Bangalore District Court
Smt.Nirmalamma vs Sri.Manjunath.K.M on 3 January, 2022
KABC020321492019
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS
TRIBUNAL, BANGALORE CITY.
SCCH14
Present: Smt.Parveen A Bankapur,
B.Com.LL.B.(Spl),
Member, MACT,
XVI ADDL. JUDGE,
Court of Small Causes,
BENGALURU.
MVC No.7688/2019
Dated this the 3rd day of January 2022
Petitioner/s : 1.Smt.Nirmalamma,
W/o Narayanappa,
Aged about 54 years.
2.Sri.Narayanappa,
S/o Late Munishamappa,
Aged about 60 years.
Both are r/at:
Thippasandra Village,
Shapur Post,
Kolar Taluk & District
(By pleader Sri.N.M)
V/s
SCCH14 2 MVC.7688/2019
Respondent/s 1.Sri.Manjunath.K.M.
S/o Munishamappa,
R/at No.401,
Ground Floor,
Renaissance Apartments,
10th Main, 15th Cross,
Near MES College,
Malleshwaram,
Bengaluru 560 003.
(Exparte)
2.Bharathi AXA General
Insurance Co.Ltd.,
1st Floor, Ferns Icon,
Survey No.28,
Dodda Nekkundi,
K.R.Puram Hobli,
Bengaluru 560 037.
Now known as:
ICICI Lombard General
Insurance Co.Ltd.,
9th Floor,
The Estate No.121,
Dickenson Road,
M.G.Road,
Shivan Chetty Layout,
Bengaluru 560 042.
(By pleader Sri.K.P)
:JUDGMENT:
The petitioners have filed this claim petition U/Sec.166 of M.V. Act for awarding compensation of Rs.50,00,000/ in SCCH14 3 MVC.7688/2019 view of death of Muralidhara N S/o Narayanappa in a road traffic accident dated 25.09.2019.
2. In brief, the case of the petitioners are as under:
It is alleged that, on 25.09.2019 at about 6.40 a.m., when the deceased Muralidhara was riding Hero Splendor plus motor cycle bearing Reg.No.KA07EC3373 near Thippasandra village gate, on Bethamangala Kolar road, Kolar Taluk and District, at that time a Maruthi Brezza car bearing Reg.No.KA04MS3024 driven by its driver in rash and negligent manner lost control over the vehicle, went to its wrong side of the road and on to mud footpath and dashed against the motor cycle. Due to impact, the deceased fell down and sustained grievous injuries. Immediately after the accident, the deceased was taken to R.L.Jalappa hospital, Kolar wherein he succumbed to the said injuries on the same day, during the course of treatment.
Prior to this accident, deceased was hale and healthy person and he was working as High School teacher at Suguna Educational Trust and getting a salary of Rs.15,000/ per month. Due to this accident, the petitioners lost their only son and the earning member of the family and facing much difficulties in day today life. It is stated by the petitioners that, the said accident was occurred due to rash and negligent driving of the driver of Maruthi Brezza car SCCH14 4 MVC.7688/2019 bearing Reg.No.KA04MS3024. The respondent No.1 and 2 are the owner and insurer of the said offending vehicle. Therefore, the petitioners are constrained to file this claim petition.
3. After service of notice, the respondent No.2 appeared through its counsel and filed writtenstatement. The respondent No.1 remained absent and placed exparte.
The brief averments of the written statement of respondent No.2 is as under:
The respondent No.2 has contended that the petition is not maintainable either in law or on facts, hence the petition is liable to be dismissed. Further contended that this respondent is the insurer of car bearing No.KA04MS3024 and liability is subject to the terms and conditions of the policy. Further respondent No.2 has denied the accident, manner in which the accident took place and rash and negligent driving of the offending car bearing Reg.No.KA04 MS3024 and also denied that due to the impact, the deceased sustained grievous injuries and died during the treatment. Further contended that, the driver of the vehicle had no valid and effective driving licence at the time of accident and the owner of the vehicle had entrusted to a person who had no valid and effective licence and hence, this is a willful breach of policy condition by the insured. It is also contended that, the car bearing Reg.No.KA04MS3024 SCCH14 5 MVC.7688/2019 was not having valid permit and fitness certificate. It is further contended that the accident took place due to negligence on the part of the deceased himself who was at all wearing prescribed helmet and hence sustained injuries to the head and resulted his death. Further denied age, avocation and income of the deceased. The compensation claimed by the petitioner is exhorbitant. Hence, the respondent No.2 is not liable to pay compensation to the petitioner. Hence, on other grounds, the respondent No.2 prayed for dismissal of the claim petition with costs.
4. On the basis of above pleadings, the following issues were framed:
ISSUES
1. Whether the petitioner prove that they are the legal representative of the deceased?
2. Whether the petitioners prove that Muralidhara.N S/o Narayanappa died due to injuries sustained by him in an accident occurred on 2509.2019 at about 6.40 a.m., near Thippasandra village gate, on Bethamangala Kolar road, Kolar Taluk and District, arising due to rash and negligent driving of driver of car bearing No.KA04MS3024?
3. Whether the Petitioners are entitled for compensation? If so, how much and from whom?
4. What Order or Award?
5. In order to prove their case, petitioner No.1 himself examined as PW1 and got marked documents as Ex.P.1 to SCCH14 6 MVC.7688/2019 Ex.P.22. On the other hand, respondents have not adduced any documentary or oral evidence.
6. I have heard both sides. The learned counsel for respondent No.2 relied on the decisions reported in as under;
1. 2005 ACJ 1323.
(National Insurance Co.Ltd., Vs.Prema Bai Patel and others)
2. 2012 AIR SCW 2241 (Surinder Kumar Arora and another Vs.Dr.Manoj Bisla and others)
3.MFA No.30284/08(MV) (Ramalingappa Vs.Shivarao and others). Perused the materials on record and the decision relied by the learned counsel for the respondent No.2.
7. My findings to above raised issues are as follows;
Issue No.1 : In the Affirmative
Issue No.2 : In the Affirmative
Issue No.3 : Partly in the affirmative
Issue No.4 : As per final order,
for the following;
:R E A S O N S:
8. Issue No.1: In this case, the petitioner No.1 is mother and petitioner No.2 is father of the deceased Muralidhara. In order to prove that they are legal heirs of the deceased, PW.1 has produced notarized copies of Aadhar card SCCH14 7 MVC.7688/2019 of deceased and petitioners respectively. Ex.P18 to 20 are the Aadhar cards of deceased and petitioners. These documents reveal that, petitioners are the parents of the deceased. Even the Respondent No.2 has not disputed the relationship between the deceased and petitioners. Admittedly, petitioners are parents of the deceased and legal heirs of the deceased. Under such circumstances, considering the facts and circumstances of the case, this Tribunal comes to the conclusion that, the Petitioners are legal heirs of the deceased. Hence, I answer the Issue No.1 in the affirmative.
9. Issue No.2: Since the petitioners have filed this petition U/s.166 of M.V. Act therefore, the burden is on them to prove the said accident and not only the said accident but also the alleged negligent driving by the driver of car bearing No.KA04MS3024.
10. The petitioner No.1 who is the mother of the deceased entered into witness box as PW1 by filing her affidavit as examinationinchief and she is not an eyewitness to the said accident. Further she got marked in all 20 documents. Ex.P.1 is copy of FIR along with complaint registered in Kolar Rural police station in Crime No.377/2019 against the driver of car bearing No.KA04MS3024 under Section 279, 337 of IPC read with under Section 187 of IMV SCCH14 8 MVC.7688/2019 Act. Ex.P2 is the intimation to the court by Police, Ex.P.3 is the copy of statement of Sonnappa, Ex.P.4 is the copy of spot panchanama along with sketch, Ex.P.5 is copy of MVI report, Ex.P.6 is the copy of Inquest panchanama of deceased, Ex.P7 is the copy of PM report of deceased and Ex.P8 is the copy of charge sheet filed against driver of car.
11. The documents marked at Ex.P1 to 8 makes it clear that, the accident was taken place on 25092019 at about 06.40 p.m., The driver of the car bearing No.KA04MS 3024 drove in rash and negligent manner and dashed against the motor cycle and deceased sustained grievous injuries and died on the spot. One Subhash Gangadhar lodged the complaint on the same day of the accident. The police have conducted the spot mahazar and in the hospital conducted the inquest panchanama of the deceased body. After detailed investigation I.O. has filed chargesheet against the driver of the car, these documents would support the case madeout by the petitioners in respect of alleged negligent driving by the driver of the said offending vehicle.
12. The counsel for the respondent No.2 subjected PW1 to the crossexamination. PW1 has admitted that she has not seen the accident. She has admitted the suggestion that, as per police records. the accident took place when her son was talking over the phone. She has denied the SCCH14 9 MVC.7688/2019 suggestion that, the accident took place due to his negligence and not due to negligent driving of driver of car.
13. On the other hand, the respondents have not adduced any oral or documentary evidence.
14. Besides, as has been stated above, the jurisdictional police have investigated the accident in question and filed the 'A' charge sheet at Ex.P8 wherein the police have made specific allegation that the accident in question had taken place because of the actionable negligence of the driver of the offending vehicle i.e., respondent No.2. Besides, the respondent has not produced anything to show that they have challenged the correctness of the 'A' charge sheet filed by the jurisdictional police; hence, it is sufficient to conclude that the materials available on record are sufficient to conclude that the accident in question had taken place because of the actionable negligence of the driver of the offending vehicle.
15. Besides, it is well settled that in motor vehicle accident compensation cases the strict proof of negligence is not required. This view of this court receives support from the law declared by the Hon'ble Apex Court in the decision reported in 2009 (13)SCCpage530 in the case of Bimla Devi and others Vs Himachalapradesh Road Transport SCCH14 10 MVC.7688/2019 Corporation and another and another decision reported in AIR 2011SC1504 in the case of Paraeshwari Vs Amir Chand and others. Thus, even this ratio laid down by the Hon'ble Apex Court is also sufficient to conclude that this court is not supported to look for strict proof of negligence on the part of the driver of car bearing Reg.No. KA04MS3024.
16. The next question would be, whether the son of petitioner was sustained grievous injuries in the accident and died during treatment. It is relevant to note that the petitioner has produced the Ex.P 6 and 7 are the Inquest panchanama and PM report of deceased. Therefore, after considering all the police documents and evidence of PW1 in my opinion, the petitioner has proved that the said accident was only because of actionable negligence on the part of the driver of offending vehicle and deceased was sustained grievous injuries in the said accident and died. With these observations, I have answered issue No.2 in the Affirmative.
17. Issue No.3: The petitioners have proved the Issue No.1 and Issue No.2. The respondent No.2 has not seriously disputed the existence of insurance policy. Therefore, under these circumstances, petitioners being the legal heirs of the deceased are entitled for compensation.
SCCH14 11 MVC.7688/201918. The contentions of the petitioners is that, deceased had studied M.A. in Kannada and B.Ed., and also done Diploma in Education and working as High School teacher at Suguna Educational Trust and getting salary of Rs.15,000/ p.m. In this regard, the petitioner No.1 has produced salary certificate at Ex.P.17. However, he has not examined author of Ex.P.17. Any how the deceased was doing some work. Therefore, this tribunal has to assess the notional income of the deceased by taking into consideration his age, his occupation, his place of residence and minimum wages and date of accident, evidence of PW2 etc. After considering all these aspects, I am inclined to take notional income of the deceased as Rs.12,000/ p.m.
19. As already discussed in issue No.1, petitioner No.1 and 2 are parents of the deceased. Therefore, they are dependents of the deceased.
20. As per aadhar card of deceased at Ex.P18, the date of birth is shown as 25.09.1989. The accident took place on 25092019. On the date of accident, the deceased was aged 30 years. Since the deceased was 30 years old at the time of the accident. Therefore, the proper multiplier for the age group from 25 to 30 years is "17".
21. Besides, so far as adding of future prospects to the income of deceased is concerned, however, I have relied upon SCCH14 12 MVC.7688/2019 the ruling reported in 2018 ACJ 5(SC) (Hemraj Vs Oriental Insurance Co., Ltd., & Ors) wherein it is held as under:
"QuantumFatal accident Principles of assessmentFuture prospectsDeceased aged 40Upholding objection of insurance company that principle of addition on account of future prospects is not applicable where income of the deceased is determined by guesswork, High court disallowed the addition of 50 percent made by the tribunal for future prospects while computing compensationWhether addition on account of future prospects is admissible where minimum income is determined on guesswork prospects is admissible where minimum income is determined on guesswork in the absence of proof of income Held: yes; there cannot be distinction where there is evidence of income and where minimum income is determined on guesswork; executing court directed to recompute entitlement of claimants by addition 40 percent of income for future prospects and make corresponding deduction towards personal expenses."
And also considering recent judgment passed by the Hon'ble Supreme Court in Civil Special Leave Petition(Civil No.25590/2014 dated 31102016 (National Insurance Company Ltd., VS Pranay Sethi and others). Wherein it is held that, the person who is self employed and his age is below 40 years at the time of accident, 40% future prospects and his age is above 50 years and below 60 years at the time SCCH14 13 MVC.7688/2019 of accident, 25% and 10% respectively future prospects has to be added to the income of the deceased.
22. In this case, the deceased was aged about 21 years as on the date of accident. Considering the same, if 40% future prospects is added to the income of the deceased, it would work out at Rs.16,800/(12,000+40%) per month.
23. Since the deceased was bachelor and therefore half of his income is to be deducted towards his personal and living expenses. Under these circumstances, the petitioners are entitled for compensation of Rs.17,13,600/ under the head loss of dependency. [Rs.16,800/ less 50%=8,400/ X 12 X 17= Rs.17,13,600/].
24. Further, so far as awarding compensation under other conventional heads are concerned, the petitioner has stated that, they have spent huge amount towards shifting of dead body and performing of funeral and obsequies ceremony. In this regard, the Hon'ble Supreme Court judgment passed in Civil Special Leave Petition(Civil No.25590/2014 dated 31102016 (National Insurance Company Ltd., VS Pranay Sethi and others). Wherein it is held that, as far as conventional heads are concerned the petitioner is entitled funeral expenses of Rs.15,000/ and the petitioner is the mother of the deceased is entitled for SCCH14 14 MVC.7688/2019 compensation of Rs.40,000/ under the head for filial consortium and petitioner is entitled for compensation under the head of loss of estate at Rs.15,000/.
25. Therefore, on all possible heads, the petitioners are entitled for compensation as under:
1. Loss of dependency Rs.17,13,600/
2. Transportation of dead body Rs. 15,000/ and Funeral Expenses
3. Filial consortium Rs. 40,000/
4. Loss of estate Rs. 15,000/ Total Rs.17,83,600/ So, petitioners are entitled for the total compensation of Rs.17,83,600/ only.
26. Liability: The petitioners have proved that said accident occurred because of negligence on the part of driver of the car bearing No.KA04MS3024. Admittedly, the respondent No.2 has takenup several contention in its written statement, but failed to prove that there is violation of the terms and conditions of the policy.
The learned counsel for respondent No.2 argued that, at the time of accident deceased was not holding valid driving licence to riding the motorcycle. Further, learned counsel for respondent No.2 has relied above decisions. On the other hand the learned counsel for petitioner has relied 2019 ACJ SCCH14 15 MVC.7688/2019 42 of Supreme Court of India, in Saraswati Palariya and others Vs New India Assurance Co Ltd., and other, it is held that, the finding of the High Court of Contributory negligence on the ground that the deceased was driving the vehicle without a driving licence is equally unsustainable. Driving without a valid driving licence may expose the claimant(s) to other liabilities but no inference of contributory negligence can be arrived at on that basis.
Therefore, considering facts and circumstances of the case, the accident was occurred because of negligence on the part of driver of offending vehicle and there was no any dispute about insurance coverage to the said vehicle as on the date of accident. Even I have held that the respondent No.2 has failed to prove the violation of terms and conditions of insurance policy. Therefore, the petitioners are entitled for compensation from respondent No.2.
By considering the present days FD rate of interest in the nationalized bank it is just and necessary to direct the respondent No.2 to pay the compensation amount with interest at the rate of 7% p.a., from the date of petition till the date of payment. Accordingly, I answered Issue No.3 Partly in the Affirmative.
27. Issue No.4: For the foregoing reasons, I proceed to pass the following;
SCCH14 16 MVC.7688/2019ORDER The claim petition filed by the petitioners U/Sec.166 of M.V.Act is hereby allowed partly with costs.
The petitioners are entitled for total compensation of Rs.17,83,600/ along with interest at the rate of 7% per annum from the date of petition till its realization.
The respondent No.1 and 2 are jointly and severally liable to pay said compensation amount to the petitioners. The respondent No.2 shall deposit the compensation amount within two months from the date of this order.
Petitioner No.1 and 2 are entitled to 50% each share in the total compensation amount.
After deposit of compensation, Out of compensation amount apportioned to petitioner No.1 and 2, 50% shall be kept in F.D. in any nationalized or schedule bank in the name of petitioner No.1 and 2. Remaining 50% balance amount of petitioner No.1 and 2 with accrued interest shall be released to the petitioner through RTGS/NEFT by way of Epayment.
Advocate fee is fixed at Rs.2,000/.
Draw award accordingly.
(Typed by me on laptop, corrected, signed & then pronounced by me in open court on this 3rd day of January, 2022) (Smt.Parveen A Bankapur) XVI ADDL.JUDGE, Court of Small Causes, Bangalore.
SCCH14 17 MVC.7688/2019ANNEXURE Witnesses examined for the petitioners PW1 : Nirmalamma Documents marked for the petitioners Ex.P1 True copy of FIR along with complaint Ex.P2 True copy of intimation to the court by police Ex.P3 True copy of statement of Sonnappa Ex.P4 True copy of spot panchanama along with sketch map Ex.P5 True copy of MVI report Ex.P6 True copy of inquest panchanama Ex.P7 True copy of PM report Ex.P8 True copy of charge sheet Ex.P9 Notarised copy of SSLC marks card Ex.P10 Notarised copy of convercation certificate Ex.P.11 Notarised copy of B.Ed.marks card Ex.P.12 Notarised copy of convercation certificate Ex.P.13 Notarised copy of Diploma marks cards Ex.P.14 Notarised copy of Diploma certificate Ex.P.15 Notarised copy of Teachers eligibility certificate Ex.P.16 Notarised copy of certificate of General competitive exam Ex.P.17 Salary certificate Ex.P.18 to 20 Notarised copy of aadhar card Ex.P.21 & 22 Notarised copy of Election ID cards SCCH14 18 MVC.7688/2019 Witnesses examined for the respondents: None Documents marked for the respondents: NIL XVI ADDL.JUDGE , Court of Small Causes & MACT., Bengaluru.