Bangalore District Court
Mrs.Zeenath Unnisa vs Sbi Gen.Ins.Co on 1 September, 2017
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
AT BENGALURU
(SCCH:15)
MVC No.4176/2015
THIS THE 1ST DAY OF SEPTEMBER 2017
Present: Rajanna Sankannanavar,
B.A., LL.B.,(Spl.)
XIII Addl. Judge,
Court of Small Causes and
Member of MACT, Bengaluru.
Petitioner: 1. Mrs.Zeenath Unnisa, W/o Late
Mohammed Basheer, 35 years.
2. Master Mohammed Ayub, S/o Late
Mohammed Basheer, 16 years.
3. Master Mohammed Ismail, S/o Late
Mohammed Basheer, 13 years.
4. Master Mohammed Yunus, S/o Late
Mohammed Basheer, 12 years.
5. Miss. Khadija Bi, D/o Late
Mohammed Basheer, 8 years.
Petitioners No.2 to 5 are minors,
Rep.by their mother & natural guardian
petitioner No.1, all are residing at: No.15,
1st Cross, Basavalingappa nagara, Adamji
layout, Bengaluru North, Bengaluru-77.
(Sri. E.H.Shetty Adv for petitioners)
V/s
Respondent/s: 1. SBI Gen.Ins.Co.,Ltd.,
Branch office, Ground & 1st floor,
Rukmini Towers, 3-1, Platform
road/railway Approach road,
Sheshadripuram, Bengaluru-20.
(SCCH-15) 2 MVC.4176/2015
2. N.T.Zameer Ahamed Khan Associates,
Proprietor of National Travels,
No.326/2, TSP road, Kalasipalyam
Fort, Bengaluru-2
3. Mujahid, 40 years, Occ:Driver,
R/at C/o National Travels, No.326/2,
TSP road, Kalasipalyam Fort,
Bengaluru-2
{Sri.K.Prakash Adv for Resp.No.1
Sri.H.M.Bhanu Adv for Respondent No.2
Sri.S.S.Patil Adv for Respondent No.3}
JUDGMENT
The petitioners have filed the present petition under Section 166 of Motor Vehicles Act against the respondents together for relief of compensation sum of Rs.2,00,00,000/-, in view of death of Mohammed Basheer S/o Mohammed Abubakar in a road traffic accident.
The facts of the petitions are as follows:
2. On 14.11.2013 at about 3.00 a.m., Mohamed Basheer was traveling in order to go to Mumbai for the purpose of business in Bus bearing Reg.No.KA-01-AC-
8642 on Haveri-Hubli NH-4 from Bengaluru to Mumbai, when such bus was reached near Kunimellihalli village, (SCCH-15) 3 MVC.4176/2015 after Varda River Bridge, Savanur Taluk, Haveri District, at that of time, the driver of the such bus drove in high speed and negligent manner and dashed against the Iron preventive wall which is situated at the left side of the road and after hit bus moved in zig zag manner and stopped and fire broke out in the rear side of the bus, in the result, said Mohamed Basheer sustained grievous injuries and shifted to Dist Hospital at Haveri, thereafter he was shifted to KIMS Hospital for treatment and afterthat he was shifted to Shekar Hospital Bengalore, in that Mohammed Basheer succumbed to burn injuries. In this regard Bankapura police have registered case under Cr.No.162/2013.
3. Petitioner No.1 is the wife and petitioner No.2 to 5 are the minor children of deceased Mohammed Basheer, before the accident deceased was hale and healthy and he was age 42 years and he was working as Fabrication work, interior decorator and Contractor and he was earning Rs.80,000/- per month. Petitioners have spent huge amount towards medical expenses and funeral expenses. The petitioners were depending on the (SCCH-15) 4 MVC.4176/2015 deceased income and deceased was the only earning member of the family. Thus 1st respondent is the insurer, 2nd respondent is the owner and 3rd respondent is the driver of bus bearing No.KA-01/AC-8642. Hence both respondents are jointly and severally liable to pay the compensation, therefore petitioners have prays to allow the application.
4. In pursuance of notice to the respondents and they have appeared through their respective Advocate and filed objection to the main petition.
The facts of the objection are as follows:
5. In the objection of Respondent No.1 to 3, there is no dispute regarding ownership and insurer of the Bus bearing Reg.No.KA-01-AC-8642 and denied all remaining averments which were made in the petition and 1st respondent the liability if any subject to terms and conditions of policy contended that, the driver of the offending vehicle had no valid and effective driving licence, further contended that said bus was plying without valid permit and F.C. Hence, prays to dismiss the claim petition about the Respondent No.1. (SCCH-15) 5 MVC.4176/2015
5(a). As such 2nd respondent contended that bus was insured with the 1st respondent as on the date of accident and policy was in force and driver of the bus was holding valid D.L.and he was neither negligent nor caused for the alleged accident. Since the policy was in force as on the date of accident, if at all the compensation is awarded the liability has to be fixed on the 1st respondent. Hence, prays to dismiss the claim petition about the Respondent No.2.
5{b}. Further 3rd respondent has contended that bus was fire not due to dashed to protection wall, due to the engine mechanical defect the fire of the bus, but not the driver of mistake. Hence 3rd respondent prays to dismissed the petition against him.
6. On the pleadings of both the parties, my learned predecessor was framed issues as follows:
1. Whether the petitioners are prove that deceased Sri. Mohammed Basheer was died in RTA occurred on 14.11.2013 at about 3.00 a.m., near Kunimellihalli village and after Varda river bridge, Haveri-Hubli NH-4, Savanoor taluk, Haveri dist., due to the rash and negligent driving of the driver of the Volvo Multi Axle Bus bearing Reg.No.KA-01-AC-
8642?
2. Whether the petitioners are entitled for any compensation? If so, what extent and from whom? (SCCH-15) 6 MVC.4176/2015
3. What order or award?
07. In order to proving the above said issues, petitioner No.1 herself has been examined as PW-1 and got marked Ex.P.1 to 22 and 24 to 30 and on behalf of petitioners a witness by name Mohammed Ali as PW.2 and got marked at Ex.P.23 and another witness Medical Record Keeper has been examined as PW.3 and got marked at Ex.P.31 and 32 and examined Dr.Kamal Kumar, Consultant Plastic Surgeon as PW.4. On the other hand 2nd respondent company's senior executive examined as R.W.1 and got marked at Ex.R.W.1 and a witness i.e., Superintend, RT Authority, Bengaluru as RW.2 and got marked at Ex.R.2 to 5.
08. Heard arguments of both the sides on merits of the case and perused the record.
09. Now the findings of this Tribunal on the above said issues are answered in the;
Issue No.1: In the Affirmative Issue No.2: In the Affirmative Rs. 09,05,000/- from the Resp.No.1 (SCCH-15) 7 MVC.4176/2015 Issue No.3: As per final order for the following REASONS
10. ISSUE No.1:- The Petitioners have filed the present petition under Section 166 of Motor Vehicles Act claiming the compensation in view of Death of Mohammed Basheer who died in RTA which occurred on 14.11.2013 at about 3.00 a.m. 14.11.2013 at about 3.00 a.m., near Kunimellihalli village plot, on Haveri-Hubli NH-4 road, Savanur Taluk, Haveri Dist, further there is no dispute with respect of insurer and ownership of Bus bearing Reg.No.KA-01-AC-8642. However the copy of policy marked at Ex.R.1 by R.W.1 in his chief examination. Further there is no dispute regarding death of Mohammed Basheer in RTA. However P.W.1 has produced P.M. at Ex.P.4, Death certificate at Ex.P.15, Inquest Mahazar at Ex.P.17 and charge sheet at Ex.P.21. On perusal of these documents disclosed that said Mohammed Basheer has been died in the allege accident, further more other side have also not in dispute regarding death of Mohammed Basheer in the alleged accident.
(SCCH-15) 8 MVC.4176/2015
11. Herein PW-1 has deposed that, said accident was occurred due to rash and negligent driven by the driver of Bus bearing Reg.No.KA-01-AC-8642. Contrary to that 1st respondent has contended that the alleged accident was not occurred due to the rash and negligent driving of the driver of such bus. On looking to both the pleadings, the question is arise for consideration as whether the said accident was due to rash and negligent driven by the driver of Bus bearing Reg.No.KA-01-AC- 8642 or not. In this context, P.W.1 has relied on the certified copy of FIR at Ex.P.1 and copy of complaint at Ex.P.2, Copy of Mahazar at Ex.P.3, IMV report at Ex.P.4 and charge sheet at Ex.P.5. On perusal those documents, in that Ex.P.2 disclosed that on 14.11.2013 one Mohammed Zameer S/o Mohammed Ali submit first information to the Bankapura Police regarding accident and on the same the Bankapura police have registered the case under Cri.No.162/13 and submit the FIR to concerned for the investigation of matter, On Examining Ex.P.1 to 5 it's reveals that the accident was occurred due to on actionable negligent driven by the driver of Bus (SCCH-15) 9 MVC.4176/2015 bearing Reg.No.KA-01-AC-8642. No doubt, such Ex.P.1 to 5 are the police documents, but such documents are unchallenged and undisputed documents, further there is no questioned about sanctity of those documents, as such there is no contrary evidence to such documents, further there is no rebuttal evidence to withdrawal genuine of such documents. Under these circumstance, this tribunal has been accepted the Oral evidence of P.W.1 as well as Ex.P.1 to 5 and come to conclusion that accident was occurred on the part of rash and negligent of driven by the driver of Bus bearing Reg.No.KA-01-AC- 8642. Under these circumstances, this tribunal hold, Issue No.1 is answered in the Affirmative.
12. ISSUE No.2:- Herein P.W.1 has deposed that the petitioner No.1 is the wife and the petitioner No.2 to 5 are the minor children of the deceased, in this regard P.W.1 has produced Aadhaar card and Voter I.D. of Zeenathunnisa at Ex.P.6 and 7, voter I.D. of Mohammad Basheer at Ex.P.8 and study certificates of Petitioner No.2 to 5 at Ex.P.9 to 12. On Perusal of such documents, it's disclosed that the petitioner No.1 is the wife and (SCCH-15) 10 MVC.4176/2015 petitioner No.2 to 5 are the minor children of deceased. So also other side have not disputed regarding relationship in between petitioners and deceased. Further on consider the Ex.P.9 it is disclosed that 2nd petitioner is male member of the family and now he has attained the age of majority, therefore he has not dependants of deceased, so far 3 to 5 petitioners are being the minor children of deceased, accordingly they are dependants of deceased.
13. So far, in respect of quantum of compensation is concerned, PW-1 has deposed deceased Mohammed Basheer was aged about 42 years at the time of accident, in this context, petitioners have produced Ex.P.8- election ID in that date of birth of deceased mentioned as 20.07.1970, thus on consider both date i.e., date of accident and date of birth of deceased, it is disclosed that the age of deceased as 44 years. Therefore this tribunal comes to conclusion that the age of deceased was 44 years at the time of accident. So, as per Sarla Verma and others V/s. Delhi Transport Corporation and others case the appropriate multiplier is 14.
(SCCH-15) 11 MVC.4176/2015
14. Further P.W.1 has deposed as the deceased was self employed and doing fabrication work and interior decoration and also doing contract in fabrication work and earning a sum of Rs.80,000/-per month. To establishing P.W.1 has produced Purchase Order at Ex.P.16, on perusal of Ex.P.16 it is disclosed that there is no signature of authorized thereon and petitioners have not examined the author of such documents, under such Ex.P.16 is not acceptable, accordingly petitioners have failed to establish the avocation of deceased, further so far earning of deceased concerned the P.W.1 has deposed that deceased was earning a sum of Rs.80,000/- p.m. herein in also there is no specific documents to establishing the earning of deceased, no doubt P.W.1 has produced Bank statements at Ex.P.24 to 28, in that documents nowhere mentioned as the deceased was earning sum of Rs.80,000/-p.m.
15. Further on behalf of petitioner a witness by name Mohammed Ali S/o. Dr.Amsakutty has been examined as P.W.2, he has deposed that deceased was working the fabrication and interior decoration work and (SCCH-15) 12 MVC.4176/2015 he has produced Cash-Credit Bills-Tax Invoices at Ex.P.23, the say of P.W.2 is not acceptable, because of, firstly his version is not support any documents, secondly the deceased has not working under him, further Ex.P.23 is not standing in the name of deceased. Under these circumstance petitioners have failed to prove the avocation and income of the deceased. Thus in the absence of documentary evidence regarding avocation and income of deceased, tribunal inclined towards notional income at the time of accident, admittedly the accident was occurred in the year 2013. At that time, the notional income in the society of a person who is worked on his either own skill or Art or by under any mode, that person getting the minimum income sum of Rs.5,000/- P.M. Therefore, this Tribunal has come to conclusion that deceased was earning a sum of Rs.5,000/-p.m. which comes per year as Rs.5,000x12=60,000/-. Contrary to that, there is no material place before court to discard the work and income of deceased, further there is no rebuttal evidence with regard to same. Further, admittedly deceased was married and petitioner (SCCH-15) 13 MVC.4176/2015 No.1, 3 to 5 are the dependents of deceased, hence as per Sarala Verma and others V/s. Delhi Transport Corporation and others case, this tribunal opines that it is necessary 1/4th amount shall be deducted towards personal expenses in the said amount i.e.,60,000/-. After deducting towards personal expenses of deceased, it's come 45,000 /- p.a. Further petitioners have lost love and affection and estate of the deceased. And they have spent amount for transportation of dead body and funeral expenses. Under such Circumstance, they have entitle for loss of dependency and same would be Rs.45,000x14=6,30,000/-. Further the Petitioner No.1 to 5 entitled for a compensation of Rs.1,00,000/- towards loss of love and affection, further Petitioner No.1 to 5 are entitled for a compensation sum of Rs.1,00,000/- towards loss of estate and 25,000/- towards transportation of dead body and funeral expenses. Further petitioner No,1 is wife of deceased and she has been lost her consortium life in the young age, therefore she is entitle the compensation under the head of Loss of (SCCH-15) 14 MVC.4176/2015 consortium Thus, the petitioners are entitled for just and reasonable compensation as under.
1. Loss of dependency Rs. 06,30,000/-
2. Loss of consortium Rs. 50,000/-
3. Loss of Love and Affection (Petitioner No.1 to 5) Rs. 01,00,000/-
4. Loss of Estate Rs. 01,00,000/-
(Petitioner No.1 to 5)
5. Transportation of dead body and Funeral Expenses Rs. 25,000/-
Total : Rs. 09,05,000/-
with interest at 8% p.a. from the date of petition till the date of payment.
16. Whereas, so far liability is concerned, herein, firstly, on behalf of 2nd respondent company's senior Executive by name Manoj V.G. has been examined as R.W.1 and he has deposed that the bus is violated the permit conditions by carrying more passenger than permitted and not taken any precaution as stipulated in the permit under such 2nd respondent is not indemnify the alleged liability. The say of R.W.1 is not acceptable one, because of, firstly the 1st respondent has not been furnished any material to show such bus has carrying more passenger than permitted capacity, further R.W.1 himself deposed that he don't know who many passenger (SCCH-15) 15 MVC.4176/2015 were carrying the such bus on that day and which precautions were not taken the owner of such bus. Under such circumstance the 1st respondent has failed to establish that such bas has carrying more passenger than permitted capacity. Further on behalf of 2nd respondent a witness by name H.C.Hanumanthappa who is Superintendent of State Transport Authority has been examined as R.W.2 and has got marked Ex.R.3 issued by Addittional Commissioner of Transport, Form No.49 at Ex.R.4 and Form No.47 at Ex.R.5, on Perusal of such documents it's disclosed that such bus permitted to ply throughout India and permit of such bus is valid from 09.10.2013 to 8.10.2018, it is clearly established that on the day of accident the bus was got valid permit to play on the road. Further in the cross examination of R.W.2 he has clearly admits that, there is no clause in the permit that the insurance company is not liable to pay the compensation if such bus has violated the permit conditions. Under these circumstances the say of Respondent No.2 is not acceptable.
(SCCH-15) 16 MVC.4176/2015
17. Herein there is no dispute about respondent No.1 is insurer and respondent No.2 is owner of Bus bearing Reg.No.KA-01-AC-8642. As such, the accident has been occurred and the petitioner in both petition are sustained injuries, due to rash and negligent driving of the driver of said bus. Herein, Respondent No.1 is the insurer and the Respondent No.2 is the owner of the Bus bearing Reg.No.KA-01-AC-8642. Hence respondent No.1 is liable to pay the compensation to the respective petitioners as calculated in the above table with interest @ 8% p.a. from the date of petition till realization. Under these reasons, I answer issue No.2 in the affirmative.
18. Issue No.3:- from the above discussions, this Tribunal proceeds to pass the following order.
ORDER The Petitions is under Section 166 of MV Act filed by petitioners against the Respondent No.1 is hereby allowed in part with costs.
The respondent No.1 is liable to pay sum Rs.9,05,000/- to the petitioners with interest @ 8% p.a., from the date of petition till realization., (SCCH-15) 17 MVC.4176/2015 Hereby directed the Respondent No.1 deposit the compensation amount before the court within two months from the date of Award.
The petitioners No.1 to 5 are entitled to share as 30:10:20:20:20 in the compensation amount;
After deposit the compensation amount in that, share of compensation of 1st petitioner, 60% shall be released in favour of the petitioner No.1 through account payee cheque with proper identification. The Balance amount of 40% and interest thereon shall be deposited in the name of the petitioner in any nationalized or schedule bank for a period of 3 years.
So far, compensation amount the
share of the petitioner No.3 to 5 are
concerned, after deposit of the entire
amount, same shall be deposit in the name of such petitioner No.3 to 5 under guardianship of their mother in any nationalized, scheduled bank till she attains age of 21 year.
Further, so far, Petitioner No.2 is concerned, after deposit of the said (SCCH-15) 18 MVC.4176/2015 compensation share amount and same is meager one, therefore entire amount and interest thereon if any shall be released in favour petitioner No.2 through account payee cheque with proper identification.
Advocate's fee is fixed at Rs. 1,000/-
each case;
Draw award accordingly.
(I have personally typed on the my Lap-top, corrected by me and then pronounced by me in open court of this 1st day of September 2017) (RAJANNA SANKANNAVAR) XIII Addl. Judge & Member MACT Court of Small Causes, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PETITIONER:
PW.1 Zeenath Unnisa PW.2 Mohammed Ali PW.3 Mahesh M PW.4 Dr.Kamal Kumar
LIST OF WITNESSES EXAMINED ON BEHALF OF RESPONDENTS:
RW.1 Manoj V.G. RW.2 H.C.Hanumanthappa
LIST OF DOCUMENTS Marked ON BEHALF OF PETITIONER:
Ex.P1 : Complaint
Ex.P2 : FIR
Ex.P3 : Mahazar
Ex.P4 : PM report
Ex.P5 : Marriage certificate
Ex.P6 : Aadhaar card
Ex.P7 & 8 Election ID cards
Ex.P.9 to 12 Study certificates
Ex.P.13 Cemetery certificate
Ex.P.14 IMV report
Ex.P.15 Death certificate
(SCCH-15) 19 MVC.4176/2015
Ex.P.16 Purchase order copy
Ex.P.17 Inquest mahazar
Ex.P.18 Copy of police intimation
Ex.P.19 2 spot sketch
Ex.P.20 Reservation ticket
Ex.P.21 Charge sheet
Ex.P.22 2 photos
Ex.P.23 Tax invoice
Ex.P.24 to Bank statements
28
Ex.P.24(A) Authorization letter
Ex.P.25(A) Case sheet of Mohammed Basheer
Ex.P.29 3 receipts
Ex.P.30 2 passports
LIST OF DOCUMENTS Marked ON BEHALF OF RESPONDENTS:
Ex.R.1 Copy of policy
Ex.R.2 Endorsement
Ex.R.3 Explanation
Ex.R.4 Form No.49
Ex.R.5 Form No.47
(Rajanna Sankannanavar)
XIII Addl.Small Cause Judge
& Member MACT, Bengaluru.