Bangalore District Court
Pasang Tsering vs M/S Megha Travels on 9 March, 2022
KABC020200112019
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS
TRIBUNAL, BENGALURU CITY
SCCH4
PRESENT: RAJU.M., M.A., LL.B.,
Member, MACT
XVIII ADDL. JUDGE,
Court of Small Causes,
BENGALURU.
Dated this the 9th day of March 2022
MVC No.4674/2019
PETITIONERS: 1. Pasang Tsering,
S/o Thupten Thokme,
Aged about 47 years.
2. Tenzin Gedun,
S/o Pasang Tsering,
Aged about 21 years.
3. Tenzin Tselha,
D/o Pasang Tsering
Aged about 17 years.
Being minor, rep. By hereunder
father & natural guardian
Pasang Tsering i.e., petitioner No.1.
All are residing at
Dalai Lama Institute for
Higher Education, Hejjala Post,
Bidadi Hobli, Ramanagara Taluk
& District and also
SCCH4 2 MVC No.4674/2019
R/at S.O.S. TCV School,
Bylakuppe Mysore571104.
Permanent Address:
KCamp3, Lehladark
Jammu and Kashmir
(By Sri.R.K.K., Adv.,)
V/s
RESPONDENTS: 1. M/s Megha Travels,
# 637, 14th Cross, 8th main,
J.P.Nagar, 3rd Phase, Bengaluru78.
Rep. By its authorized Signatory.
(RC owner of Tempo Traveller
bearing Reg.No.KA51AA2984)
(Exparte)
2. Reliance Gen.Ins.Co.Ltd.,
RGIC, # 28, East Wing 5th floor,
Centenary building, M.G.Road,
Bengaluru01.
(Insurer of Tempo Traveller bearing
Reg.No.KA51AA2984)
Policy No.140921923400001121
valid from 31.03.2019 to
30.03.2020.
(By Sri.T.N.M., Adv.,)
JUDGMENT
The petitioners No.1 to 3 have filed this petition U/s 166 of the Motor vehicles Act claiming compensation for the death of Sonam Sangmo, in a motor vehicle accident that occurred on 27.06.2019.
SCCH4 3 MVC No.4674/2019
2. The case of the petitioners, in brief, is as follows:
On 27.06.2019 at about 10.30 p.m., deceased Sonam Sangmo was proceeding in a Motorcycle bearing Reg.No.KA41EJ5190 as a pillion rider, her husband the 1st petitioner was riding the motorcycle slowly, carefully and cautiously by observing all traffic rules and regulations, proceeding on the left side of the road, when he reached near BengaluruMysore road, near Hejjala gate, Bidadi hobli, Ramanagara taluk & district, at that time a Tempo Traveler bearing Reg.No.KA51AA2984 driven by its driver at high speed in a rash and negligent manner without following traffic rules and regulations so as to endanger to human life and property, all of a sudden came from Bidadi side and towards Bengaluru and dashed against the deceased's motorcycle. Due to the forced impact the rider and pillion rider of the motorcycle were thrown out from the motorcycle and SCCH4 4 MVC No.4674/2019 sustained severe head injuries. Immediately after the accident both were shifted to Rajarajeshwari hospital, Bengaluru, wherein the duty doctors examined and deceased and declared Sonam Sangmo was died on the way to the hospital. Thereafter post mortem was conducted in the same hospital and then handed over the dead body to the petitioners.
The petitioners have spent Rs.1,00,000/ towards transportation charges and the funeral and death ceremonies and other expenses. The deceased was a Hostel Warden and was earning Rs.20,275/ per month, she was contributing her entire income to her family. Due to the untimely death of deceased the petitioners have suffered mentally and physically, they have lost their bread earner.
The petitioner No.1 is the husband, petitioner No.2 and 3 are son and daughter of the deceased Sonam SCCH4 5 MVC No.4674/2019 Sangmo, have lost their beloved care taker. The respondent No.1 is the owner and the respondent No.2 is the insurer of the lorry are jointly severally liable to pay the compensation to the petitioners. Hence prays to award compensation of Rs.40,00,000/ with interest.
3. After service of notices the respondent No.1 is placed exparte. The respondent No.2 is appeared through its advocate and filed objections.
The respondent No.2 denies about issuance of insurance policy in respect of the Tempo traveller bearing Reg.No.KA51AA2984 covering as on the date of alleged accident. Further contended that at the time of the accident the driver of the offending Tempo traveller bearing Reg.No.KA51AA2984 was not holding a valid driving license to drive the vehicle. The owner of the vehicle knowingly and willfully entrusted his vehicle to such person to drive, who had no license to drive for SCCH4 6 MVC No.4674/2019 particular class and type of vehicle at the time of accident and caused for violation of policy conditions and provisions of MV Act. Further contended that the Tempo traveller bearing Reg.No.KA51AA2984 was not holding valid permit to ply on the route of alleged accident and there was no valid fitness certificate for the vehicle. Further contended that the alleged accident has taken place only due to the 100% negligence on the part of the husband of the deceased, who was riding his motorcycle and negligently stopping on a busy BengaluruMysore National Highway road, unmindful of the busy traffic that too during night time at 10.30 p.m., Further contended that petitioner No.1 riding the vehicle without holding valid driving license at the time of alleged accident and rider and pillion rider were also not wearing helmet at the time of the accident, resulting in head injuries and death. Further contended that the accident and death is alleged SCCH4 7 MVC No.4674/2019 to have occurred on 27.06.2019 but the complaint has been lodged on 28.06.2019 there is delay of one day. Hence the 2nd respondent prays to dismiss the petition against it.
4. On the basis of the rival contentions, the following issues were framed by this court:
1. Whether the petitioners prove that deceased Sonam Sangmo died in the Motor Vehicle accident that occurred on 27.06.2019 at about 10.30 p.m., near Hejjala Gate, Bidadi hobli, Ramanagara taluk, Ramanagara District due to the rash and negligence driving of the Tempo Traveller bearing Reg.No.KA51AA 2984 by its driver?
2. Whether the petitioners prove that they are the dependents of the deceased?
3. Whether the petitioners are entitled for the compensation? If so, what amount and from whom?
4. What order or award?
SCCH4 8 MVC No.4674/2019
5. In order to prove the claim petition, the 2 nd petitioner is examined as PW.1 and got marked the documents at Ex.P.1 to Ex.P.19 and examined Senior Accountant, Dalai Lama Institute for Higher Education as PW.2 and got marked documents at Ex.P.20 and 21.
When the case was put for respondents evidence their advocate submitted that no evidence on their behalf.
6. I have heard the arguments on both sides and perused the material evidence that is available on record.
7. My findings on the above points are as under.
Issue No.1: In the affirmative,
Issue No.2 : In the affirmative.
Issue No.3: Partly in the affirmative,
Issue No.4: As per the final orders
for the following.
REASONS
ISSUE NO.1:
8. To prove the case of the petitioner that he has produced certified documents out of them Ex.P.1 and 2 SCCH4 9 MVC No.4674/2019 are the FIR and complaint. As per these documents the police have recorded the statement of petitioner No.1 on 28.06.2019, while he was taking treatment at Victoria hospital. As per the statement, on 27.06.2019 at about 10.30 p.m., petitioner No.1 and his wife Sonam Sangmo were proceeding on the Motorcycle bearing Reg.No.KA41 EJ5190, petitioner No.1 was riding the vehicle from Hejjala while they were proceeding so, the petitioner came near Hejjala gate and stopped the vehicle with an intention to cross the road. At that time one Tempo traveller bearing Reg.No.KA51AA2984 came from Bidadi towards Bengaluru in rash and negligent manner and dashed the petitioners motorcycle. Due to which petitioner No.1 and his wife fell on the road and both ob them were sustained injuries. Since after the accident public were shifted to Rajarajeshwari hospital, but wife of the petitioner No.1 died in the hospital. Upon receiving SCCH4 10 MVC No.4674/2019 the complaint the police have registered FIR against the Tempo traveller bearing Reg.No.KA51AA2984, thereafter the police have visited the place of the accident and drawn spot mahazar as per Ex.P.3. As mentioned in the spot mahazar the accident is occurred on the left of circle which leads to Hejjala village, the damages caused to both vehicles were also noted in the IMV report. Ex.P.4 is inquest report, Ex.P8 is the PM report of deceased Sonam Sangmo, the injuries found on the dead body of Sonam Sangmo were also noted in the PM report as well as inquest report, the cause of death is head injury. Ex.P.9 is the IMV report which discloses that front portion of both vehicles were damaged. During the course of investigation the police have pointd notice to respondent No.1 as per Sec.133 of MV Act, calling upon the respondent No.1 to furnish the documents in respect of the Tempo traveller bearing Reg.No.KA51AA2984 SCCH4 11 MVC No.4674/2019 and who was driving the same on the date of the accident. After receipt of notice the respondent No.1 issued reply notice as per Ex.P.6, wherein it has been stated that as on the date of the accident one Suresh S/o Bettaiah was driving the vehicle and he has driving license. The jurisdictional police after completion of investigation filed charge sheet against the Suresh for the offences punishable U/s 279, 337 and 304(A) of IPC. The copy of charge sheet also marked at Ex.P.10. In the charge sheet also mentioned as, it has been alleged that on 27.06.2019 at about 10.30 p.m., the accused being the driver of Tempo traveller bearing Reg.No.KA51AA 2984 drove from Bidadi to Bengaluru and dashed against the petitioners motorcycle, wherein the petitioner No.1 and deceased were proceeding in the said accident. The pillion rider i.e., wife of the petitioner No.1 sustained injury and died in the hospital.
SCCH4 12 MVC No.4674/2019
9. The respondent No.1 does not contesting the claim petition and respondent No.2 has filed statement of objection that, there is no negligence on the part of the Tempo traveller bearing Reg.No.KA51AA2984, but the alleged accident taken place only due to negligence on the part of the husband of deceased i.e., petitioner No.1, who was riding his motorcycle in rash and negligent manner and stopped the motorcycle on busy road that during the night hours. The respondent No.2 did not entered the witness box to prove its defence. In the cross examination of PW.1 the respondent No.2 has taken up defence that the accident took place due to negligence of the motorcycle i.e., petitioner No.1. But the said suggestion has been denied by PW.1. In the cross examination of PW.1 nothing worth is elicited so as to prove the negligence on the part of the petitioner. The documentary as well as oral evidence of parties goes to SCCH4 13 MVC No.4674/2019 show that deceased Sonam Sangmo died while she was proceeding as a pillion rider and the Motorcycle bearing Reg.No.KA41EJ5190 ridden by petitioner No.1 and said accident due to rash and negligent driving of the Tempo traveller bearing Reg.No.KA51AA2984.
10. As per well settled principle of the standard of proof in the claim petition like the present is preponderance of the probability. There are no grounds to disbelieve the case of petitioner. All the materials available on record leading to show that, petitioner has sustained injuries in the accident took place on 16.11.2017 which is caused by the Tempo Traveller bearing Reg.No.KA51AA2984 which belonging to respondent No.1. There no reasons to discard the evidence of petitioner. In the claim petition like present one strict proof is not necessary but preponderance of SCCH4 14 MVC No.4674/2019 probabilities is sufficient. Accordingly, I answer issue No.1 in the affirmative.
ISSUE NO.2
11. As held herein above, the petitioners have proved that Sonam Sangmo died on 27.06.2019 due to the injuries sustained in RTA, which is caused by driver of the vehicle belonging to respondent No.1.
12. As contended in the petition the petitioner No.1 is the husband, petitioner No.2 is the son and petitioner No.3 is the daughter of deceased Sonam Sangmo. The respondents does not specifically deny the relationship of petitioners with deceased Sonam Sangmo. The petitioners to prove their relationship, with the deceased Sonam Sangmo have produced notarized copies of their Aadhar cards including Adahar card of deceased which are marked at Ex.P.11 to 14. ExP.15 is the employee ID card of the deceased. The original documents of the SCCH4 15 MVC No.4674/2019 notarized copies are also compared during the course of evidence and found correct. As per these documents the petitioner No.1 is the husband, petitioner No.2 is the son and petitioner No.3 is the daughter of the deceased Sonam Sangmo. These documents are not disputed by the respondents. In the absence of contradictory evidence the evidence of the petitioners is to be accepted and it is considered that, petitioners being the husband, son and daughter of the deceased, are the dependents of deceased and they are entitled for compensation. Accordingly, I answer issue No.2 In the affirmative.
ISSUE NO.3:
13. Now the quantum of compensation is to be decided. As per Ex.P.14 Aadhar, the deceased Sonam Sangmo. was born on 1975, the accident took place in the year2019, If it is considered, as on the date of the accident the age of the deceased was 44 years.
SCCH4 16 MVC No.4674/2019
14. As stated in the petition deceased Sonam Sangmo was working as Hostel Warden in Dalai Lama Institute of Higher Education, Sheshagirihalli, Hejjala post, Bidadi hobli, Ramanagara taluk and district and getting salary of Rs.20,275/ p.a., In this regard the petitioners have produced appointment letter issued by Dalai Lama Institute of Higher Education. As per this appointment letter marked at Ex.P.17 deceased was appointed as hostel warden with effect from 01.02.2016 with salary of Rs.12,445/ p.m., Ex.P.18 is the salary certificate issued by Dalai Lama Institute of Higher Education. As per this document deceased was drawing salary of Rs.20,375/ p.m., Ex.P.19 is the bank statement which stands in the name of deceased.This document discloses that the Dalai Lama Institute of Higher Education has deposited the salary to the account of deceased.
SCCH4 17 MVC No.4674/2019 To prove this documents the petitioners have also examined Norbu Tsering, Senior Accountant in the Dalai Lama Institute of Higher Education as PW.2. This witness has deposed that, deceased working in their institution as hostel warden and said Sonam Sangmo died on 27.06.2019 in RTA. At the time of her death, she was drawing the gross salary of Rs.20,375/. PW.2 has also produced authorization letter appointed to him by Dalai Lama Institute of Higher Education to give evidence and employment ID card. These two documents marked at Ex.P.20 & 21. These documents as well as evidence of PW.2 supports that deceased was working as hostel warden and she was drawing salary of Rs.20,375/ p.m. at the time of her death. After deduction of Rs.200 for profession tax the remaining Rs.20,175/ is the monthly income of the deceased.
SCCH4 18 MVC No.4674/2019 As per Sarala varma case the proper multiplier applicable to the age of deceased is 14. Since the deceased left her husband, son and daughter, it is considered that, there are three dependents of deceased, hence 1/3rd is to be deducted towards her personal expenses, then the total loss of dependency would be Rs. 22,59,600/ (Rs.20,175/ X 12 X 14= Rs.33,89,400/ minus 1/3rd = Rs.11,29,800/).
15. In Civil Special leave petition (Civil No.25590/2014 dated 31.10.2016 (National Insurance Company Ltd., Vs. Pranay Sethi & others), the Hon'ble Supreme Court has held that "While determining the income, in case the deceased was self employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 SCCH4 19 MVC No.4674/2019 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component."
16. In another reported decision in Civil Appeal Nos.1920 of 2021 in between Kirti and Another etc., V/s Oriental Insurance Company Ltd., as follows;
"When it comes to the second category of cases, relating to notional income for nonearning victims, it is my opinion that the above principle applies with equal vigor, particularly with respect to homemakers. Once notional income is determined, the effects of inflation would equally apply. Further, no one would ever say that the improvements in skills that come with experience do not take place in the domain of work within the household. It is worth nothing that, although not extensively discussed, this Court has been granting SCCH4 20 MVC No.4674/2019 future prospects even in cases pertaining to notional income, as has been highlighted by my learned brother, Surya Kant, J., in his opinion (Hem Raj V. Oriental Insurance Company Limited, (2018) 15 SCC 654:
Sunita Tokas V. New India Insurance Company Ltd., (2019) 20 SCC 688)".
17. As per the above decision, 25% of notional income should be added to total loss of dependency, to the age of deceased, which will be Rs.5,64,900/.
18. The petitioner No.1 is the husband of deceased. Hence I inclined to award a sum of Rs.40,000/ towards loss of consortium to the 1st petitioner, Rs.25,000/ towards loss of love and affection. Further, I inclined to award compensation of Rs.15,000/ towards funeral expenses and Rs.5,000/ towards transportation of dead body.
SCCH4 21 MVC No.4674/2019
19. The petitioners are entitled for compensation under the following heads:
1. Loss of dependency Rs. 22,59,600/
2. Loss of future prospects Rs. 5,64,900/
3. Loss of consortium Rs. 40,000/
4. Loss of love and affection Rs. 25,000/
5. Funeral expenses Rs. 15,000/
6. Transport of dead body Rs. 5,000/ Total Rs. 29,09,500/
20. In this case, the respondent No.1 and 2 are the owner and insurer of the offending vehicle. The respondent No.2 in its objection statement has denied the coverage of the insurance to the offending vehicle bearing Reg.No.KA51AA2984 but as per xerox copy of the insurance policy produced by the petitioners the insurance policy was in existence to the offending vehicle as on the date of accident. Hence, the respondent No.2 shall indemnify the respondent No.1 and they are jointly SCCH4 22 MVC No.4674/2019 and severally liable to pay the compensation to the petitioner.
21. This tribunal, in earlier other cases, was awarded the compensation along with the interest at the rate of 12% p.a, by relying th earlier judgment of the Hon'ble supreme court. But in the recent judgment, in civil appeal No.6902/2021, in the case of Kurvan Ansari @ Kurvan V/s Shyam Kishore Murmu, the Hon'ble supreme court was pleased to award interest at the rate of 6% p.a., Accordingly, I answer this issue partly in the affirmative.
ISSUE NO.4:
22. For the foregoing reasons, I proceed to pass the following:
ORDER The petition filed by the petitioners U/s 166 of the Motor Vehicles Act is hereby partly allowed with cost.
SCCH4 23 MVC No.4674/2019 The petitioners are entitled for total compensation amount of Rs.29,09,500/ with interest at the rate of 6% p.a.,. from the date of petition till the realization from respondents.
The petitioners No.1 to 3 are entitled for the compensation at the ratio of 50:25:25.
The respondent No.2 is directed to deposit the compensation amount within 30 days from the date of this order.
Out of awarded amount of petitioner No.1, 50% shall be released to petitioner No.1 on his proper identification and
remaining 50% shall be kept in Fixed Deposit in his name in any Scheduled Bank, for a period of three years.
The entire amount awarded to petitioner No.3 shall be kept in Fixed Deposit SCCH4 24 MVC No.4674/2019 in her name in any Scheduled Bank, till attains the age of majority.
Considering the quantum of amount awarded to petitioner No.2 it is order to release the entire amount to him.
Advocate fee is fixed at 1,500/. Draw the award accordingly.
(Dictated to the Stenographer, transcribed by her, the transcript corrected and then pronounced by me in the open court on this the 9th day of March, 2022) (RAJU.M) XVIII ADDL.JUDGE Court of Small Causes & MACT., Bengaluru.
ANNEXURE List of witnesses examined for petitioners:
PW.1 Sri Tenzin Gedun PW.2 Sri Norbu Tsering
List of documents marked on behalf of the petitioners:
Ex.P1 FIR
Ex.P2 Complaint
SCCH4 25 MVC No.4674/2019
Ex.P3 Mahazar
Ex.P4 Inquest report
Ex.P5 Notice
Ex.P6 Reply notice
Ex.P7 Sketch
Ex.P8 PM report
Ex.P9 IMV report
Ex.P10 Charge sheet
Ex.P11 to 14 Aadhar cards
Ex.P15 Employee ID
Ex.P16 Employee ID
Ex.P17 Appointment letter
Ex.P18 Salary certificate
Ex.P19 Bank statement
Ex.P20 Authorisation letter
Ex.P21 Employement ID
List of witnesses examined for Respondents:
None List of documents marked on behalf of the Respondents:
Nil XVIII ADDL.JUDGE Court of Small Causes & MACT., Bengaluru.