and interest in M.V.C.No.5325/2013, the entire amount shall be released in favour of the Petitioner, through account payee cheque, on proper identification.
Advocate's fee is fixed at Rupees 1,000/- in each case.
54 M.V.C.NO.5324/2013C/w M.V.C. NO.5325/2013 (SCCH-7) Original copy of the Judgment shall be kept in M.V.C.No.5324/2013 and the copy of the same shall be kept in M.V.C.No.5325/2013.
Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by me in the open Court on this the 20th day of March, 2015.) (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 : Swarnamma
P.W.2 : Vinuthan Raj @ Raju Vinuthan
P.W.3 : Dr.S.Ramachandra
2. DOCUMENTS MARKED BY THE PETITIONERS :-
Ex.P.1 : True copy of FIR
Ex.P.2 : True copy of Statement
Ex.P.3 : True copy of Spot Mahazar
Ex.P.4 : True copy of MVI Report
Ex.P.5 : True copy of Spot Sketch
Ex.P.6 : True copy of Inquest
Ex.P.7 : True copy of PM Report
Ex.P.8 : True copy of Charge Sheet
Ex.P.9 : Medical Bills (2 in Nos.)
Ex.P.10 : Letter dated 13.07.2012 with annexure
Ex.P.11 : Letter dated 11.02.2013 with annexure
Ex.P.12 : Pay Slips ( 12 in nos.)
Ex.P.13 : Notarised copy of Ration Card
Ex.P.14 : Notarised copy of Election Identity
Card of Paramesh
Ex.P.15 : Notarised copy of Election Identity Card
55 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
of Swaranamma
Ex.P.16 : Notarised xerox copy of Election
Identity Card of Raghu Nandan Ex.P.17 : Notarised copy of Death Certificate of H.Paramesh Ex.P.18 : True copy of Wound Certificate Ex.P.19 : Discharge Summary Ex.P.20 : Notarised copy of Identity Card Ex.P.21 : Pay Slip Ex.P.22 : Certificate dated 07.09.2013 Ex.P.23 : Certificate dated 07.11.2013 Ex.P.24 : Notarised copy of Driving Licence Ex.P.25 : Notarised copy of Identity Card of Paramesh Honnachar Ex.P.26 : Statement of Account Ex.P.27 : OPD Card Ex.P.28 : X-ray films
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
R.W.1 : Narasimha Murthy.T. R.W.2 : Yellappa B.P. R.W.3 : Nagaraju
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
Ex.R.1 : Notarised xerox copy of Driving Licence relating to Narasimha Murthy T. Ex.R.2 : Extract of Driving Licence Ex.R.3 : Notarised xerox copy of Election Identity Card relating to Narasimha Murthy.
Ex.R.4 : True copy of Insurance Policy Ex.R.5 : Notarised xerox copy of Insurance Policy relating to vehicle bearing registration No.KA-51-6850 Ex.R.6 : Notarised xerox copy of Certificate of Registration relating to vehicle bearing registration No.KA-51-6850. Ex.R.7 : Notarised xerox copy of Certificate of Fitness relating to vehicle bearing Registration No.KA-51-6850. Ex.R.8 : Notarised xerox copy of Taxation Card 56 M.V.C.NO.5324/2013 C/w M.V.C. NO.5325/2013 (SCCH-7) relating to vehicle bearing Registration No.KA-51-6850.
Ex.R.9 : Notarised xerox copy of Goods Carriage Permit relating to vehicle bearing Registration No.KA-51-6850. Ex.P.10 : Notarized Xerox copy of Driving Licence relating to Narasimha Murthy S/o Thagadappa (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
AWARD BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA: BANGALORE CITY M.V.C.No.5324/2013 C/w. M.V.C.No.5325/2013
1. Smt.Swarnamma, ..... PETITIONERS IN W/o Late Honnachar.D.C., M.V.C.No.5324/2013 Aged about 45 years.
2.Raghunanda @ Raghunatha.H., S/o Late Honnachar D.C., Aged about 20 years.
Both are Residing at:
No.41/A, Revanna Lay-out, Revanna Building, Chikkabidarakallu, Nagasandra Post, Tumkur Road, Bangalore-73.
(By Sri.G.C.Rajesh, Adv.,) V/s
1. Nagaraju, S/o Kadappa, .....RESPONDENTS IN 57 M.V.C.NO.5324/2013 C/w M.V.C. NO.5325/2013 (SCCH-7) Allalasandra Village, Hosur Post, M.V.C.No.5324/2013 Bidadi Hobli, Ramangara District.
(R.C. Owner of Lorry Reg.No.KA-51- 6850)
2. Shri Ram General Insurance Co. Ltd., No.S-5, 3rd Floor, Monarch Chambers, Infantry Road, Bangalore.
(Policy No.10003/31/13/442461 Period:28.11.2012 to 27.11.2013) (R-1 By Sri.G.Manivannan, Adv.,) (R-2 By Sri.D.N.Manjunatha Guptha, Adv.,) Vinuthan Raju @ Raju S/o Late Nandaraju. Vinuthan, S.V., ..... PETITIONER IN Aged about 30 years, M.V.C.No.5325/2013 Residing at:
No.1146/1, 8th Cross, Maheswarinagara, T.Dasarahalli, Bangalore-57.
(By Sri.G.C.Rajesh, Adv.,) V/s
1. Nagaraju, S/o Kadappa, ....RESPONDENTS IN Allalasandra village, Hosur Post, M.V.C.No.5325/2013 Bidadi Hobli, Ramangara District.
(R.C. Owner of Lorry Reg.No.KA-51- 6850)
2. Shri Ram General Insurance Co. Ltd., No.S-5, 3rd Floor, Monarch Chambers, Infantry Road, Bangalore.
58 M.V.C.NO.5324/2013C/w M.V.C. NO.5325/2013 (SCCH-7) (Policy No.10003/31/13/442461 Period:28.11.2012 to 27.11.2013) (R-1 By Sri. G.Manivannan, Adv.,) (R-2 By Sri. D.N.Manjunatha Guptha, Adv.,) WHEREAS, this petition filed on by the Petitioner/s above named U/s.166 of the M.V.Act praying for the compensation of Rs. (Rupees ) for the injuries sustained by the Petitioner/ Death of in a Motor Accident by Vehicle No. WHEREAS, this claim petition coming up before Indira Mailswamy Chettiyar, IX Addl.Small Causes Judge & XXXIV ACMM. Judge, Member, Bangalore, in the presence of Sri./Smt. Advocate for Petitioner/s and of Sri./Smt. Advocate for respondent.
ORDER The petition filed by the Petitioners in M.V.C. No.5324/2013 and 5325/2013 under Section 166 of the Motor Vehicles Act, 1989, are hereby partly allowed with costs.
The Petitioner in M.V.C.No.5324/2013 is entitled for compensation of Rupees 23,72,123/- 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 Petitioner in M.V.C.No.5325/2013 is entitled for compensation of Rupees 66,000/- 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.
59 M.V.C.NO.5324/2013C/w M.V.C. NO.5325/2013 (SCCH-7) The Respondent No.2 shall deposit the said compensation and interest in this Tribunal, within one month from the date of this Order, in both the cases.
The Petitioners in M.V.C.No.5324/2013 shall share the compensation and interest in the ratio of 80:20.
In the event of deposit of compensation and interest in M.V.C.No.5324/2013, 50% each shall be released in the names of Petitioners through account payee cheques on proper identification and Remaining 50% each shall be kept in FD in the names of the Petitioners, in any nationalized Bank of their choice, for a period of 3 years.
In the event of deposit of compensation and interest in M.V.C.No.5325/2013, the entire amount shall be released in favour of the Petitioner, through account payee cheque, on proper identification.
Advocate's fee is fixed at Rupees 1,000/- in each case.
Original copy of the Judgment shall be kept in M.V.C.No.5324/2013 and the copy of the same shall be kept in M.V.C.No.5325/2013.
Draw award accordingly.
Given under my hand and seal of the Court this day
of 2015.
MEMBER
MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA: BANGALORE.
By the
Petitioner/s Respondent/s
No.1 No.2
60 M.V.C.NO.5324/2013
C/w M.V.C. NO.5325/2013
(SCCH-7)
Court fee paid on Petition
Court fee paid on Power
Court fee paid on I.A.,
Process
Pleaders Fee
Total Rs.
Decree drafted Scrutinized by MEMBER, MACT,
METROPOLITAN AREA: B'LORE Decree Clerk SHERISTEDAR 61 M.V.C.NO.5324/2013 C/w M.V.C. NO.5325/2013 (SCCH-7) 20.03.2015.
Judgment pronounced in open Court (vide separate Order) The petition filed by the Petitioners in M.V.C. No.5324/2013 and 5325/2013 under Section 166 of the Motor Vehicles Act, 1989, are hereby partly allowed with costs as against the Respondent No.2.
The Petitioner in M.V.C.No.5324/2013 is entitled for compensation of Rupees 23,72,123/- 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 Petitioner in M.V.C.No.5325/2013 is entitled for compensation of Rupees 66,000/- 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 Respondent No.2 shall deposit the said compensation and interest in this Tribunal, within one month from the date of this Order, in both the cases.
The Petitioners in M.V.C.No.5324/2013 shall share the compensation and interest in the ratio of 80:20.
In the event of deposit of compensation and interest in M.V.C.No.5324/2013, 50% each shall be released in the names of Petitioners through account payee cheque on proper identification and Remaining 50% each shall be kept in FD in the names of the Petitioners, in any nationalized Bank of their choice, for a period of 3 years.
62 M.V.C.NO.5324/2013C/w M.V.C. NO.5325/2013 (SCCH-7) In the event of deposit of compensation and interest in M.V.C.No.5325/2013, the entire amount shall be released in favour of the Petitioner, through account payee cheque, on proper identification.
Advocate's fee is fixed at Rupees 1,000/- in each case.
Original copy of the Judgment shall be kept in M.V.C.No.5324/2013 and the copy of the same shall be kept in M.V.C.No.5325/2013.
Draw award accordingly.
(INDIRA MAILSWAMY CHETTIYAR) IX Addl.Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
63 M.V.C.NO.5324/2013C/w M.V.C. NO.5325/2013 (SCCH-7)