Bangalore District Court
Shivakumar vs Yeshashwini C.J on 3 July, 2017
BEFORE THE MEMBER PRL.MOTOR ACCIDENT
CLAIMS TRIBUNAL AT BANGALORE
(S.C.C.H. - 1)
DATED THIS THE 3rd DAY OF JULY 2017
PRESENT : SRI H.P.SANDESH, B.A.L., LL.B,
MEMBER, PRL. M.A.C.T.
M.V.C. No. 5332/2016, 5333/2016, 5334/2016, and
6745/2016
Petitioners: 1. Shivakumar,
(in MVC 5332/16) S/o S.K.Siddappa,
Aged about 52 years.
2. Vijayakumari H.S.,
W/o Shivakumar,
Aged about 46 years.
3. Shreyas S.,
S/o Shivakumar,
Aged about 23 years.
All are residing at NO.57,
6th cross, 3rd Main Road,
Near Balaji Theater,
Balajinagar,
Dharmaram College,
Bangalore -560 029.
PETITIONERS : 1. Smt.Jayalakshmi,
(in MVC 5333/16) W/o Late Raju V.H.,
Aged about 21 years.
SCCH-1 2 MVC No.5332 to 5334&6745/2016
2. Chiranth V.R.,
S/o Late Raju V.R.,,
Aged about 6 years.
3. Harshith V.R.,
S/o Late Raju V.R.,,
Aged about 4 years.
4. Smt.Savithramma,
W/o Late Honnaiah,
Aged about 55 years.
All are r/o
Vasanthapura Village,
Haralahalli post,
Shilanere Hobli, K.R.Pet Taluk,
Mandya District.
Since Petitioner No.2 and 3
Are Minors,
Represented by Natural
Guardian Mother
Jayalakshmi.
PETITIONERS : 1. Sri. Shivaraju,
(in MVC 5334/16) S/o Late Honnaiah,
Aged about 45 years,
R/o Vasanthapura Village,
Haralahalli Post,
Shilanere Hobli,
K.R.Pet Taluk,
Mandya District.
SCCH-1 3 MVC No.5332 to 5334&6745/2016
PETITIONERS : Lokesh V.,
(in MVC 6745/16) S/o Venkataramappa,
Aged about 31 years,
R/at # 1/5, 1st Main Road,
Goraguntepalya,
Rajajinagar,
Bengaluru -560 022.
(By Sri R.K., Advocate)
- V/s -
Respondents: 1. Yeshashwini C.J.,
(in all cases) D/o. Jayashankar C.M.,
No.21/1, 1st Main Road,
Balajinagar,
Tavarekere Main Road,
Dharmaram College Post,'
Bangalore-560 029.
(R.C.Owner of Alto car
Bearing Reg.No.KA-05-ML-2139)
(By Sri G.S.S., Advocate )
Respondent No.2 2. The Manager,
(in all the cases) United India Insurance
Co.Ltd.,
Regional Office, 5th floor,
Krushi Bhavan,
Nrupathunga Road,
Hudson Circle,
SCCH-1 4 MVC No.5332 to 5334&6745/2016
Bangalore -560 027.
(Policy No.0704033115
P112573494
Valid from 25.01.2016 to
24.01.2017)
(By Sri J.N.R., Advocate)
*******
COMMON JUDGMENT
These petitions are arising out of the one and same
accident and therefore, they are disposed off by this
common judgment.
2. The petitioners have filed these petitions under
Section 166 of the of the Motor Vehicles Act, 1989
seeking compensation for the death of their family
members and for the injuries sustained by them in the
road traffic accident.
3. Brief facts of the case are that:-
SCCH-1 5 MVC No.5332 to 5334&6745/2016
It is the case of the petitioners in M.V.C.
No.5332/2016 that on 07.08.2016 at about 6.30 p.m.
when the deceased Yashas S. was travelling in a Alto car
bearing No. KA-05-ML-2139 and the deceased Raju was
riding the motor cycle bearing No. KA-54-E-1868 along
with a pillion rider Shivaraju and the petitioner in
M.V.C.No.6745/16 Lokesh was travelling in the Maruthi
Omni car bearing No.KA-04-AA-5130 along with other
inmates and when all the above said vehicles reached
near Kallugopahalli Petrol bunk, Bidadi Hobli,
Ramanagara taluk, on Mysore-Bangalore road, at that
time the driver of the Alto car drove the same in a rash
and negligent manner without observing any of the traffic
rules and regulations and due to his negligent driving
lost control and ran over on the divider, went on either
side of the said road and dashed against the two wheeler
and then to Maruthi Omni car. Due to the impact, the
occupant of the Alto car Yashas and the rider of the
SCCH-1 6 MVC No.5332 to 5334&6745/2016
motor cycle Raju also succumbed to the injuries on the
spot itself and the pillion rider of the motor cycle and
occupant of the Omni car sustained grievous injuries.
4. It is the case of the petitioners in
M.V.C.No.5332/2016, immediately after the accident, the
dead body was shifted to Rajarajeswari Medical College
and Hospital, wherein postmortem was conducted and
handed over the dead body to the petitioners and in turn
petitioners have conducted the funeral and obsequies
ceremonies by spending Rs.1,00,000/-. The deceased is
aged about 26 years and was working as TECG SS at
Controllerate of Quality Assurance (Electronics) Ministry
of Defence, Government of India, Bengaluru and he was
drawing salary of Rs.22,345/p.m. and he used to
contribute the same towards the maintenance of the
family. Due to untimely death of the deceased the
petitioners life has become miserable and depressed and
they are suffering financial hardship .
SCCH-1 7 MVC No.5332 to 5334&6745/2016
5. It is the case of the petitioners in
M.V.C.No.5333/2016, that the deceased is aged about 30
years and was working as driver in Private Company and
earning a sum of Rs.20,000/p.m. and he used to
contribute his entire income towards the maintenance of
the family. Due to untimely death of the deceased the
petitioners life has become miserable and they have lost
the their earning member.
6. It is the case of the petitioner in
M.V.C.No.5334/2016 that immediately after the accident,
the petitioner was shifted to Subash Medical Centre,
B.M.Road, Bidadi and he was treated as inpatient and it
was diagnosed that the petitioner had sustained injuries
to his head, chest and other parts of the body. Due to the
head injury petitioner was getting giddiness often and
often and he is not able to do his regular work as he was
doing earlier.Prior to the accident petitioner was hale and
healthy and he was getting pain in his chest often and
SCCH-1 8 MVC No.5332 to 5334&6745/2016
often. Petitioner has spent Rs.25,000/- towards
treatment.
7. It is the case of the petitioner in
M.V.C.No.6745/2016 that immediately after the accident
he was shifted to Rajarajeswari Medical College and
Hospital, wherein he took treatment as inpatient. X-rays
were taken and found petitioner has sustained fracture of
left condylar tibia (Schatzker type IV) and other injuries.
The petitioner underwent operation with internal fixation
to the left leg and discharged on 24.10.2016 with an
advice to take complete bed rest and regular follow up
treatment. It is also contended that the petitioner has
suffered permanent disability due accidental injuries.
Prior to the accident petitioner was working as driver and
also doing chicken business and earning Rs.25,000/p.m.
and now he has lost his income due to permanent
disability.
SCCH-1 9 MVC No.5332 to 5334&6745/2016
8. It is the case of the petitioners in all the cases
that the accident was occurred due to the rash and
negligent driver of the driver of the Alto car bearing No.
KA-05-ML-2139 and respondent No.1 being the owner
and respondent NO.2 being the insurer are jointly and
severally liable to pay compensation to the petitioners.
9. In pursuance of these claim petitions, this
Court has issued notices against the respondents.
Respondents No.1 and 2 have appeared before the Court
through their respective counsels and have filed written
statement separately.
10. The first respondent has filed written statement
denying the petition averments. This respondent has
denied the date, time and mode of accident, age ,
avocation and income of the petitioners/deceased ,
injuries sustained by the petitioners/deceased and the
injured have succumbed to the injuries, expenses
incurred by the petitioners, relationship of the deceased
SCCH-1 10 MVC No.5332 to 5334&6745/2016
with the petitioners and the injuries sustained by the
petitioners. It is contended that this respondent learnt
that the driver of the Maruthi Omni car bearing no. KA-
04-AA-5130 drove the same in a rash and negligent
manner and dashed against the median near Kallugopalli
petrol bunk, Bidadi, at that time a bullock standing near
median being scarred, all of a sudden rushed across the
way of the Alto car, consequently the driver of the said
car dashed against the bullock and lost control fell into
the other side of the road. Thereafter the sadi Maruthi
Omni dashed against the Alto car causing severe
damages to the said Alto car. Due to the terrific impact
two persons died on the spot and inmates of the said Alto
car sustained severe injuries. The aforesaid accident
occurred due to the sole rash and negligence of driver of
the said Maruthi Omni and there is no negligence on the
part of the driver of the said Alto car. However, the Bidadi
Police in collusion with the owner of the Maruthi Omni
SCCH-1 11 MVC No.5332 to 5334&6745/2016
foisted a false case against the driver of the said Alto car.
Hence, prays to dismiss the petition.
11. The second respondent has filed written
statement denying the petition averments. It is contended
that petition is bad for non-joinder of necessary parties
as the owner/insurer of the motor cycle bearing No.KA-
54-OE-1868 and Maruthi Omni Van bearing No. KA-04-
AA-5130 involved in the alleged accident are not made as
parties to the above proceedings. Hence, petitioner may
be directed to implead as necessary parties to the above
proceedings. This respondent admits the issuance of
policy and the liability is subject to the terms and
conditions of the policy. It is further contended that the
first respondent owner has not complied the statutory
obligation under section 134(c) of M.V.Act and the
concerned police have not complied the provisions of
section 158(6) of M.V.Act. It is further contended that the
second respondent reserves his right to amend its
SCCH-1 12 MVC No.5332 to 5334&6745/2016
statement of objection and also to take over the defence
of the insured in the event of the owner does not contest
the proceedings under section 170 of M.V.Act.
12. It is the contention of the second respondent
that the accident was solely occurred due to the
negligence of the deceased only and the alleged accident
was caused due to the rash and negligent manner of
motor cycle and Maruthi Omni van only but these facts
are suppressed by the petitioners, insured, police,
insured of the motor cycle and Maruthi van and their
drivers, all have colluded together and fixed a false case
against this respondent to get the compensation. Hence,
claim petition may be dismissed against this respondent.
13. This respondent has denied the date, time and
mode of accident, age , avocation and income of the
petitioners/ deceased , injuries sustained by the
petitioners/deceased and the injured have succumbed to
the injuries, expenses incurred by the petitioners,
SCCH-1 13 MVC No.5332 to 5334&6745/2016
relationship of the deceased with the petitioners and the
injuries sustained by the petitioners.The compensation
claimed by the petitioner is excessive and exorbitant.
hence, prays to dismiss the petition.
14. Based on the pleadings this Court has framed
the following common issues in both the cases:-
ISSUES in M.V.C. No.5332 and 5333 /2016
1 Whether the Petitioners prove that the
deceased succumbed to injuries in a Motor
Vehicle Accident that occurred on 07-08-2016
at about 06.30 p.m, Near Kallu Gopahalli
petrol Bunk, Bidadi Hobli, Ramanagara
District, within the jurisdiction of Bidadi Police
Station on account of rash and negligent
driving of the Alto Car bearing registration
No.KA-05-ML-2139 by its driver?
2. Whether the Respondent No.2 proves that the
accident was occurred on account of negligent
act of deceased?
3. Whether the Petitioners are entitled for
compensation? If so, how much and from
whom?
SCCH-1 14 MVC No.5332 to 5334&6745/2016
4. What order?
ISSUES in M.V.C. No. 5334/2016
1. Whether the Petitioner proves that he
sustained grievous injuries in a Motor Vehicle
Accident that occurred on 07-08-2016 at
about 06.30 p.m, near Kallu Gopahalli petrol
Bunk, Bidadi Hobli, Ramanagara District,
within the jurisdiction of Bidadi Police Station
on account of rash and negligent driving of the
Alto Car bearing registration No.KA-05-ML-
2139 by its drivers?
2. Whether the Respondent No.2 proves that the
accident was occurred on account of negligent
act of rider of the motor cycle?
3. Whether the Petitioner is entitled for
compensation? If so, how much and from
whom?
4. What order?
ISSUES in M.V.C. No. 6745/2016
1. Whether the Petitioner proves that he
sustained grievous injuries in a Motor Vehicle
Accident that occurred on 07-08-2016 at
SCCH-1 15 MVC No.5332 to 5334&6745/2016
about 06.30 p.m, near Kallu Gopahalli petrol
Bunk, Bidadi Hobli, Ramanagara District,
within the jurisdiction of Bidadi Police Station
on account of rash and negligent driving of the
Alto Car bearing registration No.KA-05-ML-
2139 by its drivers?
2. Whether the Respondents No.1 and 2 proves
that the accident was occurred on account of
negligent act of driver of Maruthi Van?
3. Whether the Petitioner is entitled for
compensation? If so, how much and from
whom?
4. What order?
15. In order to prove their cases, first petitioner in
M.V.C. No.5332/16 is examined as PW1, The first
petitioner in M.V.C.No.5333/16 is examined as PW-2, the
petitioner in M.V.C.No.5334/16 is examined as PW-3, the
petitioner in M.V.C.No.5335/16 is examined as PW-4,
three witnesses have been examined as PW-5 to 7 and
they have got marked the documents at Ex.P.1 to P.43
SCCH-1 16 MVC No.5332 to 5334&6745/2016
and respondents have examined one witness as RW-1
but they have not got marked any documentary evidence.
16. Perused the written arguments of the petitioner
and heard the arguments of respondents counsel.
17. Having heard and perused the arguments,
based on the pleadings and the evidence available on
record, I record my findings on the above issues as
under:-
1) Issue No.1( in all the cases )... In the Affirmative
2) Issue No.2( in all the cases )... In the negative
3) Issue No.3 (in all the cases) ... Partly in the Affirmative,
4) Issue No.4( in all the cases )... As per final order
for the following:-
REASONS
18. Issue No.1 and 2 ( in all the cases): These two
issues in all the cases have been taken up together for
discussions, in order to avoid repetitions.
SCCH-1 17 MVC No.5332 to 5334&6745/2016
It is the case of the petitioners in all the cases that
the accident was occurred due to the negligence on the
part of the Alto car and respondent No.2 has taken the
defence that the accident is occurred on account of the
negligence act of the driver of the Omni Van and also the
negligence is on the part of the rider of the motor cycle.
19. The petitioners in order to prove the negligence
have examined the PW-1 who is the petitioner in M.V.C.
NO.5332/2016 but he is not an eye witness to the
accident. However, PW-1 has got marked the documents
F.I.R., mahazar, IMV report, sketch and charge sheet at
Ex.P.1,2, 5 to 7. It is elicited in the cross-examination of
PW-1 that in terms of the IMV report the front portions of
all the three vehicles were damaged. The petitioners have
examined the first petitioner in M.V.C. No.5333/2016 as
PW-2 and she is also not the eye witness to the accident,
however, she says her husband was riding motor cycle
along with her Brother-in-law. As PW-1 and 2 are not the
SCCH-1 18 MVC No.5332 to 5334&6745/2016
eye witness to the accident, this Court cannot give much
importance to their evidence with regard to negligence is
concerned. But PW-3 and 4 who are the injured persons
and they are the witnesses to the accident and their
evidence is material. PW-3 is none other than the pillion
rider of the motor cycle. In his cross-examination, it is
elicited that the width of the road is 80 ft and there is a
road divider. It is admitted that there is a petrol bunk
near the place of accident and the accident was occurred
near the petrol bunk. The fact of petrol bunk is situated
near the accident spot is not disputed by any of the
witnesses. He further admits that if the alto car crosses
the road divider and enters the other road there is
chances of causing the damages in the right portion. He
further admits that as per Ex.P.5 the front portions of all
the vehicles were damaged. In the cross-examination of
PW-4, who is the occupant of Maruthi Omni car he also
attributed the negligence is on the part of the driver of
SCCH-1 19 MVC No.5332 to 5334&6745/2016
the Alto car. Further he admits that the accident was
taken place suddenly. It is suggested that at the time of
accident the people were carrying the deity in the said
road bearing the drums and the said suggestion was
denied. It is suggested that the driver of their car has
suddenly rush to the road before the arrival of the said
procession and the same was denied. It is further
suggested that at that time, the cow hearing the drum
sound suddenly entered the road and the said suggestion
was denied. Further suggested that the driver in order to
avoid the said cow entered the other side of the road
crossing the road divider and the said suggestion also
denied. It is further suggested that at that juncture omni
car came and hit the alto car and the same was denied.
20. The counsel appearing for the respondent No.2
in the cross-examination elicited that if the car crossed
the road divider and enters the other road there is a
SCCH-1 20 MVC No.5332 to 5334&6745/2016
chances of damaging on the right side of the said car. It
is admitted that as per the IMV report, the front portions
of all the vehicles were damaged.
21.On the other hand, the first respondent has
examined the driver of the Alto car as RW-1 and in his
evidence he says that he was proceeding from Bangalore
to Ramanagara in the Bangalore-Mysore road on the date
of the accident and there were 5 persons in the car. He
says he was driving the car at the speed of 50 kms per
hour and he was proceeding near Kallugopanahalli Petrol
bunk, at that time, he heard the sound and a cow was
there near the road divider and suddenly the cow hearing
the said sound came infront of his way and at that time
he has suddenly applied the brake, as a result his car got
turtle and fallen on the other side of the road which was
leading from Mysore to Bangalore and at that time the
Maruthi Omni van came in that road dashed against his
car. He further says the accident was occurred suddenly
SCCH-1 21 MVC No.5332 to 5334&6745/2016
in view of the cow which came on his way and the driver
of the Maruthi Omni car was driving the car in a high
speed. He was subjected to cross-examination. In the
cross-examination, it is elicited that he has not lodged
any complaint stating that the accident is not on account
of my negligence. It is suggested that he was proceeding
in his car at the speed of 100 kms per hour and the same
was denied. It is suggested that the cow not came in his
way after hearing the sound and himself driven the car in
rash and negligent manner and lost the control and
jumped the road divider and entered other road and
dashed against the motor cycle and the Omni van and
the said suggestion was denied. It is further suggested
that, no sound was occurred and he is falsely deposing
before the Court that he has heard the sound and the
same was denied. He further admits that the police have
filed the chargesheet against him but he has not
challenged the same in the Court . It is also suggested to
SCCH-1 22 MVC No.5332 to 5334&6745/2016
him that even though the accident was occurred due to
his negligence, he is falsely deposing before the Court
and the said suggestion was denied.
22. Though the second respondent took the defence
that negligence is on the part of the rider of the motor
cycle as well as negligence is on the part of the driver of
the Omni car have not examined any of the witnesses
and relies upon the evidence of RW-1, who is the driver of
the Alto car. The evidence of PW-3, 4 and RW-1 is
material for the consideration, admittedly, the PW-3 is
the pillion rider of the motor cycle. PW-4 is the occupants
of the Omni car and these two witnesses have attributed
negligence against the driver of the Alto car. On the other
hand, RW-1 driver of the Alto car has deposed a cow
suddenly came across his way and he has suddenly
applied brake , hence, his vehicle entered the other side
of the road, at that time Maruthi Omni car came and
dashed against him. It is important to note that the
SCCH-1 23 MVC No.5332 to 5334&6745/2016
respondent No.1 in the objection statement he contended
that the Maruthi Omni car drove the same in rash and
negligent manner and dashed against the median, at
that time a bullock standing near the median being
scared rushed across the way of Alto car, consequently
the driver of the Alto car dashed against the Bullock and
lost control fell into the other side of the road. It has to be
noted that the evidence given by the RW-1, driver of the
Alto car is different from the defence of respondent No.1
taken in the written statement. The respondent No.1 has
contended that the driver of the Omni car first hit the
road divider and at that time, bullock which was
standing hearing the sound suddenly came infront of his
vehicle, hence, he has suddenly applied the brake and
vehicle got turtle. In the evidence driver of the Alto car,
who is examined as RW-1 has given a different story. He
says he heard the sound and a cow was there near the
road divider and suddenly came infront of his way, at
SCCH-1 24 MVC No.5332 to 5334&6745/2016
that time he suddenly applied brake, as a result his car
got turtle and he fell on the other side of the road, at that
time maruthi Omni car came in that road and dashed
against his car and this accident was occurred suddenly
in view of cow which came in his way. The defence of the
respondent No.1 shows that the driver of the Alto car
dashed against the cow but the driver says when the cow
came across infront of his vehicle he suddenly applied
brake, as a result, his car got turtle and entered the
other side of the road, thereafter the maruthi Omni car
dashed against his car and the respondent No.1 says the
Omni car hit the road divider and after hearing the same
cow suddenly came across the way of the driver of the
Alto car are contrary to each other. In the cross-
examination, PW-4, again a story was created that a deity
procession was going on the road beating drums, at that
time a cow hearing the drum sound suddenly entered the
road and in order to avoid the said cow entering the other
SCCH-1 25 MVC No.5332 to 5334&6745/2016
side of the road, the Omni car came and hit the Alto car
and there is no co-relation to each other in the defence
and evidence produced and the fact of the Alto car
entered other side of the road after hitting the road
divider is not disputed and only the contention of the cow
entering the road was forthcoming while cross-examining
the PW-4 and not suggested anything to PW-3 about cow
entering the road infront of Alto car and no doubt, the
respondent No.1 has taken the defence in his written
statement and said written statement defence is contrary
to the evidence of RW-1. In the evidence an attempt is
made to shift the negligence on the driver of the Maruthi
car and rider of the motor cycle and the fact that three
vehicles are involved in the accident is not disputed and
the fact of other Alto car entering the other side of the
road is not disputed. No doubt in the cross-examination,
it is elicited that front portion of all the three vehicles
were damaged. When the offending vehicles enter the
SCCH-1 26 MVC No.5332 to 5334&6745/2016
other side of the road, naturally the motor cycle and
Maruthi Omni car who were proceeding on the said road,
when the vehicle gets turtle and enter the other side of
the road, hit the other side of the vehicles and front
portion of the vehicle will be damaged and the offending
vehicle also had hit the road divider and sustained
damages to the front portion and eliciting the said
answer will not take away the case of the petitioner. In
the complaint which is marked at Ex.P.1 does not
disclose anything about the cow/bullock came across the
vehicle and complainant is also none other than the
occupant of the car and he has lodged the complaint
immediately after the accident and if the theory of
cow/bullock entering the road appears to be an after
thought. There is no mention of cow in the complaint is
made and the complaint was given on the same day. I do
not find any material to believe the version of the
respondent No.1 and 2 and the police have investigated
SCCH-1 27 MVC No.5332 to 5334&6745/2016
the matter and filed charge sheet against the driver of the
Alto car who drove the car in rash and negligent manner
and these things speaks itself that the principles of "res
ipsa loquitur" is applicable to the case on hand.
23. The complainant also in the complaint specially
mentioned that the driver of the offending vehicle first hit
the two wheeler and thereafter hit their car. IMV report
which is marked at Ex.P.5 substantiate the damages
caused to all the three vehicles and sketch which is
marked at Ex.P.6 also clearly discloses that the accident
was occurred in the middle of the road which was
proceeding towards Bangalore and the offending vehicle
was proceeding towards Mysore and the same was
jumped to the other side of the road after hitting the
road divider and went and dashed against the motor
cycle and then to Omni car and caused the accident.
The Ex.P.6 sketch is not disputed. For having considered
SCCH-1 28 MVC No.5332 to 5334&6745/2016
the material on record, I do not find any substance in the
contention of the respondent No.1 and 2.
24. The counsel appearing for the respondent NO.2
has relied upon judgment reported in ILR 1999 Kar.403
( Ganesh Vs. Syed Munned Ahamed and others)
regarding liability in case of composite negligence of
drivers of the offending vehicles and this judgment is not
applicable to the facts of the case on hand. On perusal of
the documents available on record, I do not find any
material to come to the conclusion of composite
negligence on the part of the vehicles involved in the
accident for the reason that the offending vehicle driver
entered the other side of the road after jumping the road
divider and question of composite negligence does not
arise. Hence, I answer issue NO.1 in all the cases in the
affirmative and issue No.2 in all the cases in the negative.
SCCH-1 29 MVC No.5332 to 5334&6745/2016
25. Issue No.3 ( in M.V.C. No.5332/2016) : It is the
case of the petitioners that they are the parents of the
deceased and petitioner No.3 is the younger brother of
the deceased. The petitioners have produced Ex.P.9
notarised copy of Aadhar card of petitioner No.2 which
discloses the name of Shivakumar as husband of the
petitioner No.2. Ex.P.10 is the notarized copy of the
Aadhar card of younger brother of the deceased. Ex.P.13
is the Aadhar card of the deceased in which father's
name is mentioned as Shivakumar. Hence, the
relationship of the deceased with the petitioners is
proved.
26. It is the case of the petitioner deceased was aged
about 26 years and TECH SS at Controllerate of Quality
Assurance (Electronics), Ministry of Defence, Government
of India and drawing a salary of Rs.22,345/p.m. In order
to prove the same petitioners have produced
computerized copy of pay slip at Ex.P.11, Ex.P.33 bank
SCCH-1 30 MVC No.5332 to 5334&6745/2016
statement of the deceased. Ex.P.11 is for the month of
July 2016 and it discloses deceased was drawing gross
salary of Rs.22,345/-. An amount of Rs.4,772/- each is
deducted towards NSPG and NPSE and net total is
Rs.12,646/-. The salary slip is for the month of July
2016 and the accident occurred in the month of August
2016. In the cross-examination, PW-1 admits that his
son has got the amount of Rs.12,506/- as per the bank
statement at Ex.P.34. PW-1 admits that he has not
received any amount from the department under the
head of group insurance and his son has joined the
service one year two months ago.
27. In order to substantiate the salary of the
deceased petitioners have examined the Admin Officer at
CQAL, Ministry of Defence, J.C.Nagar, Bengaluru as PW-
5. In his evidence he states that as per their records an
employee by name Mr.Yashas S. joined CQAL, Ministry of
Defence Government of India as a "Technician SS" on
SCCH-1 31 MVC No.5332 to 5334&6745/2016
30.07.2015. At the time of his death he was drawing
monthly salary of Rs.22,345/- and other perks. If he was
alive and continued his job, he would have been
promoted as a "Master Crafts Man" and would have
drawn the salary of Rs.81,200/- along with other perks.
He has produced appointment letter of deceased , daily
orders, attendance register with salary details. He was
subjected to cross-examination. In the cross-
examination, PW-5 admits that he is working in the
department as Administrative Officer from July 2016. He
admits that the deceased was a probationary employee in
their department for a period of 2 years and he will
become permanent employee only after the completion of
probationary period. He says they have paid the death
gratuity of Rs.1,13,220/- to his family and leave
encashment of Rs.25,284/- and group insurance benefit
of Rs.30,225/-. He further deposed that the deceased
would have got an amount of rs.81,200/- if he continued
SCCH-1 32 MVC No.5332 to 5334&6745/2016
in the service based on his pay scale. He admits in their
department , the performance is the criteria for giving
promotion. The payment of salary is through NEFT. It is
admitted that as per the daily orders, a probationer can
be removed without any notice and the averments made
in para 2 of his affidavit is on presumption and not on
any documents. It is suggested that in order to help the
family of the deceased, he is giving false evidence before
the Court and the said suggestion was denied.
28. Now, let me appreciate the oral and
documentary evidence available on record. The
petitioners have relied upon the identity card of the
employment of the deceased as well as pay slip of the
deceased and the same has not been disputed by the
respondents. Administrative Officer of the particular
department has been examined as PW-5 and in his
evidence he has deposed that if the deceased would have
continued in his service and got the promotion, he might
SCCH-1 33 MVC No.5332 to 5334&6745/2016
have earned Rs.81,200/p.m. based on his pay scale. In
the cross-examination he categorically admits that he
has given the statements based on the presumptions,
hence, this Court cannot take the said fact into
consideration, this Court can take the salary of the
deceased at Rs.22,345/-p.m. as the Administrative
Officer has been examined and proved that deceased was
drawing salary of Rs.22,345/-p.m.
29. It is important to note that in the recent
judgment reported in 2012 ACJ 2002 (SC)( Amrit Bhanu
Shali and others Vs. National Insurance company Ltd.
And others) Hon'ble Supreme Court held that:
Quantum - fatal accident -principles
of assessment-multiplier-choice of -
deceased aged 26 and claimants are
father , mother and sister who got
married during pendency of claim
application -Tribunal adopted
multiplier of 17-High Court reduced
multiplier to 13 -whether multiplier
of 17 based on the age of the
deceased be applied -Held:yes, the
SCCH-1 34 MVC No.5332 to 5334&6745/2016
age of dependants has no nexus with
the computation of compensation .
Also in the recent judgment reported in 2015 AIR
SCW 3105 (Munna Lal Jain and another Vs.Vipin Kumar
Sharma and others)
"Compensation - Computation of -
Deduction towards personal and living
expenses - No exceptional circumstances or
compelling reasons for deviation on basis of
evidence - Deceased being of the age of 30
years - Deduction of 50% towards personal
and living expenses is proper."
"Compensation of - Multiplier - Depend
on age of deceased alone - Age of deceased
was between 26 to 30 years at the time of
accident - Proper multiplier is 17"
As per the above referred judgments in this case
also, I have taken the age of the deceased, to arrive the
proper multiplier.
SCCH-1 35 MVC No.5332 to 5334&6745/2016
30. It is contended that as on the date of the
accident the deceased was aged about 26 years. The
petitioners have produced notarized copy of Aadhar card
and identity card of Defence which discloses the date of
birth of the deceased as 23.10.1990, i.e., 26 years as on
the date of accident. As per the table for the age group of
26 to 30 years the multiplier applicable is 17 years and
the appropriate multiplier is 17.
31. In the judgment reported in 2013 ACJ 1403
(Rajesh and others Vs. Rajbir Singh), the Apex Court held
that, even if a person is self employed, loss of future
prospects has to be taken into consideration to the extent
of 50% of actual income (after deduction of tax) for
persons below 40 years; 30% for age group of 40 to 50
years; 15% for age group of 50 to 60 years; but no
addition thereafter.
SCCH-1 36 MVC No.5332 to 5334&6745/2016
32. As per the principles laid down in the above
judgment reported in the petitioner is entitled for
addition of 50% towards loss of future prospects and it
works out to Rs.11,173/- and thus the total works out to
Rs.33,518/- p.m.
33. The deceased was bachelor at the time of
accident, hence, 50% of his income has to be deducted
towards his personal expenses. It works out to be
Rs.16,759/-p.m. (33,518-16,759) . Then the annual
income of the deceased is Rs.2,01,108/- (16,759x12). The
proper multiplier applicable is 17 and if we multiply the
annual income of the deceased by the multiplier, the
same works out to Rs.34,18,836/- (2,01,108x17), to
which the petitioner is entitled to under the head loss of
dependency on account of death of their son in the
accident. The same is rounded off to Rs.34,19,000/-.
SCCH-1 37 MVC No.5332 to 5334&6745/2016
Hence, I award a sum of Rs.34,19,000/- towards loss of
dependency.
34. The Apex Court, in the case reported in 2013
ACJ 5800 (Sanobanu Nazirbhai Mirza Vs. Ahmedbad
Municipal Transport Service) and also in the recent
judgment reported in AIR 2014 SUPREME COURT 706
(Puttamma Vs. Narayana Reddy) awarded Rs.1,00,000/-
as compensation to the family members (children and
family members other than wife) for loss of love and
affection, deprivation of protection, social security etc.,
and Rs.50,000/- as compensation to the widow of the
deceased for loss of love and affection, pain and
sufferings, loss of consortium, deprivation of protection,
social security etc., and Rs.10,000/- towards cost
incurred on account of funeral and ritual expenses.
35. In this case also, since the deceased has left
behind his parents and younger brother, I deem it proper
SCCH-1 38 MVC No.5332 to 5334&6745/2016
to award Rs.1,00,000/- as compensation for loss of love
and affection, deprivation of protection, social security
etc., and Rs.10,000/- towards cost incurred on account
of funeral and ritual expenses.
36.The details of compensation I propose to award are
as under:
Sl.No Head of Compensation Amount/Rs
.
1 Loss of dependency 34,19,000-00
2 Compensation to the family 1,00,000-00
members (children and
family members other than
wife) for loss of love and
affection, deprivation of
protection, social security
etc.
3 Cost incurred on account of 10,000-00
funeral and ritual expenses
Total 35,29,000-00
Hence, the petitioners No.1 and 2 in
M.V.C.No.5332/2016 is entitled for the total
SCCH-1 39 MVC No.5332 to 5334&6745/2016
compensation of Rs.35,29,000/- towards compensation.
Out of the that Rs.1,00,000/- compensation amount
awarded under the head of loss of love and affection with
proportionate interest is awarded to the share of
petitioner No.3, Shreyas, the younger brother of the
deceased, since the parents are entitled for the
compensation awarded under the head of loss of
dependency. The petitioner No.3 is a major and not
considered as dependant of the deceased.
37.ISSUE NO.3( M.V.C. No.5333/2016) : It is the
case of the petitioners that petitioner No.1 is the wife of
the deceased , petitioners No.2 and 3 are the children of
the deceased and petitioner No.4 is the mother of the
deceased. In order to prove the same petitioners have
produced notarized copy of Aadhar card of petitioner
No.1 which discloses the name of the husband as Raju
V.R., Ex.P.17 and 18 are the Aaadhar card of petitioner
SCCH-1 40 MVC No.5332 to 5334&6745/2016
No.2 and 3 children of the deceased which discloses the
father's name as Raju. In the driving of the deceased
licence which is marked at Ex.P.19 his father's name is
mentioned as Honnaiah and petitioners have produced
Ex.P.20 notarised copy of election identity card of
petitioner No.4, mother of the deceased, which discloses
the name of the husband of the petitioner No.4 as
Honnaiah. All these documents proves the relationship of
the deceased with the petitioners.
38. It is the case of the petitioners that the deceased
aged about 30 year at the time of accident and prior to
the date of accident he was hale and healthy and was
working as driver in a Private Company, and was earning
a sum of Rs.20,000/p.m. It is the contention of the
petitioners that they all were depending on the income of
the deceased and they have lost their care taker. The
petitioners have produced notarized copy of driving
SCCH-1 41 MVC No.5332 to 5334&6745/2016
licence at Ex.P.19 which discloses the petitioner was
authorized to drive MCWG, LMV, Tractor and the same
was issued on 20.06.2009 valid till 19.06.2029. In order
to prove that the petitioner was drawing salary of
Rs.20,000/p.m. petitioners have produced Ex.P.21
issued by one Sri.H.C.Thimmaiah, stating that deceased
V.H.Raju was working with him as driver and he used to
pay him Rs.15,000/p.m. The author of this document
Ex.P.21 has not been examined before the Court. Hence,
this Court cannot rely on Ex.P.21.
39. This Tribunal would like to refer the judgment
reported in 2016(1) AKR 39 (Peter Vs. Haifa and
another) wherein it is held that :
Compensation -Accident due to rash
and negligent driving of driver of offending
vehicle-claimant, a mason earning Rs.300/-
per day aged about 40 years at time of
accident -Notional income of claimant
SCCH-1 42 MVC No.5332 to 5334&6745/2016
assessed at Rs.9,000/per month-Multiplier of
15 applied.
As per the above referred judgment the driver job is
also a skilled job, hence, this Tribunal would like to take
the income of the deceased at Rs.9,000/p.m.
40. It is the case of the petitioners that the deceased
was aged about 30 years as on the date of accident. The
notarized copy of driving licence discloses the date of
birth of the deceased as 01.12.1986 and the multiplier
applicable for the age group between 26-30 years is 17.
41. In the judgment reported in 2013 ACJ 1403
(Rajesh and others Vs. Rajbir Singh), the Apex Court held
that, even if a person is self employed, loss of future
prospects has to be taken into consideration to the extent
of 50% of actual income (after deduction of tax) for
persons below 40 years; 30% for age group of 40 to 50
SCCH-1 43 MVC No.5332 to 5334&6745/2016
years; 15% for age group of 50 to 60 years; but no
addition thereafter.
42. As per the above referred judgment the loss of
future prospects of the deceased has to be taken into
consideration and hence, as the deceased was aged 30
years at the time of accident, 50% of the income has to
be added to the monthly income of the deceased i.e.,
Rs.9,000/- and 50% of it comes to Rs.4,500/- towards
loss of future prospects. It comes to Rs.13,500/-.
(9,000+4,500/-). There are four dependants . Hence,
1/4th of the income of the deceased is to be deducted for
personal expenses i.e., Rs.3,375/-. After deduction of
the income towards personal expenses, it comes to
Rs.10,125/-(13,500-3,375/-). Thus, the annual loss of
dependency works out to Rs.1,21,500/-. The relevant
multiplier applicable to the case on hand would be 17.
If we multiply the annual income of the deceased with the
SCCH-1 44 MVC No.5332 to 5334&6745/2016
17 multiplier, it works out to Rs.20,65,500/-, to which
the petitioners are entitled to under the head loss of
dependency.
43. The Apex Court, in the case reported in 2013
ACJ 5800 (Sanobanu Nazirbhai Mirza Vs. Ahmedbad
Municipal Transport Service) and also in the recent
judgment reported in AIR 2014 SUPREME COURT 706
(Puttamma Vs. Narayana Reddy) awarded Rs.1,00,000/-
as compensation to the family members (children and
family members other than wife) for loss of love and
affection, deprivation of protection, social security etc.,
and Rs.50,000/- as compensation to the widower of the
deceased for loss of love and affection, pain and
sufferings, loss of consortium, deprivation of protection,
social security etc., and Rs.10,000/- towards cost
incurred on account of funeral and ritual expenses.
SCCH-1 45 MVC No.5332 to 5334&6745/2016
44. In this case also, since the deceased has left
behind wife , minor children and mother, I deem it proper
to award Rs.1,00,000/- as compensation to the family
members (children and family members other than wife)
for loss of love and affection, deprivation of protection,
social security etc., and Rs.50,000/- as compensation to
the widow of the deceased for loss of love and affection,
pain and sufferings, loss of consortium, deprivation of
protection, social security etc., and the petitioners have
produced Ex.P.24 ambulance bill for an amount of
Rs.13,000/- towards transportation of dead body from
and Rajarajeshwari Medical College and hospital to
Vasanthapura, Mandya. Considering the ambulance bill,
expenses towards funeral and obsequies, I award
Rs.20,000/- towards cost incurred on account of
transportation of dead body, funeral and ritual expenses.
SCCH-1 46 MVC No.5332 to 5334&6745/2016
45.The details of compensation, I propose to award
are as under:
Sl.No Head of Compensation Amount/Rs
.
1 Loss of dependency 20,65,500-00
2 Compensation to the family 1,00,000-00
members (children and
family members other than
wife) for loss of love and
affection, deprivation of
protection, social security
etc.
3 Compensation to the widow 50,000-00
of the deceased for loss of
love and affection, pains
and sufferings, loss of
consortium, deprivation of
protection , social security
etc.
4 Cost incurred on account of 20,000-00
funeral and ritual expenses
Total 22,35,500-00
The petitioners in M.V.C.No.5333/2016 are entitled
for the compensation of Rs.22,25,500/-.
46. Issue No.3( in M.V.C. No.5334/2016) :- It is
the case of the petitioner that on account of the accident
SCCH-1 47 MVC No.5332 to 5334&6745/2016
he has sustained grievous injuries. The petitioner in
order to prove his case has produced wound certificate at
Ex.P.22, which discloses petitioner has sustained blunt
trauma left parietal region, blunt trauma chest. Doctor
has opined that injuries No.1 and 2 are simple in nature.
Petitioner has produced Ex.P.23 deceased which
discloses that the petitioner took treatment as inpatient
on 07.08.2016 and discharged on the same day. In the
discharge summary, diagnosis is mentioned as
Haematoma over left parietal region, blunt trauma over
right and left chest. Petitioner has produced medical bills
to the tune of Rs.3,611/-. In the cross-examination
petitioner says he was having conscious after the
accident and he was shifted to Subhas hospital and
Police have recorded his statement. He was an inpatient
for about 2 to 3 days and thereafter shifted to
Rajajaeshwari hospital. He was also sent to Jayadeval
hospital and there after he took treatment in his native
SCCH-1 48 MVC No.5332 to 5334&6745/2016
place. He says he can produced the documents of
Jayadeva hospital. On perusal of the records petitioner
has produced wound certificate and discharge summary
of Subhas hospital. It is the case of the petitioners that
he was doing agriculture and earning Rs.20,000/p.m and
in order to prove the same he has produced R.T.C. and
same is standing in the name of Savithramma, w/o
Bagaraiah.
47. Now, let me appreciate the oral and
documentary evidence available on record. The petitioner
has produced wound certificate which is marked at
Ex.P.22 and the same discloses that petitioner has
sustained blunt trauma left parietal region, blunt trauma
chest. Petitioner has produced medical bills to the tune of
Rs.3,611/- and the same is not supported by any
prescriptions. The petitioner also produced discharge
summary at Ex.P.5 which discloses he was discharged on
the same day. At the time of the accident petitioner is
SCCH-1 49 MVC No.5332 to 5334&6745/2016
aged about 45 years and claiming that he was doing
agriculture and he has produced R.T.C. and it shows the
R.T.C. stands in the name of Savithramma. For having
considered all these aspects into consideration it is a fit
case to award global compensation of Rs.20,000/- which
includes pain and suffering, medical expenses, incidental
expenses such as conveyance, food and nourishment ,
loss of income during the period of treatment , loss of
amenities and other expenses.
48. ISSUE No.3 ( in M.V.C. NO.6745/2016): It is
the case of the petitioner that on account of the accident
he has sustained grievous injuries. The petitioner in
order to prove his case has produced wound certificate at
Ex.P.28, which discloses petitioner has sustained
tenderness over the left leg, restriction of movements, x-
ray shows left condylar fracture of tibia and he took
treatment from 07.08.2016 to 24.10.2016 i.e. for a period
SCCH-1 50 MVC No.5332 to 5334&6745/2016
of 77 days. He has further produced discharge summary
at Ex.P.29 which discloses that the petitioner had
undergone surgery of ORIF during the period of inpatient.
In the cross-examination, petitioner says he was taken
to Subhash hospital immediately after the accident. He
was inpatient for a period of 3 months at Rajarajeshwar
hospital and he has taken follow up treatment in the said
hospital. For having taken note of the nature of the
injuries sustained by the petitioner , I award a sum of
Rs.40,000/- towards Pain and sufferings.
49. It is the contention of the petitioner that due to
the accidental injuries he has sustained permanent
disability. In order to prove the same he has examined
the doctor as PW-2 and in his affidavit he reiterated the
nature of the injuries suffered and the treatment taken
him in the hospital as inpatient. PW-2 in his evidence he
says the petitioner has sustained fracture of left tibial
SCCH-1 51 MVC No.5332 to 5334&6745/2016
condyle and he underwent ORIF. On examination of the
petitioner when he came for assessment of disability he
found tenderness over left knee, restriction of joints
movements of left knee flexion, extension 30 degree,
normal 0-125 degree, cannot squat on the floor, difficult
to climb upstairs, walk on slope, knee sit cross legged
and stand on affected limb. The radiological examination
shows fractures are mal united with arthritis changes in
left knee. Doctor has assessed the permanent disability
at 40% to left lower limb and 20% to whole body. PW-7
says petitioner needs one more surgery for removal of
implants. He was subjected to cross-examination. In the
cross-examination, it is elicited that the doctor has not
treated the patient and he has seen the discharge
summary copy. It is further elicited that the injured was
subjected to surgery. He admits that while discharging
the patient an advise was made to take the follow up
treatment and the follow up treatment will be advised to
SCCH-1 52 MVC No.5332 to 5334&6745/2016
reduce the restrictions. He further admits that generally
if follow up treatment is taken, the percentage of
disability also will be reduced. It is further elicited that
the fracture is mal-united. It is suggested that the mal
union is because of not taking the follow up treatment
and the said suggestion was denied. Witness says
normally, tibial condyle fractures will be mal united. He
admits if the patient is below the age of 35, normally the
fracture will be united. He admits petitioner is aged
about 27 years. It is suggested that petitioner has not
taken the follow up treatment as advised and hence, the
fracture was mal united and the sad suggestion was
denied. He admits in his affidavit he has not given
mathematical calculation for the disability but he has
mentioned the same in his OPD book. It is suggested that
while assessing the whole body disability 1/3rd has to be
taken to that of the particular limb disability as per the
guidelines and the said suggestion was denied. He
SCCH-1 53 MVC No.5332 to 5334&6745/2016
further admits that he has not assessed the functional
disability and the avocation.
50. In keeping the material available before the
Court, the petitioner has relied upon the wound
certificate as well as the discharge summary and also
doctor who has been examined before the Court also
produced recent x-ray at Ex.P.43 which confirms the
fracture is mal united. Only contention taken in the
cross-examination is that he has not taken the follow up
treatment, hence, fracture is not united. The petitioner
has suffered mal union of fracture is not disputed by the
respondents and doctor who has been examined before
the Court says case of tibial condyle fracture, fracture
will be mal united. PW-7 further admits in his affidavit he
has not given mathematical calculation for the disability
but he has mentioned the same in his OPD book. Doctor
has assessed the permanent physical disability at 40% to
SCCH-1 54 MVC No.5332 to 5334&6745/2016
left lower limb which is 20% to whole body. As admitted
by PW-7 there is mal union. The disability assessed by
the PW-7 appears to be little on higher side and the same
was 50% , he should have taken 1/3rd and 1/3rd comes
to 13% and there is mal union also , hence, I have taken
the disability suffered by the petitioner at 15%. For
having taken note of the nature of the injuries sustained
by the petitioner 15% disability to whole body is just and
reasonable.
51. The petitioner claims that he was working as
driver and also doing chicken business and earning
Rs.25,000/p.m. but the petitioner has not placed any
documentary proof before the Court. In the absence of
any documentary proof, I would like to take income of
the petitioner at Rs.8,000/-p.m. as the accident is of the
year 2016.
SCCH-1 55 MVC No.5332 to 5334&6745/2016
52. The petitioner has stated his age as 31 years in
the petition. In the driving licence his date of birth is
mentioned as 26.03.1985 and the accident is of the year
2016, hence, the age of the petitioner is 31 years as on
the date of accident and the appropriate multiplier
applicable is 16. Hence, the petitioner is entitled for
compensation under the head of loss of earning due to
disability as : Rs.8000x12x16x15/100 = Rs.2,30,400/-
and the same is rounded off to Rs.2,30,500/-. Hence, I
award Rs.2,30,500/- towards loss of earning due to
disability.
53. The petitioner has produced medical bills to the
tune of Rs.17,224/- as per Ex.P.30. He has also
produced prescriptions (36) at Ex.P.31. On verification of
the medical bills, there prescriptions for the same and
the medical bills are pertaining the inpatient period.
Hence, I have accepted the medical bills and the same is
SCCH-1 56 MVC No.5332 to 5334&6745/2016
rounded off to Rs.17,500/-. Hence, I award Rs.17,500/-
towards medical expenses.
54. Regarding loss of income is concerned, the
petitioner was inpatient in the hospital for a period of
77 days. He had undergone surgery, therefore, he could
not earn for 6 months. Hence, I award Rs.48,000/-
towards loss of income during the treatment period .
55. The petitioner took treatment in the hospital as
inpatient from 07.08.2016 to 24.10.2016 for a period of
77 days. During that period he might have spent some
amount towards conveyance, food and nourishment etc.,
Hence, I award Rs.50,000/- as compensation under the
head of food and nourishment, conveyance, attendant
charges and other incidental charges.
SCCH-1 57 MVC No.5332 to 5334&6745/2016
56. The petitioner is aged about 31 years and he
has to lead rest of his life with this disability of 15% and
the fracture is mal united. For having taken said fact into
consideration , I award Rs.40,000/- under the head of
loss of amenities.
57. In the petition, petitioner has stated that he has
to undergo one more surgery for removal of implants. In
the chief examination of PW-7, he says petitioner needs
one more surgery for implant removal. In the cross-
examination, it is suggested to PW-7 that the removal of
implants cost will be lesser than the surgery and the said
suggestion was denied. Hence, I award Rs.25,000/-
under the head future medical expenses.
58. The details of compensation, I propose to
award are as under:
SCCH-1 58 MVC No.5332 to 5334&6745/2016
Sl. Head of Compensation Amount
No.
1. Pain and Sufferings Rs. 40,000-00
2. Medical expenses Rs. 17,500-00
3. Loss of income during the Rs. 48,000-00
period of inpatient and period
of treatment.
4. Food and nourishment, Rs. 50,000-00
conveyance , attendant
charges, ambulance charges
and other incidental
expenses.
5. Future loss of earning due to Rs. 2,30,500-00
permanent disability
6. Loss of amenities Rs. 40,000-00
7. Future medical expenses Rs. 25,000-00
(removal of implants)
Total Rs. 4,51,000-00
The petitioner in M.V.C. No.6745/2016 is entitled
for the compensation of Rs.4,51,000/-.
59. Relying upon a judgment of the Apex Court
reported in 2013 AIR SCW 5375 (Minu Rout and others
SCCH-1 59 MVC No.5332 to 5334&6745/2016
Vs. Satya Pradyumna Mohapatra and others), with
regard to interest at the rate of 9% p.a. on the
compensation amount, in para 13 of the judgment, the
Apex Court held that Insurance Company is also liable to
pay interest at the rate of 9% p.a. from the date of
application till the date of payment and also by following
the principles laid down in (2011) 4 SCC 481: (AIR 2012
SC 100) (Municipal Council of Delhi Vs. Association of
Victims of Uphaar Tragedy). In view of the above
judgments with regard to the rate of interest, and also it
is settled law that while awarding interest on the
compensation amount, the Court has to take into
account the rate of interest of the nationalized bank and
the rate of interest at 9% cannot said to be on the higher
side. Accordingly, the petitioner is entitled to interest at
the rate of 9% p.a.
60. As regards the liability is concerned, I have
already discussed while discussing issue No.1 and 2 and
SCCH-1 60 MVC No.5332 to 5334&6745/2016
the liability has been fixed on the respondent No.1 and 2
owner and insurer of the alto car and the respondent
No.1 and 2 being the owner and insurer are jointly and
severally liable to pay the compensation. However,
primary liability is fixed on respondent No.2, insurance
company of the Alto car to satisfy the award. Hence, this
issue is answered accordingly.
61. Issue No.4: In the result, I proceed to pass
the following:
ORDER
MVC 5332/2016 The petition filed by the petitioners is allowed in part against the respondents.
The petitioners are entitled for total compensation of Rs.35,29,000/- with interest at the rate of 9% per annum from the date of petition till realisation.
The respondents No.1 and 2 are jointly and severally liable to pay the award amount with interest. SCCH-1 61 MVC No.5332 to 5334&6745/2016 However, the primary liability to pay the compensation amount is fixed on the respondent No.2 - Insurance Company and it is directed to deposit the compensation amount within two months from the date of this order.
Compensation amount is apportioned as follows:-
Out of the total compensation amount, the petitioner No.3 is entitled for Rs.1,00,000/- awarded under the head of loss of love and affection and the same along with interest is ordered to be released in favour of petitioner No.3.
The remaining compensation amount is apportioned equally between petitioner No.1 and 2 .
Out of the compensation amount so apportioned in favour of the petitioners No.1 and 2, 50% with proportionate interest is ordered to be invested in high yielding fixed deposit in their respective names in any of the nationalized or scheduled bank of their choice for a SCCH-1 62 MVC No.5332 to 5334&6745/2016 period of 3 years and 5 years respectively. Remaining amount with proportionate interest is ordered to be released to the respective petitioners i.e, petitioners No.1 and 2.
MVC 5333/2016 The petition filed by the petitioner is allowed in part against the respondents.
The petitioner is entitled for compensation of Rs.22,35,500/- with interest at the rate of 9% per annum from the date of petition till realisation.
The respondents No.1 and 2 are jointly and severally liable to pay the award amount. However, the primary liability to pay the compensation amount is fixed on the respondent No.2 - Insurance Company and it is directed to pay the compensation amount within two months from the date of this order.
The Compensation amount is apportioned as follows:SCCH-1 63 MVC No.5332 to 5334&6745/2016
Petitioner No.1 - Wife - 40%
Petitioner No.2 - son - 20%
Petitioner No.3 - Son - 20%
Petitioner No.4 -Mother - 20%
Out of the compensation amount so apportioned in favour of the petitioner No.1, 50% with proportionate interest is ordered to be invested in high yielding fixed deposit in her name in any of the nationalized or scheduled bank of her choice for a period of 5 years. Remaining amount with proportionate interest is ordered to be released to the petitioner No.1.
Out of the compensation amount so apportioned in favour of the petitioner No.4, 50% with proportionate interest is ordered to be invested in high yielding fixed deposit in her name in any of the nationalized or scheduled bank of her choice for a period of 3 years. Remaining amount with proportionate interest is ordered to be released to the petitioner No.4. SCCH-1 64 MVC No.5332 to 5334&6745/2016
As far as petitioners No.2 and 3, who are still minors, their portion of compensation amount with entire interest is ordered to be invested in high yielding fixed deposit in the name of respective petitioners in any of the nationalized or scheduled bank of the choice petitioner No.1, until they attain majority, with liberty to the petitioner No.1 to withdraw interest once in 3 months on the deposits for the maintenance of minor petitioners No.2 and 3.
M.V.C.No.5334/2016:
The petition filed by the petitioner is allowed in part against the respondents.
The petitioner is entitled for global compensation of Rs.20,000/- with interest at the rate of 9% per annum from the date of petition till realisation.SCCH-1 65 MVC No.5332 to 5334&6745/2016
The respondents No.1 and 2 are jointly and severally liable to pay the award amount. However, the primary liability to pay the compensation amount is fixed on the respondent No.2 - Insurance Company and it is directed to pay the compensation amount within two months from the date of this order.
As the compensation amount is very meager the entire compensation amount with interest is ordered to be released to the petitioner .
MVC 6745/2016 The petition filed by the petitioners is allowed in part against the respondents.
The petitioner is entitled for compensation of Rs.4,51,000/- with interest at the rate of 9% per annum on Rs.4,26,000/- from the date of petition till realisation.SCCH-1 66 MVC No.5332 to 5334&6745/2016
The respondents No.1 and 2 are jointly and severally liable to pay the award amount. However, the primary liability to pay the compensation amount is fixed on the respondent No.2 - Insurance Company and it is directed to pay the compensation amount within two months from the date of this order.
Out of the compensation amount to which the petitioner is entitled, 50% with proportionate interest shall be kept in F.D. in his name in any nationalized or scheduled bank of his choice for a period of 5 years with liberty to draw the accrued interest periodically and the remaining amount with proportionate interest is ordered to be released to petitioner.
Advocate's fee is fixed at Rs.1,000/- in each case.
Original of the judgment shall be kept in MVC No.5332/2016 and its copies are kept in MVC No.5333/16, 5334/16 and 6745/16.SCCH-1 67 MVC No.5332 to 5334&6745/2016
Draw decree accordingly (Dictated to the Stenographer, transcribed by her, corrected, signed and then pronounced by me in the open Court on this the 3rd day of July 2017) (H.P.SANDESH,) Member, Prl. M.A.C.T. Bangalore.
ANNEXURES:
Witnesses examined on behalf of the petitioners:
P.W.1 : Shivakumar P.W.2 : Jayalakshmi P.W.3 : Shivaraju P.W.4 : Lokesh V. P.W.5 : S.R.Sure P.W.6 : C.Ramachandran C. P.W.7 : Dr.B.Ramesh
Documents marked on behalf of the petitioners:
Ex.P-1 : Copy of FIR
Ex.P-2 : Copy of spot mahazar
Ex.P-3 : Copy of P.M.Report
Ex.P-4 : Copy of Inquest
Ex.P-5 : Copy of IMV report
Ex.P-6 Copy of sketch
Ex.P.7 Copy of charge sheet
SCCH-1 68 MVC No.5332 to 5334&6745/2016
Ex.P.8 Notarised copy of Aadhar card of
PW-1(original compared)
Ex.P.9 Notarised copy of Aadhar card of
wife of PW-1 (original compared) Ex.P.10 Notarised copy of Aadhar card of petitioner No.3 in MVC No.5332/16 (original compared) Ex.P.11 Computerized copy of pay slip of deceased in M.V.C.No.5332/16 Ex.P.12 Notarised copy of employer identity card of deceased (original compared) Ex.P.13 Notarised copy of Aadhar card of deceased in MVC No.5332/16 (original compared) Ex.P.14 Copy of P.M.Report in M.V.C.no.5333/16 Ex.P.15 Copy of Inquest report Ex.P.16 Notarised copy of Aadhar card (original compared) petitioner no.1 in M.V.C.No.5333/16 Ex.P.17 & Notarised copy of Aadhar cards of 18 son of the deceased (original compared) Ex.P.19 Notarised copy of driving licence of the deceased Ex.P.20 Notarised copy of election identity card in MVC No.5333/16(original compared) Ex.P.21 Copy of salary certificate SCCH-1 69 MVC No.5332 to 5334&6745/2016 Ex.P.22 Copy of wound certificate in MVC No.5334/16 Ex.P.23 Discharge summary Ex.P.24 Medcial bills (8) Ex.P.25 X-rays Ex.P.26 Notarised copy of election identity card (original compared) Ex.P.27 R.T.C. Ex.P.28 Copy of wound certificate Ex.P.29 Discharge summary Ex.P.30 Medical bills (48) Ex.P.31 Prescriptions (36) Ex.P.32 Notarised copy of election identity card (original compared) Ex.P.33,34 Bank statement Ex.P.35 Authorisation letter Ex.P.36 True copy of appointment letter Ex.P.37 Attested copy of daily orders Ex.P.38 Attendance register with salary details Ex.P.39 Documents of death gratuity, leave encashment and group insurance benefit Ex.P.40 Authorization letter Ex.P.41 Case sheet Ex.P.42 OPD Ex.P.43 X-ray SCCH-1 70 MVC No.5332 to 5334&6745/2016 Witnesses examined on behalf of the respondents :
RW-1 Harish Documents marked on behalf of the respondents:
-Nil-
(H.P.SANDESH) Member, Prl., M.A .C.T. Bangalore Kvs/-