Bangalore District Court
Selvi vs Daya Nandan on 23 January, 2025
KABC020117402021
BEFORE THE MOTOR ACCIDENT CLAIMS
TRIBUNAL, BANGALORE. (SCCH-9)
DATED THIS THE 23rd DAY JANUARY 2025
PRESENT:
Smt.Nirmala.M.C,B.Com.,L.L.B
JUDGE & ACJM, COURT OF SMALL CAUSES.
MVC No.1663/2021
PETITIONERS: 1) Smt. Selvi,
W/o. Dayanand.S,
Aged about 45 years.
2. Kum. Dayasharun S.D,
D/o. Dayanand.S,
Aged about 20 years.
Both are R/at Padukote Post,
Heggadadevana Kote Talluku,
Gandhi Nagara,
Mysore - 571 189.
(By Sri.K.N.Paramesha - Adv.)
V/s
SCCH-9 2 MVC.No.1663/2021
RESPONDENTS: 1) Mr. Daya Nandan,
S/o. Shantharaju,D,
No.209, Gandhinagara,
HD Kote Taluk,
Mysore District - 571 114.
(Owner of the Motorcycle bearing
reg.No.KA-45-X-7911)
(Exparte)
2) The Manager,
The Oriental Insurance Co. Ltd.,
TP Hub.No.44/45, 3rd Floor,
Lep Shopping Complex, MG Road,
Bengaluru - 560 001.
Policy No.422406/31/2019/671
valid from 29.04.2018 to 28.04.2019.
(By Sri.S.Maheswara - Adv.)
JUDGMENT
This claim petition is filed by the petitioners claiming compensation of Rs.50,00,000/- with interest from the date of petition till its realization for the death of Mr.Stephen Pushparaj.S.D S/o. Dayanand.S in a Road Traffic Accident.
2. The petition averments in brief is that:- SCCH-9 3 MVC.No.1663/2021
On 23.03.2019 at about 11.45 pm., when Mr.Stephen Pushparaj.S.D (herein onward refer as deceased) was proceeding in a motor cycle bearing reg.No.KA-45-X-7911 as pillion rider on KRS Road, infront of Railway stadium, Yadavagiri, Mysuru city, at that time, the rider of the said motor cycle rode the same in a very high speed in a rash and negligent manner and dashed against the road side footpath. Due to said impact, the deceased fell down and succumbed to injuries on the way to hospital. Post mortem was conducted at Mysore Medical College & Research Institute, Mysore.
Prior to the accident, deceased was working as an Apprentice Trainee at BEML Ltd., and was getting an income of Rs.25,000/- per month. As the accident occurred due to rash and negligent riding of the rider of the said motor cycle, the 1 st respondent being the SCCH-9 4 MVC.No.1663/2021 owner and 2nd respondent being the insurer are jointly and severally liable to pay the compensation to the petitioners who lost their bread earner in the accident. Hence, petitioners constrained to file a petition for compensation.
3. After service of notice the respondent No.1 remained absent and placed exparte. The respondent No.2 appeared through its counsel and filed its objection/written statement.
The brief contents of written statement of respondent No.2 is as under:
This respondent has denied the contents of claim petition specifically and categorically. Respondent admitted the issuance of the policy to the motor cycle bearing reg.No.KA-45-X-7911 and liability to indemnify the 1st respondent is subject to the terms and conditions of the policy and seeks SCCH-9 5 MVC.No.1663/2021 protection under Section 147 and 149(2) of MV Act. It has also contended that the owner of the alleged offending vehicle and the concerned police have not complied the mandatory provisions of Sec.134(c) and 158(6) of MV Act. The rider of the motor cycle was not holding valid and effective driving license as on the date of accident. This respondent contended that the complaint lodged after the lapse of one day. It has specifically contended that, the rider of the said motor cycle was not holding valid and effective driving licence as on the date of the accident and was not qualified for holding or obtaining such driving licence and not satisfied the requirements of the Rule 3 of the Central Motor Vehicles Rules 1989. The respondent No.1 knowingly entrusted such person to rider the motor cycle and thereby owner of the vehicle committed breach of terms and SCCH-9 6 MVC.No.1663/2021 conditions fo the policy. Further contended that, the the jurisdictional police after thorough investigation have filed charge sheet under Section 3(1), 181, 5 (180) of M V Act stating that rider of the alleged motor cycle was not holding valid and effective driving licence to driver the vehicle as on the date of accident and also thereby violated the terms and conditions of the policy. Further contended that, after thorough investigation police have filed charge sheet under Section 128, 177, 185, 129 of M V Act stating that three persons were proceeding on a motor cycle and all of them were consumed alcohol as on the date of accident and thereby violated the policy condition. Further it has contended that, deceased was not wearing helmet and thereby also violated the policy condition as per Section 129 of MV Act. The compensation claimed by the petitioners SCCH-9 7 MVC.No.1663/2021 is highly excessive and exorbitant. Hence, this respondent prayed to dismiss the petition.
4. On the basis of above pleadings the following issues were framed;
ISSUES
1. Whether the petitioners prove that the deceased Sri.Stephen Pushparaj.S.D died due to the injuries sustained in Road Traffic Accident on 23.03.2019 at about 11.45 p.m., as the deceased was a pillion rider on motor cycle bearing Reg.No.KA-45-X-7911 along with his friend Keerthi as a rider on KRS Road, infront of Railway Stadium, Yadavagiri, Mysuru City, within the jurisdiction of VV Puram Traffic PS, Mysuru City, at that time the rider of the above motor cycle rode the same with high speed in a rash and negligent manner and dashed against deceased. Due to the impact, deceased fell down and sustained grievous injuries and succumbed to death?
2. Whether the petitioners are entitled for compensation as claimed ? If so, to what amount and from whom ?
3. What order or award?
SCCH-9 8 MVC.No.1663/2021
5. In order to prove the case, the petitioner No.1 herself examined as PW.1 and got marked documents at Ex.P1 to Ex.P10. One witness was examined as PW2 and got marked document at Ex.P.10 and 11 (Ex.P.10 marked twice). On behalf of respondent No.2, its Deputy Manager has examined as RW.1 and got marked Ex.R.1 to 6(a). Police Inspector, Kushalnagar has examined as RW.2 and got Ex.R.7 to 9 and closed their side evidence.
6. I have heard the arguments of both side and perused the materials available on record. The learned counsel for respondent No.2 has relied upon the judgment MVC No.3616/2020 (Sri Pavan and another Vs. Manjunatha and others).
7. My answer to the above issues are as under:
Issue No.1: In the Affirmative.
Issue No.2: Partly in the Affirmative. SCCH-9 9 MVC.No.1663/2021 Issue No.3: As per final order;
for the following:
REASONS
8. Issue No.1:- In order to prove the case, the petitioner No.1 herself examined as PW.1 and filed affidavit in lieu of chief examination by reiterating all the facts mentioned in the petition that on 23.03.2019 at about 11.45 pm., when her deceased son Stephen Pushparaj.S.D was proceeding in a motor cycle bearing reg.No.KA-45-X-7911 as pillion rider on KRS Road, infront of Railway stadium, Yadavagiri, Mysuru city, at that time, the rider of the said motor cycle rode the same in a very high speed in a rash and negligent manner and dashed against the road side footpath. Due to said impact, her deceased son fell down and succumbed to injuries on the way to hospital.
SCCH-9 10 MVC.No.1663/2021
9. PW.1 also relied documents at Ex.P1 to P10. The Ex.P1 is the FIR with complaint, Ex.P2 is the sketch, Ex.P3 is the mahazar, Ex.P4 is the IMV Report, Ex.P5 is the Inquest Report, Ex.P6 is the Post Mortem Report, Ex.P7 is the true copy of charge sheet, Ex.P8 is the notarised copy of Aadhaar cards, Ex.P.9 is the ID card of deceased and Ex.P.10 is the bank statement.
10. On perusal of Ex.P.5 inquest report and Ex.P.6 post mortem report shows that, deceased died due to head injuries. The death is not in dispute. Moreover in a claim petition arising out of the accident the proving of negligence of offending vehicle is only preponderance of probabilities and not standard of proof beyond all reasonable doubt as required in criminal case. This principles of law was laid down by Hon'ble High Court of Karnataka, in the SCCH-9 11 MVC.No.1663/2021 decision reported in 2011 SAR (Civil) 319 (Kusum & Others V/s Satbir & others). Therefore, the oral and documentary evidence adduced by petitioners clearly establishes that the accident was occurred due to rash and negligence act rider of the offending motor cycle bearing Reg.No. KA-45-X-7911. Therefore, I am of the opinion that the petitioners have proved issue No.1. Hence, I answered issue No.1 in the Affirmative.
11. Issue No.2: Petitioners No.1 and 2 have produced their Aadhar cards and also produced Aadhar card of deceased and in all got marked at Ex.P.8. On perusal of Ex.P8 clearly goes to show that the petitioners are the mother and sister of deceased and they are considered as legal heirs and dependant of deceased. Therefore, petitioners are entitled for compensation. To assess the SCCH-9 12 MVC.No.1663/2021 compensation, the Tribunal has to look into several factors like age, avocation, income of deceased, conveyance charges, funeral and obsequies, towards loss of love and affection, etc., let me discuss one by one.
(A) Towards dependency and loss of future earnings:
In the petition the age of deceased Stephen Pushparaj.S.D has shown as 21 years. The petitioners produced Ex.P8 Aadahar card of deceased which shows he was born in the year 1998 and accident occurred on 2019. At the time of accident deceased was 21 years. In Pranay Sethi and others Hon'ble Supreme Court held that the age of the deceased is to be considered for applying multiplier. As per dictum of Hon'ble Supreme Court in Sarala Verma case "18" multiplier is applicable SCCH-9 13 MVC.No.1663/2021 in present case. The petitioners contended that their deceased son was working as Apprentice Trainee and was earning Rs.25,000/- per month. To prove the same, petitioners have produced Ex.P.10 - Canara Bank Pass book. In this regard, Petitioners have examined have also examined Training In-charge, BEML Ltd., Mysore as PW.2 and got marked Ex.P.10
- authorisation letter (twice marked) and Ex.P.11 - details of salary of deceased. On perusal of Ex.P.11, an average of Rs.10,266/- (Rs.1,23,190/- (/) 12) is considered as monthly income of the deceased.
In view of ratio laid down by the Hon'ble Supreme Court of India, the petitioners are entitled for future prospects. In Pranaya Sethi and other Case the Hon'be Supreme Court held that in case the deceased was self employed or on a fixed salary an addition of 40% of the established income should SCCH-9 14 MVC.No.1663/2021 be warranted where the deceased was below age of 40 years. As on the case on hand deceased was aged about 21 years. Hence, in view of ratio laid down by the Hon'ble Supreme Court, petitioners are entitled for additional 40% of salary to the established income. The established income of the deceased was Rs.10,266/- and 40% of 10,266/- is Rs.4,106/-. So, the total gross income of deceased was Rs.10,266/-
+ Rs.4,106/- = Rs.14,372/- p.m. Admittedly deceased was a bachelor, hence as per ratio laid down by the Hon'ble Supreme Court of India in the above reported judgments 50% of income of the deceased is to be deducted towards his personal expenses and 50% is to be taken as dependency and it would come Rs.7,186/- p.m. The Petitioners are the mother and sister of deceased and they are considered as a dependent of the deceased. Thus SCCH-9 15 MVC.No.1663/2021 petitioners No.1 & 2 are entitled to compensation of Rs.15,52,176/- (7,186/-X 12 X 18) towards loss of dependency.
(B) Towards Consortium, loss of estate and funeral expenses; In view of Judgment of Hon'ble Supreme Court of India, in between United India Insurance Co. Ltd V/s Satinder Kaur @ Satwinder Kaur and others in Civil Appeal No.2705 of 2020 & in between National insurance company LTD V/s Pranay Sethi and Ors, the petitioner No.1 and 2 being the mother and sister of deceased are entitled Rs.40,000/- each towards loss of filial Consortium and they are also entitled for Rs.15,000/- towards loss of estate Rs.15,000/- towards funeral expenses.
Thus, the petitioners are entitled for compensation as follows:
SCCH-9 16 MVC.No.1663/2021
No Particulars Amount
a. Towards dependency Rs.15,52,176/-
& loss of future
earnings.
b. Towards filial Rs.80,000/-
Consortium
(40,000/- x 2)
c. Towards, loss of Rs.30,000/-
estate and funeral
expenses
Total Compensation Rs.16,62,176/-
12. In respect of interest is concerned, in MFA.No.100090 of 2014 C/w. MFA.No.25107 of 2013 between Vijay Ishwar Jadhav and others Vs. Ulrich Belchior Fernandes and another, wherein the Hon'ble High Court of Karnataka at Page No.7 at Para No.15 held as follows:
"However, the provisions of Section 149(1) of the Act to the extent they speak of interest payable on the compensation amount is in the nature of an exception to the general law enacted in 169 of the M.V.Act and therefore, the provisions of Section 34 of CPC to that extent become SCCH-9 17 MVC.No.1663/2021 invocable on the general principles of construction of statutes namely the special law overrides the general law. Therefore, in the absence of any other law relating to interest on Judgments, the MACT has to follow the provisions of Section 34 of CPC, 1908. Thus, in the given circumstances of this case, interest at the rate of more than 6% could not have been awarded."
In view of ratio and dictum laid down by the Hon'ble High Court of Karnataka in the above judgment, the petitioners are entitled for interest @ 6% per annum from the date of petition till its realization.
13. It is already held that the accident occurred due to rash and negligent riding of the rider of offending vehicle. The 2nd respondent contended that the rider of offending vehicle was not holding valid and effective driving license at the time of alleged accident and owner has entrusted the vehicle to the said rider who has not having driving license. SCCH-9 18 MVC.No.1663/2021 In this regard, respondent No.2/insurance company has examined its Deputy Manager as RW.1 who has deposed that, owner of the offending vehicle violated the terms and conditions of the policy as the rider has not holding valid and effective driving licence as on the date of accident and moreover police have filed charge sheet under Section 3(1) 181, 5(180) of MV Act. Through him got marked Ex.R.1 to Ex.R.6(a). As per Ex.R.2 policy which is standing in the name of respondent No.1 i.e., Daya Nandan. Police Inspector, Kushalanagar has also examined as RW.2 and through him got marked Ex.R.7 - notice and Ex.R.8 - reply to the notice. During cross examination he has deposed that, as the respondent No.1 is the R.C.Owner of the offending vehicle has filed charge sheet against as Accused No.2. Further he has deposed that, they have not issued any notice SCCH-9 19 MVC.No.1663/2021 to the rider of the motor cycle about the driving licence and also deposed that they have not obtained any other statement about the holding of driving licence with the rider of the motor cycle. Moreover on perusal of Ex.R.8 - reply of the police notice it can be seen that, rider has not given any information about the holding of driving licence.
14. On going through the same, it came to know that, there is no material forthcoming to hold that rider of offending vehicle was possessing valid and effective driving licence as on the date of accident. Under such circumstances, the question arose who has to pay the compensation to the petitioners for the death of deceased Stephen Pushparaj.S.D. Admittedly, once Owner/insured violated the policy conditions, the insurer is not liable to pay the compensation and the SCCH-9 20 MVC.No.1663/2021 owner/Insured is liable to pay the compensation to the accidental injuries. In view of proof of driver is not possessing valid driving licence at the time of accident where the liability of the Insurance company is exonerate or not is required to be considered.
15. In view of the judgment of Apex Court reported in (2018) 3 Supreme Court Cases 208 (Pappu and others Vs. Vinod Kumar Lamba and another) wherein it is held that:
"C. Motor Vehicles Act, 1988 Ss.149(2), 166 and 168 Defence of unauthorised driver within valid licence Insurer succeeding in establishing its defense Consequnce of Held, owner of vehicle had produced insurance certificate indicating that vehicle was comprehensively insured by insurance company for unlimited liability Applying Swaran Singh, (2004) 3 SCC 297, to subserve ends of Justice, insurer directed to pay claim amount awarded by Tribunal to claimants in first instance, with liberty to recover the same from owner of vehicle in accordance with law".SCCH-9 21 MVC.No.1663/2021
Therefore, it cannot be said that, Insurance Company is exonerated from the liability but in view of the above referred full bench judgment of the Hon'ble Supreme Court, the Insurance Company is liable to pay awarded compensation to recover from the respondent No.1. Therefore, Respondent No.2 Insurance Company is liable to pay the compensation to the petitioners and recover the same from the respondent No.1 owner of the Motor cycle which involved in the accident is liable to pay the compensation amount of Rs.16,62,176/- with interest at 6% p.a. from the date of the petition till realisation. Hence, Issue No.2 answered Partly in the Affirmative.
16. Issue No.3: For the forgoing reasons and in view of above discussion, Tribunal proceed to pass the following:
SCCH-9 22 MVC.No.1663/2021
ORDER The petition filed by the petitioners U/s.166 of Motor Vehicle Act is partly allowed with cost.
The petitioner No.1 & 2 are entitled for compensation of Rs.16,62,176/-
(Rupees sixteen lakhs sixty two thousand one hundred and seventy six Only) with interest @ 6% p.a., from the date of petition till the date of realization.
The respondent No.1 & 2 are jointly and severally liable to pay the compensation to the petitioners. The respondent No.2 - Insurer shall pay the compensation amount with interest at the first instance and recover the same from the respondent No.1 - Owner. The respondent No.2 is directed to pay the compensation amount within two months from the date of this order.
The apportionment of the
compensation is as under:
SCCH-9 23 MVC.No.1663/2021
Petitioner No.1 - 60%
Petitioner No.2 - 40%
In total, amount apportioned to the share of petitioner No.1 and 2, 50% of the amount shall be released in their favour and remaining 50% of the amount shall be deposited in their name in Karnataka Bank, City Civil Court Branch, Bengaluru for a period of 3 years without encumbrance. They are entitled for interest that accrued on FD periodically.
The advocate fee is fixed at ₹.1,000/-. Draw award accordingly.
(Dictated to the stenographer directly on computer, corrected and pronounced by me in open court on this 23rd day of January, 2025.) (Nirmala.M.C) Court of Small Causes, Judge & ACJM, Bengaluru.SCCH-9 24 MVC.No.1663/2021
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONERS:
PW1 Smt.Selvi PW2 Sri. Arun Kumar
DOCUMENTS MARKED FOR PETITIONERS:
Ex.P1 FIR with complaint Ex.P2 Sketch Ex.P3 Mahazar Ex.P4 IMV Report Ex.P5 Inquest Report Ex.P6 Post Mortem Report Ex.P7 Charge Sheet Ex.P8 Notarized copy of Aadhaar cards Ex.P9 Identity card of deceased Ex.P10 Canara Bank pass book
Ex.P10 Authorisation letter (twice marked) Ex.P11 Salary details SCCH-9 25 MVC.No.1663/2021 LIST OF WITNESSES ON BEHALF OF RESPONDENTS :
RW.1 Smt. P. Parimala
RW.2 Sri.B.G. Prakash
LIST OF DOCUMENTS ON BEHALF OF
RESPONDENTS:
Ex.R.1 Authorisation letter
Ex.R.2 Insurance policy
Ex.R.3 Notice
Ex.R.4 Postal receipt
Ex.R.5 Postal acknowledgment
Ex.R.6 Reply to the notice
Ex.R.6(a) Postal cover
Ex.R.7 Copy of notice
Ex.R.8 Reply
Ex.R.9 FSL report
(Nirmala.M.C)
Court of Small Causes,
Judge & ACJM, Bengaluru.