Bangalore District Court
) Sri Siddashetty vs ) Smt.Savitha on 26 March, 2015
BEFORE THE MEMBER PRL.MOTOR ACCIDENT
CLAIMS TRIBUNAL AT BANGALORE
(S.C.C.H. - 1)
DATED THIS THE 26th DAY OF MARCH 2015
PRESENT : SRI H.P.SANDESH, B.A.L, ., LL.B,
MEMBER, PRL. M.A.C.T.
M.V.C. No.3668/2014
Petitioners: 1) Sri Siddashetty,
S/o Doddaputtashetty,
Aged about 65 years.
2) Smt.Jayamma,
W/o. Siddashetty,
Aged about 53 years.
Both are residing at
Somanathapura Village,
Akkur Post,
Channapatna Taluk,
Ramanagara District.
(By Sri T.Parameshwarappa,
Advocate)
-Vs-
Respondents: 1) Smt.Savitha,
W/o K.S.Shivakumar,
Major,
NO.12, 25th 'A' Cross,
Corporation Colony,
Govindarajanagar,
Bangalore-40.
(By Sri K.T.J., Advocate)
SCCH 1 2 MVC No.3668/2014
2) Divisional Manager,
Oriental Insurance Co.Ltd.,
No.70/5, I floor,
Suvarna Towers,
Near Vijayanagar BDA
Complex,
Govindarajanagar,
Bangalore -40.
(By Sri R.P., Advocate)
******
JUDGMENT
The petitioners have filed this petition under Section 166 of the of the Motor Vehicles Act, 1989 claiming compensation of Rs.38 Lakhs from the respondents with regard to the death of their son in the road traffic accident.
2. The brief facts of the case are :
It is the case of the petitioner that on 25.7.2014 at about 8.45 a.m. the deceased was riding motor cycle bearing No.KA-05-HS-8943 near Nagarabhavi ring road to reach his office at Kalyani Motros Car Show room , when he reached near Nayandahalli junction upper ramp, the driver of a tempo traveler bearing No.KA-02-AA-7725 came in SCCH 1 3 MVC No.3668/2014 high speed in rash and negligent manner and dashed against the motor cycle from behind and as a result deceased fell down and sustained grievous injuries .
3. Immediately after the accident , injured was shifted to Victoria hospital and the doctor declared him brought dead. The deceased was hale and healthy and he was the only bread earner of the family. The petitioners have spent an amount of Rs.15,000/- towards transportation of body and Rs.50,000/- towards funeral and obsequies. Byatarayanapura traffic police have registered a case against the driver of the tempo traveler under section 279 and 304(A) of I.P.C. The respondent No.1 being the owner and respondent NO.2 being the insurer of the tempo traveler are jointly and severally liable to pay the compensation amount to the petitioners.
4. In pursuance of this claim petition, this Court issued notice against the respondents. Respondent No.1 and 2 have appeared before the Court through their respective counsels and have filed written statement separately.
Respondent NO.1 owner of the treatment has filed written statement denying the petition averments. This respondent has SCCH 1 4 MVC No.3668/2014 contended that the petitioner has to prove his age, income mode of accident . It is contended that the tempo traveler was insured with the second respondent and the policy was valid as on the date of the accident and the driver had valid and effective driving licence. The compensation claimed by the petitioners are excessive, exorbitant and speculative Hence, prays to dismiss the petition.
Respondent No.2 has filed written statements denying the petition averments. The issuance of the policy in favour of the first respondent is admitted and the policy was in force as on the date of the accident and its liability if any is subject to the terms and conditions of the policy. It is contended that the driver of the tempo traveler bearing No. KA-02-AA-7725 did not have the permit and FC to ply on road as on the date of the accident. It is further denied the petitioners are not the dependants of the deceased and they were not depending upon the deceased for their livelihood. This respondent denies the , avocation , income of the deceased , amount spent for transportation and funeral expenses. This respondent reserves the right to file additional objections. The insured has not complied section SCCH 1 5 MVC No.3668/2014 134(c) and police have not complied section 158(6) of M.V.Act. Hence, prays to dismiss the petition.
5. Based on the pleadings, this Court has framed the following:-
1) Whether the Petitioners prove that the deceased succumbed to injuries in a Motor Vehicle Accident that occurred on 25.07.2014 at about 08.45 a.m. on Nagarabhavi ring road, near Nayandahalli junction upper ramp, within the jurisdiction of Byatarayanapura Traffic police station on account of rash and negligent driving of the tempo traveler bearing registration No. KA-02-AA-7725 by its rider?
2) Whether the respondent No.2 proves that the accident occurred on account of negligence act of the deceased?
3) Whether the Petitioners are entitled for compensation? If so, how much and from whom?
4) What Order ?
6. In order to prove their claim, the second petitioner is examined as PW-1, two more witnesses is examined as PW-2 and 3 and they have got marked the documents Ex.P.1 to 22. On the other SCCH 1 6 MVC No.3668/2014 hand, the respondents have not led any oral evidence but they have got marked copy of policy at Ex.R.1
7. I heard the arguments of petitioner counsel and respondent counsel.
8. Having heard 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 the affirmative
2. Issue No.2 ... In the negative
3. Issue No.3 ... partly in the affirmative
4. Issue No.4 ... As per final order For the following:
REASONS
9. Issue No.1 and 2 : These two issues are inter connection to each other and hence, they have taken up together for discussion in order to avoid repetitions.
10. It is the case of the petitioners that the deceased succumbed to the injuries on 25.7.2014 at about 8.45 a.m. on Nagarabhavi ring road, near Nayandahalli junction upper ramp, on account of the rash and negligent driving of the driver of the tempo traveler bearing No. KA-02-AA-7725 . It is the contention of the respondent No.2 that the SCCH 1 7 MVC No.3668/2014 accident was occurred due to the negligence act of the deceased himself.
11. The petitioner in order to prove their case , second petitioner has filed affidavit reiterating the petition averments and also got marked the documents FIR, sketch mahazar , IMV report and charge sheet . She was subjected to cross-examination. She admits that she did not witness the accident. It is suggested that in collusion with the police a false case has been registered against the driver of the tempo traveler that the accident was occurred due to his negligence and the same was denied. It is suggested that the accident occurred due to negligence of her son and the said suggestion was denied.
12. The petitioner also examined one witness as PW2 and he says that on 25.7.2014 at 8.45 a.m. he was going on his motor cycle from his home to reach his office on Nagarbhavi BDA ring road , while going so, near underpass the deceased was going on his motor cycle ahead of him towards ring road junction at that time a tempo traveler bearing No. KA-02-AA-7725 driven by its driver with his speed in rash and negligent manner dashed to the deceased motor SCCH 1 8 MVC No.3668/2014 cycle from behind and caused the accident. Due to the impact the deceased fell down and sustained injuries and he became unconscious as he had sustained head injury. He was immediately shifted to Victoria hospital in a auto along with the other public and doctor declared him brought dead. He was subjected to cross-examination. In the cross-examination , it is elicited that said road is a double road and there is a road median and one way. The width of the road may be around 30 feet. It is elicited that motorist has to go around 300 feet forward and take right turn to reach the Kalyani Motors. He further admits that to take right turn the motorist has to proceed in the right side of the road. It is suggested that the motorist suddenly took the vehicle towards the right side when he was proceeding in the left side of the road and hence, the accident was occurred and the said suggestion was denied. He admits the sketch drawn by the police is correct. It is admitted that while taking the vehicle right turn the rider has to put the indicator and he should be more cautious. It is suggested that his friend has contributed negligence to this accident and said suggestion was denied. The respondents have not led any evidence before the Court to substantiate their contention that the deceased SCCH 1 9 MVC No.3668/2014 himself was negligent and accident occurred on account of his negligence.
13. Now, let me appreciate the evidence of PW1 and 2 and in the absence of respondent's evidence whether the respondents have made out grounds to come to a conclusion of contributory negligence. No doubt the respondents need not led any evidence but whether they have elicited the answers from the mouth of PW1 and 2 . It is important to note that PW1 is not an eye witness . She is mother of the deceased and evidence of PW2 is important . It is the evidence of PW2 that when the motor cyclists was proceeding the offending vehicle driver dashed the motor cycle from behind and caused the accident and as a result he fell down . In the cross-examination of PW2 , no doubt , it is elicited that the person who is taking a right turn has to put indicator and he should be more cautious and also elicited that sketch is drawn by the police is correct . On perusal of Ex.P.3 sketch , there is no any right turn at the place of accident spot and there is a distance of 19 feet an . It is important to note that the deceased was proceeding from Nagarbhavi side in order to reach his office Kalyani Motors Car Show room and he was proceeding on the SCCH 1 10 MVC No.3668/2014 fly over. It is the allegation that the tempo traveler driver came and dashed behind the motor cyclists and when such being the case , the question of the deceased taking the right turn does not arise at all. When there is no right turn near the accident spot and if the accident was taken near the place of right turn which is existence, the defence could have been accepted. Hence, the very contention of the respondent cannot be accepted . The respondents have not examined the driver of the tempo traveler. The right person to speak about the contributory negligence is the driver of the tempo traveler himself and he has not been examined. In order to consider the contributory negligence there must be cogent evidence as held in the judgment reported in (2014 Kant.M.A.C. 330 (SC) ( Meera Devi and another )- No cogent evidence to prove plea of contributory negligence, doctrine of common law cannot be applied - compensation awarded by this Tribunal just and proper. Hence, I answer issue No.1 in the affirmative and issue No.2 in the negative.
SCCH 1 11 MVC No.3668/2014
14. Issue No.3:- It is the case of the petitioners that they have lost their son in the R.T.A. and they are suffering from untold pain and mental agony for the sudden death of their son who was hale and healthy. The petitioners have become helpless and destitute for the loss of life of the deceased who was the only earning member of the family. It is their contention that they have spent Rs.15,000/- towards transportation , Rs.50,000/- towards funeral and obsequies.
15. The respondents have contended in the objection statement that the petitioners have to prove the employment of the deceased . The second petitioner in her affidavit has reiterated the averments of the petition and also produced P.M.Report marked as Ex.P.6 and notice copy , S.S.L.C. and Diploma marks card as Ex.P.9 and 10. and also got marked the Ex.P.11 salary certificate. Apart from that salary slips in respect of 3 months which are marked as Ex.P.12 and also produced identity card, Pan card and driving liecence as Ex.P.13 to 15 and petitioners have also relied upon the Aadhar card Ex.P.8, bank pass book for having received the salary and election identity card of the deceased , obituary card and certificate given by the Eurovigil and computer course examination certificate as Ex.P.17 to 22.
SCCH 1 12 MVC No.3668/2014
16. It is elicited in the cross-examination that she has got ration card , aadhar card and identity card and admitted that she has not produced her ration card, aadhar card and identity card . She can produce the same before the Court. It is important to note that she admits that the deceased is the younger to her other children and her elder daughter is aged 45 years . It is suggested that she is aged more than 60 years. It is suggested that with an oblique motive she did not produce the ration card, identity card and aadhar card with an intention to avoid the age proof. It is suggested that her son was not earning Rs.22.737/- and Rs.5000/- additional income and all these suggestions were denied. She admitted that she can examine the employer. The employer is examined as PW-3. In his evidence he says that the deceased was working as Manager HR and he was drawing Rs.22,737/-p.m. with incentives. In the cross-examination of PW2 , it is elicited that the deceased was appointed in 2011 and they have maintained the attendance register and salary will be paid based on the attendance . He also admits that the incentives will be given based on the performance and salary was Rs.12,000/- and if incentives are not paid the salary will not vary. It is also elicited that the salary SCCH 1 13 MVC No.3668/2014 is transferred to his account and his bank statement will show the salary details which he had drawn during his service. The amount mentioned in the affidavit is in respect of July month and he is a permanent employee.
17. Now, let me consider the oral and documentary evidence available on record. On perusal of the Ex.P.10, s card of the deceased, it discloses that the date of birth as 08.03.1984 and the accident was occurred on 25.7.2014 . Hence, it is clear that he was running 31 years and the relevant multiplier applicable is 16.
18. Though the respondent counsel has relied upon the judgment reported in 2010(4)AIR Kar.R.1011 ( Regional Manager, Oriental Insurance Company Ltd. Vs. J.Ananda Murthy and others) wherein it is held that the multiplier has to be taken based on the age of the younger parent i.e., mother's age has to be taken . But 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 SCCH 1 14 MVC No.3668/2014 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 age of dependants has no nexus with the computation of compensation .
19. Now, let me consider the salary of the deceased . The petitioners have relied upon the salary certificate Ex.P.11 and the same is in respect of the month of July and the same is admitted by PW3. In the month of July he worked only for 25 days and his salary was Rs.22,737/- and the same is inclusive of incentives and petitioners have also relied upon the Ex.P.12 salary slip for the month of December 2013 and his salary was Rs.25,164/- and the salary for the month of May is Rs.29,707/- , June is Rs.24,550. It varies from month to month. It is important to note that the petitioners have also got marked the document Ex.P.18 i.e., pass book of S.B.I. and the account was opened on 02.12.2011 and also it is admitted by the PW3 that he has joined the company in the year 2011 and this bank statement discloses the salary from May 2013 to April 2014 . It is important to note that the petitioners have relied upon the salary slip which are marked as Ex.P.11 and 12 and though salary slips are with regard to SCCH 1 15 MVC No.3668/2014 the higher salary which he has received and it is clear evidence of PW-3 that his salary is Rs.12,000/- and if incentives are not paid the salary will not vary and Rs.22,737/- is with incentives and bank statement reflects in the month of April 2014 he has received 16,059/- m March 2014 -Rs.8816/-, February 2014 Rs.11,561/- December 2013-23,311, November 2013- Rs.16,105/- , October 2013- Rs.8,084/, September 2013- 14,949/- , August 2013- 11.465/- , July 2013- Rs.12,273/- , June 2013- Rs.10,527/- , May 2013- Rs.14,357/- (total Rs.1,54,474) . Hence, this Court has to take the average and not the particular month salary as contended by the petitioner in terms of Ex.P.11 and 12. By taking the average the monthly salary of the deceased is Rs.12,872/- (1,54,474/12).
20. In view of the principles laid down in the judgment reported in 2013 ACJ 1403 (Rajesh 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 and hence, as the deceased was aged 31 years at the time of accident, 50%, of his income, has to be taken as loss of future prospects, which works out to Rs.6,436/- and thus the total works out to Rs.19,308/-.
SCCH 1 16 MVC No.3668/2014
21. The deceased was bachelor at the time of accident, as per principles laid down in the judgment reported in 2013 ACJ 1253 (SC) out of his income 1/3rd has to be deducted towards his personal expenses. It works out to be Rs.12,872/-. (19,308-6436) . Then the annual income is Rs.1,54,464/-. (12872x12). The age of the deceased as on the date of the accident is 31 years and the multiplier applicable is 16 and if we multiply the annual income of the deceased by the multiplier , the same works out to Rs.24,71,424/- (1,54,464x16), to which the petitioner is entitled to under the head loss of dependency on account of death of their son in the accident.
22. 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, pains and sufferings, loss of consortium, deprivation of SCCH 1 17 MVC No.3668/2014 protection, social security etc., and Rs.10,000/- towards cost incurred on account of funeral and ritual expenses. In this case also, since the deceased has left behind his parents , I deem it proper to award Rs.1,00,000/- as compensation to the parents 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.
23.The details of compensation I propose to award are as under:
Sl.No. Head of Compensation Amount/Rs 1 Loss of dependency 24,71,424.00 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 25,81,424.00
24. Relying upon a judgment of the Apex Court reported in 2013 AIR SCW 5375 (Minu Rout and others Vs. Satya Pradyumna Mohapatra and others), with regard to interest at the rate of 9% p.a. on SCCH 1 18 MVC No.3668/2014 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.
25. As regards the liability to be fixed on the respondents, admittedly the respondent No.1 is the owner of the treatment and the respondent No.2 is the insurer of the same. Both the respondents are jointly and severally liable to pay compensation to the petitioners. However, primary liability is fixed on respondent No.2 insurance company to satisfy the award. Hence, I answer issue No.3 accordingly.
SCCH 1 19 MVC No.3668/2014
26. Issue No.4: In view of the discussions made above, I proceed to pass the following:
ORDER The petition filed by the petitioner is allowed in part against the respondents.
The petitioner is entitled for compensation of Rs.25,81,424/- 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 he is directed to pay the compensation amount within two months from the date of this order.
The compensation amount is equally distributed among the petitioners.
Out of the total compensation amount, 50% with proportionate interest is ordered to be released in the favour of the petitioners NO.1 and 2 and remaining 50% with proportionate interest is ordered to be deposited in the name of petitioner No.1 and 2 SCCH 1 20 MVC No.3668/2014 in any of the nationalized or scheduled bank of their choice for a period of 3 years.
Advocate's fee is fixed at Rs.1,000/-. Draw an award accordingly.
(Dictated to the Stenographer , transcribed by her, corrected, signed and then pronounced by me in the open court dated this the 26th day of March , 2015) (H.P.SANDESH) Member, Prl. M.A.C.T. Bangalore ANNEXURES Witnesses examined on behalf of the petitioners:
P.W.1 Smt.Jayamma
P.W.2 Srinath
P.W.3 Praveen G.V.
Witnesses examined on behalf of the respondents :
-Nil-
Documents marked on behalf of the petitioners:
Ex.P-1 : Copy of FIR Ex.P.2 : Copy of sketch Ex.P-3 : Copy of mahazar Ex.P-4 : Copy of IMV report Ex.P-5 : Copy of Inquest report SCCH 1 21 MVC No.3668/2014 Ex.P-6 : Copy of P.M.Report Ex.P-7 : Copy of charge sheet Ex.P-8 : Death certificate Ex.P.9 Notarised copy of diploma marks card (9) of deceased Ex.P.10 Notarised copy of S.S.L.C. marks card Ex.P.11 Salary certificate Ex.P.12 Salary slips (3) Ex.P.13 Notarised copy of employment identity card Ex.P.14 Notarised copy of PAN card Ex.P.15 Notarised copy of driving licence for LMV Ex.P.16 Notarised copy of DL for two wheeler Ex.P.17 Notarised copy of Aadhaar card Ex.P.18 Notarised copy of bank pass book Ex.P.19 Notarised copy of election identity card of deceased Ex.P.20 Notarised copy of computer course certificate Ex.P.21 Notarised copy of certificate given by Eurovigil Ex.P.22 Obituary card
Documents marked on behalf of the respondents:
Ex.R.1 : Copy of policy
(H.P.SANDESH)
Member, Prl. M.A.C.T. Bangalore