Bangalore District Court
Smt.Shivamma vs National Insurance Co.Ltd on 4 June, 2018
BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL & V
ADDL. JUDGE SCCH-20, Mayo Hall Unit, Bengaluru.
Dated this the 4th day of June, 2018
Present: Smt. A.G.SHILPA, B.A., LL.B.,
V Addl. Small Causes Judge &
XXIV A.C.M.M., Member, M.A.C.T.,
Bengaluru.
MVC. No. 5288/2017
PETITIONER: 1. Smt.Shivamma
W/o Late Siddalingaswamy @ Shivu
Aged about 42 years,
2. Mr.Parashivamurthy.K.S
S/o Late Siddalingaswamy @ Shivu
Aged about 22 years,
3.Miss.Showbhagya.K.S
D/o Late Siddalingaswamy @ Shivu
Aged about 19 years,
4. Smt.Chandramma
W/o Channabasavaiah
Aged about 70 years,
All are residing at K.Kodihalli village
Somanahalli post, Kasaba hobli
Maddur taluk, Mandya Dist 571429
(By Pleader N.P.Law Associates)
-V/s-
RESPONDENT: 1.National Insurance Co.Ltd.,
IP claims hub, NO.144-145, 2nd floor,
Shubaram comples, MG Road,
Bangalore - 560001
SCCH-20 2 MVC No.5288/17
2.Mr.Vinay G.R
S/o Ramalingaiah
R/at No.398, Gejjalagere,
Maddur Taluk,
Mandya District - 571429
(R1-By Pleader Sri.D.M.Joshi
R2-By Pleader Sri.M.J.Sumanth)
JUDGMENT
The petitioner has filed present petition U/sec 166 of IMV Act claiming compensation amount of Rs.40,00,000/- for the death of Siddalingaswamy by Road Traffic Accident along with interest and for costs.
2. The brief facts of the petitioner's case are that:
On 07.06.2017 at about 02.10 PM at K.Kodihalli main road, Maddur taluk, deceased was riding his motor cycle bearing No.KA-11-EF-4622 from somanahalli towards his residence and near sarasamma M.Channappa comuinty hall motor cycle bearing No.KA-11-V-6165 came in a rash and negligent manner, so as to endanger human life and dashed to the deceased from opposite direction and he sustained grievous head injuries and died in the hospital under treatment on 09.06.2017 at 02.10 am., After post mortem, the body was handed over to the petitioners and performed the last rites, medical, SCCH-20 3 MVC No.5288/17 hospitalization and obsequies for which she spent Rs.3,00,000/-.
At the time of death, the deceased was aged about 45 years and was working as driver cum agriculturist and earned Rs.30,000/- per month. The deceased was contributing his entire income for family maintenance. Due to sudden death of the deceased, the petitioner undergoing deep mental shock and agony.
The Maddur Police have registered a case in Crime No.236/2017 against the driver of motor cycle bearing No.KA- 11-V-6165 for committed offences punishable under Section 279, 304(a) of IPC. Hence, it is prayed to allow this petition.
In pursuance of the claim petition, this court issued notice to respondent No.1 and 2 appeared through pleader both respondents have filed written statement respectively.
3. Brief averments of the written statement of the respondent No.1 are as follows:
The 1st respondent admitted for having issued policy bearing No.602401311610002013 in favour of the 2nd respondent insuring the rider of motor cycle bearing No.KA-11- V-6165 for the period 02.09.2016 to 01.09.2017. The respondent has denied all other averments made in the petition. It is stated that in the event that an award is passed against the SCCH-20 4 MVC No.5288/17 respondent their liability to indemnify their insured is subjected to the terms and conditions of the policy and under the provision of Motor Vehicles Act. It is defence that the liability to indemnify the insured subject to holding valid and effective driving license by the rider. Further it is admitted that the petitioner is required to declare that she did not file any other petitions claim for compensation on the same cause of action before any other tribunal, in case of such petitions are pending, she ought to give an undertaking that she shall withdraw all other cases claiming for the same relief. Further submitted that in the event of this court has inclined to allow the above petition and award interest may be restricted to 6% pa., Therefore, the 1st respondent in the above case prayed to dismiss claim petition.
4. Brief averments of the written statement of the respondent No.2 are as follows:
The respondent No.2 has denied the all plaint allegations made against him and as false, vexatious and concocted and the petitioners are put to strict proof of the averments regarding the place, date and time of the accident. The compensation claimed by the petitioners are fanciful, speculative and exorbitant besides being without any basis. Hence, it is prayed to dismiss the petition.SCCH-20 5 MVC No.5288/17
5. On basis of the Pleadings and materials and materials, my Predecessor has framed the following:
ISSUES
1. Whether the petitioner proves that on 07/06/2017 at about 2.10 pm., when the deceased Siddalingaswamy @ Shivu was traveling as a rider on his Motor cycle bearing Reg.No: KA-
11-EF-4622, on K.Kodihalli main road, Maddur Taluk, near Sarasamma M.Channappa Comminity hall, at that time, Motor Cycle bearing Regn No: KA-11-V-
6165 riding by its rider at a very high speed rash and negligent, and dashed against the deceased motor cycle. Due to the impact, the deceased fell down and sustained grievous Injuries and deceased died due to accidental injuries?
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3. What order or award?
6. In order to prove their case, the petitioner No.2 got examined himself as P.W.1 and got marked documents as Ex.P.1 to 14 and closed his side. The Respondents not adduced any evidence on their behalf.
7. Heard the arguments of both side and perused the records.
SCCH-20 6 MVC No.5288/178. My findings on the above issues are as follows:
Issue No.1 : In the Affirmative,
Issue No.2 : Partly in the Affirmative
Issue No.3 : As per final order
for the following:
REASONS
9. ISSUE No.1: The PW-1 in this case filed evidence affidavit as PW-1 and reiterated petition averments contending that on 07.06.2017 at about 02.10 PM at K.Kodihalli main road, Maddur taluk, deceased was riding his motor cycle bearing No.KA-11-EF-4622 from somanahalli towards his residence and near sarasamma M.Channappa comuinty hall motor cycle bearing No.KA-11-V-6165 came in a rash and negligent manner, so as to endanger human life and dashed to the deceased from opposite direction and he sustained grievous head injuries and died in the hospital under treatment on 09.06.2017 at 02.10 am.,
10. In order to prove her contention the PW-1 relied upon police documents Ex.P1 to 9. However, it is settled law that evidence in MVC cases must be assessed independently form criminal proceedings. Therefore, prudence require corroboration. The PW-1 coupled with oral evidence, she got marked documents as Ex.P1 to 14. The Ex.P1 FIR and Ex.P2 first information statement and it corroborates the information of accident to police. The Maddur police station had registered SCCH-20 7 MVC No.5288/17 FIR vide Cri.No.236/2017 against the rider of motor cycle bearing No.KA-11-V-6165 for committing offence punishable U/s 279 and 337 of IPC r/w sec.187A and B of IMV Act on basis of first information statement of one Mr.Vinayaka eye witness to the accident. It is registered on the next day of the accident. The petitioner No.1 is a home maker and petitioner No.4 is aged 70 years and petitioner No.2 and 3 are physically disabled children. The delay is explained in the FIR that the family was attending the deceased at hospital. It corroborates the oral evidence of PW-1 and nothing material is elicited of PW-1 to doubt her testimony.
11. The Ex.P3 is report of IO to court, therefore, it corroborates the deceased was under treatment at the Maddur dist hospital and subsequently at Bangalore. The Ex.P4 is the sketch and it corroborates the place of accident and course of the vehicle causing accident to deceased. Ex.P8 IMV report and it corroborates good brake system and good mechanical condition of the both vehicles. The rider of motor cycle bearing No.KA-11-V-6165 did not have sufficient cause to cause accident to deceased. The inquest Ex.P5 and Ex.P7 PM report corroborates the death was due to road traffic accident. He died due to head injury. Ex.P9 charge sheet is filed against the rider of motor cycle bearing No.KA-11-V-6165 Mr.Prasanna for committing offences punishable U/s 279, 338 and 304(a) of IPC. The Pw-1 is not eye witness to the accident. The driver is SCCH-20 8 MVC No.5288/17 not examined in this case to explain, what exactly happed at the place of accident?. Therefore, an adverse inference can be drawn against him. The oral evidence coupled with documentary evidence clearly indicate an act of rash or negligence on the driver of the car. I answer the issue No.1 in affirmative.
12. Issue No.2: Now in respect to quantum of compensation is concerned, as per Ex.P10 driving license of deceased the date of birth is 20.07.1971. He was aged 46 years at the time of accident. The proper multiplier is 13. The petitioner No.1 is the wife and Petitioner No.2 and 3 are children and petitioner No.4 is mother of the deceased. The petitioner No.2 and 3 being major, be that as it may, petitioner No.3 is unmarried and petitioner No.2 contends that he is handicapped in support of his assertion he exhibited Ex.P12 and it becomes clear that both petitioner No.2 and 3 are blind by birth. Both suffered 75% of disability. Therefore, total dependents on the deceased are four and 1/4th needs to be deducted towards personal expenses of the deceased.
As held by Hon'ble Supreme Court of India Special Leave petition (Civil)No.25590/2014 (national insurance company ltd Vs Pranay sethi and others) reading and referring Resham Kumari and others Vs Madan Mohan and another both three judge bench decisions , a two judge bench of this court in SCCH-20 9 MVC No.5288/17 national insurance company ltd Vs Pushpa and others referred the decisions as follows:
(i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
(iii) While determining the income, an addition of 50% 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%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 SCCH-20 10 MVC No.5288/17 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) 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 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.
(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
SCCH-20 11 MVC No.5288/17(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.
13. In this case the deceased was driver cum agriculturist. There is no income proof. The accident occurred on 07.06.2017. Therefore, it is appropriate to take notional income of Rs.10,000/- in view of Rs.350/- per day can be earned by pursuing driving in Bangalore and agriculture at the same time. He was self employed. 25% of actual income should be added for determining future prospectus.
Towards loss of dependency calculation is as follows:
Adding 10% future prospects: 25%X10000+10000=12,500/- Deducting 1/4th personal expenses: 12,500X1/4-3125=9,375/-
9,375X12X13=Rs.14,62,500/-
14. In view of the decision of Special Leave petition (Civil)No.25590/2014 (national insurance company ltd Vs Pranay sethi and others) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs. 15,000/- respectively. The PW-1 has produced Ex.P14 medical bills for Rs.2,19,500/- and payment is by self. Nothing material is SCCH-20 12 MVC No.5288/17 elicited during cross examination of PW-1 to doubt Ex.P14. The PW-1 was initially treated Maddur Govt Hospital and shifted BGS hospital wherein he was under treatment from 07.06.2017 to 09.06.2017 where he died due to fatal head injuries. Accordingly on basis of fixed formula given above, it is just and reasonable to grant compensation under following heads:
1. Loss of dependency Rs.14,62,500/- 2 Loss of consortium Rs.40,000/-
3 Loss of estate Rs.15,000/-
4 Medical bills Rs.2,19,500/-
5 Towards funeral and Rs. 15,000/-
obsequies ceremonies Total Rs.17,52,000/-
In all the petitioners are entitled for compensation of Rs.17,52,000/-.
15. Interest:
Hon'ble Supreme Court in Civil Appeal No.3238/2015 (arising out of SLP (C) 1865/2014 (Chanderi Devi and Anr., Vs. Jaspalsingh & Ors.,) and 2013 AIR SCW 5375 (Minu Rout & Ors vs Sathya Pradyumna Mohapatra & Ors), (2011) 4 SCC 481: (AIR 2012 SC 100) (Muncipal council of Delhi Vs Association of Victims of Uphaar Tragidy and Hon'ble High Court in MFA No.2326/2016 (Annapurna & Ors., G.Ashawathraya & Anr.,) have held that rate of interest shall be @9% p.a., from the date of application till the date of payment. Hence, I hold that the petitioner is entitled for interest @9% SCCH-20 13 MVC No.5288/17 p.a., from the date of petition till the date of payment. In view of settled rate of interest, 9% is justified and not on higher side. Accordingly the petitioner is entitled to interest @ 9% pa., Liability
16. It is established that the rider of motor cycle bearing No.KA-11-V-6165 was rash or negligent and responsible for accident and caused death of deceased. There is no cogent evidence from respondent No.1 in respect to contributory negligence of deceased. As on the date of accident the policy was in force and there is no breach of terms and conditions of policy. Therefore, both respondents are jointly and severally liable to pay compensation. The primary liability is upon the respondent No.1 to pay compensation and cost to the petitioners. In view of petitioners No.1 to 4 are legal representative of the deceased, all are entitled for equal share in compensation, cost and interest. Therefore, I answer Issue No.2 in partly affirmative.
17. Issue No.3: After having answered issue No.1 to 3 as supra I hold that, the petition filed by the petitioners is fit to be allowed in Part, in the result, I proceed to pass the following:-
ORDER The claim petition filed under Section 166 of the Motor Vehicles Act is partly allowed.SCCH-20 14 MVC No.5288/17
The petitioners No.1 to 4 are entitled for compensation of Rs.17,52,000/- with interest @ 9% pa., from the date of petition till its realization.
The respondent No.1 shall pay aforesaid compensation amount with 9% interest to the petitioners within two months from date of this order.
The petitioner No.1 to 4 are entitled for equal share of compensation i.e., Rs.4,38,000/- each with interest.
Out of the share of petitioner No.1 to 4, 60% shall be released in their favour and remaining 40% amount shall be deposited in a fixed deposit in any nationalized bank of their choice, for a period of three years and withdraw interest on the FD amount quarterly.
Advocate fee is fixed at Rs.1,000/-. Draw the Award accordingly.
(Dictated to the Stenographer directly on computer, corrected by me and then pronounced in open court on this the 4th day of April 2018) (A.G.SHILPA,) V ASCJ & Member, MACT, Court of Small Causes, Mayo Hall Unit, Bengaluru.SCCH-20 15 MVC No.5288/17
A N N E X U R E:
Witnesses examined for petitioners:
P.W.1 : Parashivamurthy
Documents marked for petitioners:
Ex.P1 : Copy of the FIR,
Ex.P2 : Copy of the FIS,
Ex.P3 : Copy of the requisition of police
Ex.P4 : Copy of the spot sketch
Ex.P5 : Copy of the mahazar
Ex.P6 : Copy of the Inquest report,
Ex.P7 : Copy of the PM report
Ex.P8 : Copy of IMV report
Ex.P9 : Copy of charge sheet
Ex.P.10 : Notarized copy of DL of petitioner
Ex.P.11 : Notarized copy of Adhaar card of petitioners
Ex.P.12 : Notarized copy of blind certificate of petitioners
Ex.P.13 : Notarized copy of pension certificate of
petitioners NO.2 and 3
Ex.P.14 : Medical bills for Rs.2,19,500/-
Witnesses examined for respondents: - Nil - Documents marked for respondents: - Nil -
(A.G.SHILPA,) V ASCJ & Member, MACT, Court of Small Causes, Mayo Hall Unit, Bengaluru.