Bangalore District Court
Ina Kousar @ Heena Kousar vs The Managing Director on 12 January, 2021
IN THE COURT OF III ADDL. JUDGE AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, BENGALURU. (SCCH-18)
Dated: This the 12th day of January 2021
Present: SRI.MAHANTESH S.DARGAD
B.Sc., LL.B.,
III ADDL. JUDGE &
MEMBER, MACT
COURT OF SMALL CAUSES,
BANGALORE.
M.V.C.No.5630/2019
Petitioners 1. Ina Kousar @ Heena Kousar,
Wife of Late Saddam Hussen @
Mohammed Saddam,
Aged about 24 years.
2. Zehara Bee,
Daughter of Late Saddam Hussen @
Mohammed Saddam,
Aged about 2 years,
(Petitioner No.2 is a minor represented by
her mother the petitioner No.1 as a
natural guardian)
Petitioner No.1 & 2 residing at No.601,
7th cross, C block,
Subesh Nagar, Bengaluru -560 068.
3. Mohammed Ameeth,
Son of Mohamed Usen,
Aged about 57 years,
2 SCCH-18 MVC 5630/2019
4.Parveentaj,
Wife of Mohammed Ameeth,
Daughter of Saied Iqbal,
Aged about 36 years,
The petitioner No.3 & 4 are residing at
No.57/74, Kittapankuttai, Hosur,
Krishnagiri,
Tamil Nadu.
(By Pleader Shri Lokesh & Lokesh)
V/s
Respondent The Managing Director,
M/s TNSTC Ltd.,
No.12, Ramakrishna Rao,
Selam Region at Dharmapuri,
Bharathipuram,
Tamil Nadu-636 705.
(The Insurer cum owner of the bus
bearing No.TN-29-N-3074)
J U D G M E N T
The petitioners have filed this claim petition against the respondent U/S. 166 of M.V. Act for seeking compensation of Rs.360,00,000/- for the death of Saddam Husen @ Mohammed Saddam, Son of Mohamed Ameeth in a road traffic accident. 3 SCCH-18 MVC 5630/2019
2. The brief contents of petition are as under:
On 29.8.2019 at about 2.30 p.m. Late Saddam Hussen @ Mohammed Saddam, was proceeding in a motorcycle bearing No.KA- 03-JW-4603 along with his wife and daughter on Bengaluru-Hosur NH-7 road, slowly cautiously by observing all the traffic rule and regulations, when they reached near SBR Kalyana Mantapa a bus bearing No.TN-29-N-3074 came with high speed in a rash and negligent manner so as to endanger human life and safety of others and dashed against the motorcycle. Consequently he fell down and sustained grievous injuries and immediately he was taken to OXFORD hospital, but he was succumbed to the injuries on the way to the hospital.
3. The contention of the petitioners is that, deceased Saddam Hussen @ Mohammed Saddam was hale and healthy at the time of accident, aged about 29 years, working in a mutton shop under one Mohammed Irfan Baig at Karimnagar and getting an 4 SCCH-18 MVC 5630/2019 income of Rs.18,000/- per month and he was contributing his entire income towards the welfare of the family. Due to demise of Saddam Hussen @ Mohammed Saddam, petitioners have suffered a lot and lost their bread earner. The accident occurred due to rash and negligent driving of the driver of the bus bearing No.TN-29-N- 3074 and as such, the respondent is liable to pay compensation to the petitioners. Contending the above facts, they pray for grant of compensation with interest and cost.
4. In response to the petition notice, the respondent has appeared before through its counsel and filed the written statement.
5. The brief contents of written statement of respondent are as under:
The respondent has contended that the petition filed by the petitioner is not maintainable either in law or on facts. Further denied the entire petition averments in toto. Further contended that driver of the bus is no way responsible for the accident. 5 SCCH-18 MVC 5630/2019 Further contended that the petition is bad for non-joinder of necessary parties as the owner and the insurer of the motor cycle is not included as the parties to the proceedings. Further, this respondent has denied the age, occupation and income of the deceased and dependency of the petitioners upon the income of deceased and relationship of the petitioners with the deceased. Further contended that the compensation claimed by the petitioners is highly excessive, exorbitant and without any basis. Contending the above facts, he prays to dismiss the petition with cost.
6. On the basis of above pleadings, the following issues were framed:
1. Whether the petitioners prove that Sri. Saddam Hussen @ Mohammed Saddam Son of Mohamed Ameeth died due to injuries sustained by him in a motor vehicle accident that was taken place on 29.8.2019 at about 2.30 p.m. near SBR Kalyan Mantappa on Hosur-Bengaluru NH-7 road, Attibele 6 SCCH-18 MVC 5630/2019 Town, Bengaluru involving Bus bearing No.TN-29-N- 3074 belonging to the respondent as alleged?
2. Whether the petitioners p[rove that the accident has mainly occurred due to rash and negligent driving of the driver of the said vehicle?
3. Whether the petitioners prove that they are the only legal heirs and dependants of deceased?
4. Whether the petitioners are entitled for compensation as prayed? If so, at what rate from whom?
5. What order or award?
7. In order to prove the case, the petitioner No.1 is examined as PW1 and got marked the documents at Ex.P1 to Ex.P11.
8. In order to disprove the contention of the petitioners, the respondent has not examined any witness on its behalf.
9. Heard the arguments.
10. My findings to the above issues are as under:
Issue No.1: In the Affirmative 7 SCCH-18 MVC 5630/2019 Issue No. 2: Partly Affirmative Issue No.3: As per final order for the following:
R E A S O N S
11. Issue No.1 & 2 : These issues are interconnected with each other, hence in order to avoid the repetition of facts, these issues are taken together for common consideration.
12. During the course of arguments, the learned counsel for the petitioners argued by reiterating the contents of petition and also evidence put forth by PW1. Further he argued that as per police investigation papers the alleged accident occurred due to the rash and negligent driving of the driver of the bus bearing No.TN-29-N-3074. Further he argued that the defence of the respondent is that the alleged vehicle was not at all involved in the accident and further he has stated that the accident occurred due to the rash and negligent act of the deceased Saddam Hussen 8 SCCH-18 MVC 5630/2019 himself. But he was not examined eye witness to rebute the evidence oral and documentary evidence furnished before this court. Further contended that the petitioners have proved their case as contended in the petition by producing oral and documentary evidence. Accordingly, they pray to allow the petition.
13. Per contra, the main contention of the learned counsel for the respondent is that the accident was not occurred due to the rash and negligent driving of the driver of the bus bearing No.TN-29-B-3074, on the otherhand the accident occurred due to the rash and negligent riding of the deceased himself. Further he argued that the petitioners have failed prove the occupation and income of the deceased as alleged in the claim petition. Accordingly they pray to dismiss the petition against the respondent.
14. On rival contention urged by both the counsel, I, intend to discuss the merits of the case.
9 SCCH-18 MVC 5630/2019
15. On perusal of the evidence available on record, it reveals that, to prove the case, the petitioner No.1 is examined as P.W.1. Further in support of her case, petitioner has produced the documents and the same are marked as Ex.P1 to Ex.P11.
16. Further to prove the rash and negligent driving of the driver of the bus bearing No.TN-29-B-3074, petitioners have produced the prosecution papers same are marked as Ex.P1 to Ex.P7 such as, FIR with Complaint, spot mahazar, rough sketch, IMV report, inquest report, PM report and charge sheet. On perusal of Ex.P1 & Ex.P7, it reveals that Attibele police have registered case against the driver of the bus bearing No.TN-29-B- 3074 in CR.281/2019 and after completion of investigation, the I.O. has filed the charge sheet as against the driver of the Container for the offences punishable u/s 279, 337 and 304(A) of IPC.
10 SCCH-18 MVC 5630/2019
17. Thereafter the counsel for the respondent has cross- examined the PW1 at length, but nothing has been elicited to prove that the accident occurred due to the rash and negligent act of the deceased himself. Further to prove the defence the respondent has not examined any witness and not produced any rebuttal documents.
18. Considering the above, facts and circumstances of the case and on perusal of evidence of PW1 coupled with documents and for the above, I am of the opinion that the petitioner has proved that the accident occurred due to the rash and negligent driving of the driver of the bus as contended in the petition by producing oral and documentary evidence.
19. Further on perusal of Ex.P5 and Ex.P6 Inquest report and P.M. report reveals that, deceased Saddam Husen has sustained grievous injuries in the accident and succumbed to the injuries. 11 SCCH-18 MVC 5630/2019
20. In addenda of this, in a claim for compensation U/S.166 of MV Act, 1988, the claimant has to prove the incident only on preponderance of probabilities and the standard of proof beyond reasonable doubt is not required as held by Hon'ble Apex Court in the decision reported in 2011 SAR (Civil) 319 (Kusum and others Vs. Satbir and others).
21. Looking to the oral evidence of PW1 and the documents placed before the court, I am of the opinion that the accident occurred due to the rash and negligent driving of the driver of the bus bearing No.TN-29-N-3074. Hence, I answer issue No.1 in the affirmative.
22. Issue No.3- The specific contentionof the petitioners is that the petitioner No.1 is the wife, the petitioner No.2 is the daughter and the petitioner No. 3 & 4 are the parents of he deceased Saddam Husen. The petitioners in order to prove the relationship of the petitioners with the deceased, the petitioners 12 SCCH-18 MVC 5630/2019 have produced Ex. P8 to Ex.P11 i.e., death certificate, notarised copy of Aadhar card of petitioner No.1, Aadhar card of the deceased and the birth certificate of the petitioner No.2.
23. On perusal of the same, it reveals that the petitioner No.1 is the wife of the deceased, petitioner No. 2 is the daughter and the petitioner No.3 & 4 are the parents of the deceased. On going through the same, it is clear that the petitioner Nos. 1 to 4 are the legal heirs and the financial dependants of the deceased. Hence, I answer the issue No. 3 in the affirmative.
24. Issue No.4:- The specific contention of the petitioner is that, deceased Saddam Husen was hale and healthy at the time of accident, aged about 29 years, working in Mutton shop under one Mohammed Irfan Baig at Karimnagar and getting an income of Rs.18,000/- per month. Due to the sudden demise of Saddam Husen, the petitioners have put to untold misery, pain and sufferings, frustration and financial loss. 13 SCCH-18 MVC 5630/2019
25. To prove the age of the deceased, the petitioners have produced Aadhar card. On perusal of the same, the date of birth of the deceased was mentioned as 18.6.1990, the alleged accident was took place on 29.8.2019.. So as on thedate of accident the age of the deceased was 29 years. So, the same is considered as age of the deceased, then the proper Multiplier applicable to the case on hand is "17".
26. Further to prove the income the petitioners have not produced any documents. In the absence of the positive documents with respect to his avocation and income, it is very difficult to believe the income of the petitioner as alleged in the claim petition. So, considering the present life condition and the age of the petitioner and the year of accident, if notional income of Rs.9,500/- is to be considered, it will meet the ends of justice. So, the same is considered as the income of the petitioner per month. The annual income comes to Rs.1,14,000/- 14 SCCH-18 MVC 5630/2019
27. At this juncture this court has drawn the attention on the decision of the Hon'ble Supreme Court reported in 2017 ACJ 2700 in between National Insurance Co.Ltd., Vs. Pranay Sethi and others. In the said decision, it is held that;
Quantum---Fatal accident---Principles of assessment---future prospects----Whether legal representatives of the deceased who was on fixed salary or self-employed or aged between 50 and 60 would be entitled to benefit of future prospects for the purpose of computation of compensation---Held: yes; case-law discussed.
While determining the income, an addition of 50 per cent of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30 per cent, if the age of the deceased was between 40 and 50 years. In case the deceased was between 15 SCCH-18 MVC 5630/2019 the age of 50 and 60 years, the addition should be 15 per cent. Actual salary should be read as actual salary less tax.
In case the deceased was self-employed or on a fixed salary, an addition of 40 per cent of the established income should be the warrant where the deceased was below the age of 40 year. An addition of 25 per cent where the deceased was between the age of 40 to 50 years and 10 per cent where the deceased was between the age of 50-60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
28. In the instant case, the age of the deceased is considered as 29 years, he comes under the age of below 40 years, 40% of the income of Rs.45,600/- is to be added to the income of deceased as future prospects, on such addition, the total income of the deceased comes to Rs.1,59,600/- p.a.. 16 SCCH-18 MVC 5630/2019
29. As I have already discussed that the petitioner Nos. 1 to 4 are financial dependants of the deceased. So, as per the decision of the Hon'ble Supreme Court reported in 2012 ACJ 1298 in between Sarlaverma Vs. Delhi Transport Corporation Ltd., if 4-6 dependants, 1/4th shall be deducted towards the personal and living expenses. In the case on hand, petitioner Nos. 1 to 4 are the financial dependants of the deceased, so, 1/4th of the income of the deceased shall be deducted towards his personal expenses, on such deduction, the income of the deceased comes to Rs.1,19,700/- p.a.
30. The income of the deceased is taken as Rs.1,19,700/- p.a. and the multiplier 17 is applied, then the loss of dependency comes to Rs.20,34,900/-. Considering the above facts, I deem it just and reasonable to grant for compensation of Rs.20,34,900/- under the head of loss of dependency.
17 SCCH-18 MVC 5630/2019
31. At this juncture I relied the judgment of the Hon'ble Supreme Court in Civil Appeal No.9581/2018 (Arising out of SLP (Civil) No.3192/2018) in case of Muama General Insurance Co.Ltd., Vs. Nanu Ram alias Chuhru Ram and Others.
In which it is held in para No.8.7 that " A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under which the compensation it so be awarded in a death case. One of these heads is "Loss of Consortium":
In legal parlance "consortium" is a
compendious term which encompasses 'spousal
consortium; parental consortium and filial
consortium.
The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse. 18 SCCH-18 MVC 5630/2019
Spousal consortium is generally defined as rights pertaining to the relationship of a husband
-wife which allows compensation to the surviving spouse for loss of "company, society, co- operation, affection and aid of the other in every conjugal relation."
Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training."
Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their oral in the family unit.
Consortium is a special prism reflection changing norms about the status and worth of actual relationship. Modern jurisdictions world- 19 SCCH-18 MVC 5630/2019 over have recognized that the value of child's consortium far exceeds the economic value of the compensation awarded in case of death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensating for loss of love, affection, care and companionship of the deceased child.
32. In the instant case, petitioner No.1 is the wife of the deceased is entitled for Spousal consortium, which can be compensated for loss of "company, society, co-operation, affection and aid of the other in every conjugal relation. The petitioner No. 2 is the daughter of the deceased is entitled for parental consortium Parental consortium, which is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training. The petitioner Nos. 3 & 4 are parents of the deceased are entitled 20 SCCH-18 MVC 5630/2019 for filial consortium, which is the right of the parents to compensation in the case of an accidental death of a child.
33. I also rely the judgment of Hon'ble Apex Court observed in Civil Appeal No.2705/2020 in case of United India Insurance Co.Ltd., Vs. Satinder Kaur @ Satvindar Kaur and others, DD on 30.06.2020. Therefore, Rs.40,000/- each is awarded to the petitioner Nos. 1 to 4.
34. Therefore, in view of the decision of the Hon'ble Supreme Court reported in 2017 ACJ 2700 in between National Insurance Co.Ltd., Vs. Pranay Sethi and others Rs.15,000/- is awarded under the head of loss of estate and Rs.15,000/- is awarded under the head of transportation of dead body, funeral and obsequies ceremony expenses.
35. Considering the above facts and circumstances of the case and for the above reason, I am of the opinion that, the 21 SCCH-18 MVC 5630/2019 petitioners are entitled for total compensation under the following heads.
Compensation heads Compensation amount
Towards loss of dependency Rs.20,34,900-00
Towards loss of consortium Rs. 1,60,000-00
Towards loss of estate Rs. 15,000-00
Towards transportation of dead body, Rs. 15,000-00 funeral & obsequies ceremony expenses Total Rs.22,24,900-00
36. LIABILITY: As I have already discussed in issue No.1 & 2 that the accident occurred due to the rash and negligent driving of the driver of the bus bearing No.TN-29-N-3074.
37. The respondent has admitted about the issuance of policy in respect of bus bearing NO.TN-29-N-3074 and its validity. Therefore, the respondent is liable to pay the compensation with interest @ 8% P.A. from the date of petition till the date of deposit. Accordingly, I answer the issue No.4 in the partly affirmative.
22 SCCH-18 MVC 5630/2019
38. ISSUE NO.5: In view of my findings on the above issues, I proceed to pass the following;
ORDER The claim petition filed by the petitioners U/S 166 of MV Act is hereby partly allowed with costs.
The petitioners are entitled for compensation of Rs.22,24,900/- with interest @ 8% p.a. from the date of petition till the date of deposit.
The respondent is liable to pay the compensation with interest at 8% p.a. from the date of petition till the date of deposit within two months from the date of this order.
After deposit of the compensation amount together with interest, the petitioner No.1 is awarded 60% of the compensation amount and 20% is awarded 23 SCCH-18 MVC 5630/2019 to the petitioner No.2 and 10% each is awarded to petitioner No.3 & 4.
With regard to the compensation amount together with interest of petitioner No.1, 3 & 4, 40% of the amount shall be deposited in any nationalized/schedule bank of their choice, for a period of 3 years and remaining 60% of the amount shall be released to the petitioners through e-payment.
With regard to the compensation amount together with interest of petitioner No.2 entire amount shall be deposited in Nationalised Bank or Scheduled bank till she attains age of majority, after attaining the age of majority, entire amount shall be released to the petitioner through e-payment. The guardian of the petitioner is at liberty to withdraw the 24 SCCH-18 MVC 5630/2019 periodical interest accrued on her deposit amount from time to time.
Advocate fee is fixed at Rs.1,000/- each. Draw award accordingly.
(Dictated to the stenographer, transcribed by her, corrected by me and then pronounced in the open court on this 12th day of January 2021) (MAHANTESH S.DARGAD) III ADDL. SMALL CAUSES JUDGE & ACMM, BENGALURU.
ANNEXURE List of witnesses examined on petitioner's side:
PW1 Smt.Ina Kousar @ Heena Kousar List of documents exhibited on petitioner's side:
Ex-P1 True copy of FIR with complaint
Ex-P2 True copy of Spot mahazar
Ex-P3 True copy of Rough sketch
Ex-P4 True copy of IMV report
Ex-P5 True copy of Inquest report
Ex-P6 True copy of P.M.report
25 SCCH-18 MVC 5630/2019
Ex-P7 True copy of charge sheet
Ex-P8 Death certificate
Ex.P9 Notarised copy of Aadhar Card of petitioner
No.1
Ex.P10 Notarised copy of the Aadhar card of deceased
Ex.P11 Notarised copy of birth certificate of the
petitioner No.2
List of witnesses examined on respondents' side:
None List of documents exhibited on respondents' side:
Nil III ADDL.SMALL CAUSES JUDGE & ACMM, Bengaluru.