Bangalore District Court
No.2 And 3 Being The Unemployed And ... vs No.1/Insured To Claim Indemnification ... on 16 September, 2016
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 16th day of September, 2016.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com.,LL.B.(Spl.),L.L.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C.No.2723/2015
1. Quaid Johar, ..... PETITIONERS
S/o. Mohammed Hussain,
Aged about 50 years.
2. Fatema,
D/o. Quaid Johar,
Aged about 20 years.
3. Burhanuddin,
S/o. Quaid Johar,
Aged about 19 years.
All are residing at No.1,
22nd Main Road,
Rizwan Masjid Road,
J.P. Nagar 5th Phase,
Bangalore - 560 078.
(By Sri. M.V. Vishwanath, Adv.,)
V/s
1. Jiyaulla. M., ..... RESPONDENTS
S/o. Mustafa,
No.230, Avalahalli,
Anjanapura,
SCCH-7 2 M.V.C.No.2723/2015
Kanakapura Road,
Bangalore.
(R.C. Owner of Lorry bearing
Registration No.KA-42-239)
2. Shriram General Insurance
Company Ltd.,
Regional Office,
No.14, 2nd Floor,
Monarch Chambers,
Infantry Road,
Bangalore - 560 001.
(Policy No.10003/31/16/015836,
Valid from 07.04.2015 to 06.04.2016)
(R-1 - Exparte)
(R-2 - By Sri. B.T. Rudra Murthy, Adv.,)
JUDGMENT
The Petitioners have filed the present petition as against the Respondents No.1 and 2 under Section 166 of the Motor Vehicles Act, 1989, praying to award compensation of Rupees 90,00,000/- with interest and costs, in respect of the death of Smt. Tasneem S/o. Quaid Johar.
2. The brief averments of the Petitioners' case are as follows;
a) On 06.06.2015 at about 3-55 p.m., the deceased Tasneem was riding the Activa Honda bearing Registration No.KA- 05-HE-4814 from Raghavendra Mutt, slowly and cautiously by SCCH-7 3 M.V.C.No.2723/2015 observing the traffic rules and regulations, while so proceeding reached at 24th Main, 1st Cross Junction, J.P. Nagar 2nd Phase, Bangalore, at that time, suddenly, the driver of Lorry bearing Registration No.KA-42-239 came from behind in a rash and negligent manner, endangering to human life, without observing any of the traffic rules and regulations and dashed against the said deceased's Active Honda, due to which, the deceased fell down and the left wheel of the said Lorry ran over on the head of the body, consequent to which, the deceased Tasneem succumbed to fatal injuries and died on the spot.
b) Immediately after the accident, the deceased was shifted to KIMS Hospital, Bangalore, wherein, after postmortem examination, handed over the dead body to them and they have shifted the dead body to their residence by hiring the vehicle and conducted funeral and obsequies ceremonies, for which, they have spent more than Rupees 1,50,000/-.
c) Due to the sudden and sad demise of the deceased in the tragic accident, they are undergoing deep mental shock, pain and sufferings.
d) Prior to the date of accident, the deceased was hale and healthy and was an Entrepreneur and earning a sum of Rupees 4,50,000/- per annum.
e) With the said earnings, the deceased was maintaining them, since the deceased was the only earning member in the SCCH-7 4 M.V.C.No.2723/2015 family. Due to untimely death of the deceased, their life has become dark, miserable and depressed and put to great financial hardship without any earning member in the family.
f) The Petitioner No.1 being the husband of the deceased has lost love and affectionate and care taker wife and the Petitioners No.2 and 3 being the unemployed and unmarried daughter and son respectively, have lost love and affectionate and care taker mother.
g) The accident in question purely due to the rash and negligent manner of driving of the said Lorry bearing Registration No.KA-42-239 by its driver and in this connection, the jurisdictional Jayanagar Traffic Police have registered a case in their Crime No.45/2015 and after investigation, the said Police have filed a Charge Sheet as against the said driver, punishable under Section 279 and 304(A) of IPC.
h) The Respondent No.1 being the R.C. Owner of the said Lorry bearing Registration No.KA-42-239, which caused the accident and the Respondent No.2 being the Insurer, the policy was in force as on the date of accident. Hence, the Respondents are jointly and severally liable to pay the compensation to them under all heads, including general and special damages. Hence, this petition.
SCCH-7 5 M.V.C.No.2723/20153. Though the notice was duly served on the Respondent No.1, he was remained absent and hence, he is placed as exparte on 25.08.2015.
4. In response to the notice, the Respondent No.2 has appeared before this Tribunal through its Learned Counsel and has filed its written statement.
5. The Respondent No.2 inter-alia denying the entire case of the Petitioners, has further contended as follows;
a) It is the Insurer of Lorry bearing Registration No.KA- 42-239 and the liability of it, is subject to the terms and conditions of the policy of Insurance, provisions of the Motor Vehicles Act and valid and effective driving licence held by the driver of the Lorry as on the date of the accident.
b) The Respondent No.1 is duty bound under Section 134(c) of the Motor Vehicles Act, to inform the accident and submit all vehicular documents including the driving licence, permit, FC and the insurance particulars to it to seek indemnification. The Respondent No.1/insured have failed and neglected to perform the statutory obligation to seek indemnification. Violation of Motor Vehicles Act in this regard and also the terms and conditions of the contract would disentitle the Respondent No.1/insured to claim indemnification from it.
c) Without prejudice to the contentions raised above, it craves leave of this Hon'ble Tribunal under Section 170 of the SCCH-7 6 M.V.C.No.2723/2015 Motor Vehicles Act to urge all the grounds that are expressly open for the Insured/Respondent No.1, if the insured fails to contest the case.
d) As per ratio laid down by the Hon'ble Supreme Court of India in National Insurance Company Ltd., V/s. Premabai Patel and Others, reported in 2005 ACJ 1323, the Petitioners have to prove and substantiate that, there was no negligent act on the part of the deceased and she was not responsible for the accident.
e) It can be safely gathered from Police documents that, the deceased was riding her Honda Activa in a rash and negligent manner and came extreme right side of the road without giving signal and dashed against Lorry and fell down, which caused the accident and due to her negligent act, the entire accident took place. No actionable negligence can be attributed against the driver of Lorry. The deceased was solely responsible for the accident. Under these circumstances, the petition is liable to be dismissed. The Petitioners are called upon to produce DL of deceased to ride Motor Cycle without gear.
f) Without prejudice to the contentions raised above, the Petitioners are called upon to prove their relationship with the deceased Smt.Tasneem and their right to claim compensation as sole legal representatives of the deceased.
g) The Petitioners are called upon to prove that, they have not filed any claim petition before any other SCCH-7 7 M.V.C.No.2723/2015 Court/Tribunal/Forum at any other place on the same cause of action.
h) It reserves the right to file Additional Written Statement under the changed circumstances of the case.
i) It is not liable to pay any compensation or interest in respect of the said claim petition as the Insured has violated the terms and conditions of the policy and the provisions of the policy and the entire negligence is on the part of the deceased and no negligence act on the part of Insured Lorry driver. Hence, prayed to dismiss the claim petition.
6. Based on the above said pleadings, I have framed the following Issues;
ISSUES
1. Whether the Petitioners prove that, they are the dependents and legal representatives of deceased Smt. TASNEEM?
2. Whether the Petitioners prove that, the accident occurred due to rash and negligent driving of the Lorry bearing Registration No.KA-42-239 by its driver and Smt.Tasneem died due to the injuries sustained in the accident?
3. Whether the Petitioners are entitled for compensation? If so, how much and from whom?
SCCH-7 8 M.V.C.No.2723/20154. What Order?
7. In order to prove their case, the Petitioners have examined the Petitioner No.1 as P.W.1 by filing an affidavit as his examination-in-chief and have placed reliance upon Ex.P.1 to Ex.P.22. On the other hand, the Respondent No.2 has examined its Legal Officer as R.W.1 by filing an affidavit as her examination- in-chief and has placed reliance upon Ex.R.1 and Ex.R.2.
8. Heard the arguments. The Learned Counsel appearing for the Petitioners has filed the written arguments.
9. In support of the submission, the Learned Counsel appearing for the Petitioners Sri. M.V. Vishwanath has placed reliance upon the decision reported in, 2013 ACJ 1403 Supreme Court of India at New Delhi (Rajesh and Others V/s. Rajbir Singh and Others), wherein, it is observed that, Motor Vehicles Act, 1988, Section 168(1) - Just compensation - Whether Tribunal/Court has a duty irrespective of the amount claimed, to award a just, equitable, fair and reasonable compensation - Held: yes.
Quantum - Fatal accident -
Principles of assessment - Consortium
- Loss of - It would be just and SCCH-7 9 M.V.C.No.2723/2015 reasonable if Rupees 1,00,000/- is awarded for loss of consortium.
Quantum - Fatal accident -
Principles of assessment - Funeral expenses, at least Rupees 25,000/-
may be awarded in the absence of evidence for higher expenses.
10. My answers to the above said Issues are as follows;
Issue No.1 : Partly in the Affirmative,
Issue No.2 : In the Affirmative,
Issue No.3 : Partly in the Affirmative,
The Petitioners are
entitled for compensation
of Rupees 2,15,000/-
with interest at the rate
of 9% p.a. from the date
of the petition till the
date of payment, from
the Respondent No.2.
Issue No.4 : As per the final Order,
for the following;
REASONS
11. ISSUE NO.1 :- The P.W.1, who is the Petitioner No.1, has stated in his examination-in-chief that, the Petitioners No.2 and 3 are his daughter and son respectively and they have filed the claim petition against the Respondents seeking compensation for the death of his wife in a road traffic accident, which was taken SCCH-7 10 M.V.C.No.2723/2015 place on 06.06.2015 at about 3.55 p.m., when she was riding the Activa Honda bearing Registration No.KA-05-HE-4814 on 24th Main, 1st Cross Junction, J.P. Nagar 2nd Phase, Bangalore, due to hit by Lorry bearing Registration No.KA-42-239 and due to the said impact, she fell down and the left wheel of the said Lorry ran over on her head and she succumbed to fatal injuries and died on the spot. He has further stated that, his deceased wife was maintaining them as she was the only earning member in the family. The Petitioners have produced Ex.P.1 FIR and Ex.P.2 Complaint, Ex.P.6 Charge Sheet, Ex.P.7 Inquest, Ex.P.8 Dead Body Acknowledgement, Ex.P.9 Death Report, Ex.P.10 Requisition Letter, Ex.P.11 Post Mortem Report, Ex.P.12 Driving Licence relating to Tasneem, Ex.P.13 Election Identity Card relating to Tasneem, Ex.P.14 Aadhaar Card relating to Quaid Johar and Ex.P.15 Aadhaar Card relating to Fatema. On perusal of the contents of the said material documents as well as the oral version of P.W.1, it clearly goes to show that, the Petitioner No.1 is a husband, the Petitioner No.2 is a major unmarried daughter and the Petitioner No.3 is a major unmarried son of the deceased Smt. Tasneem W/o. Quaid Johar, who died on the accidental spot itself due to the accidental injuries due to the road traffic accident, which was taken place on 06.06.2015 at 3.55 p.m., on 24th Main, 1st Cross Junction, J.P. Nagar 2nd Phase, Bangalore. Since the Petitioner No.1 is a husband, the Petitioner No.2 is a major unmarried daughter and the Petitioner No.3 is a major unmarried son, they can very well be considered as the legal representatives of the said deceased. But, the Petitioners cannot be considered as the dependants upon the said deceased, as admittedly, the SCCH-7 11 M.V.C.No.2723/2015 Petitioner No.1 is a husband of the said deceased and both the Petitioners No.2 and 3 are the major daughter and son, respectively and the Petitioner No.1 being the father of the Petitioners No.2 and 3 can look after them and can maintain them from his own earnings. Further, the P.W.1 in his cross- examination has stated that, he has been doing the same business, which was running by his deceased wife, in a rented premises by paying rental of Rupees 15,000/- per month to the owner of the said shop premises, namely, Balakrishna and during last year, he has paid Rupees 13,000/- to 14,000/- per month and earlier, he was an income tax assessee and for this year, now he is paying income tax and he has Pan Number. From this, it is made crystal clear that, the Petitioner No.1, who is a husband of the said deceased, has his own income to maintain himself and his daughter and look after them. Further, the P.W.1 has clearly stated in his cross-examination that, the Petitioner No.2, who is his daughter is studying in Engineering and the Petitioner No.3, who is his son, is studying in BCA. Being a father, the Petitioner No.1 can very well look after the welfare of the Petitioners No.2 and 3, who are his children as he is having his own income even after the death of his wife. Therefore, the Petitioners cannot be considered as the dependants upon the said deceased. Accordingly, I answered Issue No.1 partly in the Affirmative.
12. ISSUE NO.2 :- The P.W.1 has stated that, on 06.06.2015 at about 3.55 p.m., his deceased wife Tasneem was riding the Activa Honda bearing Registration No.KA-05-HE-4814 from Raghavendra Mutt, slowly and cautiously by observing the SCCH-7 12 M.V.C.No.2723/2015 traffic rules and regulations, while so proceeding, reached at 24th Main, 1st Cross Junction, J.P. Nagar 2nd Phase, Bangalore, at that time, suddenly, the driver of the Lorry bearing Registration No.KA- 42-239 came from behind in a rash and negligent manner, endangering to human life, without observing any of the traffic rules and regulations and dashed against the said Activa Honda and due to which, his wife fell down and the left wheel of the said Lorry ran over on the head of his wife Tasneem and succumbed to fatal injuries and died on the spot. He has further stated that, immediacy after the accident, his deceased wife was shifted to KIMS Hospital, Bangalore, wherein, postmortem examination was conducted and handed over the dead body to them. He has further stated that, the accident in question was purely due to the rash and negligent manner of driving of the said Lorry bearing Registration No.KA-42-239 by its driver and in this connection, the jurisdictional Jayanagar Traffic Police have registered a case in their Crime No.45/2015 and after investigation, the said Police have filed a charge sheet as against the said driver punishable under Section 279 and 304(A) of IPC.
13. No doubt, the P.W.1 is not an eye witness to the accident in question. In this regard, the P.W.1 in his cross- examination has stated that, he has not seen the accident. Further, the Petitioners have not examined any eye witness as witness on their behalf to consider the accident in question, which caused to the deceased. Further, the P.W.1 in his cross- examination has stated that, he does not know the contents of the documents produced by him in the present petition and he does SCCH-7 13 M.V.C.No.2723/2015 not know Kannada to read and write. He has further stated that, he has not seen the accidental spot and the width of the said accidental road was 20 feet on either side of the said road and there is a road median in the middle of the road and the said road is a two ways road. He has further admitted that, as per Ex.P.3 Spot Hand Sketch, the accident was taken place in the middle of the road and he does not know that, because of the negligence on the part of his wife, the accident was taken place. Further, the R.W.1, who is the Legal Officer of the Respondent No.2 has stated in her examination-in-chief that, it is gathered from the Police documents that, the deceased was riding her Honda Activa in a rash and negligent manner and came extreme right side of the road without giving signal and dashed against Lorry and fell down, which caused the accident and due to her negligent act, the entire accident took place and no actionable negligence can be attributed as against the driver of the Lorry and the deceased was solely responsible for the accident. The Respondent No.2 has also produced Ex.R.2 Spot Hand Sketch.
14. But, based on the said evidence elicited from the mouth of P.W.1 by the Respondent No.2 during the course of cross-examination and the examination-in-chief of R.W.1 as stated above and non-examination of the eye witness by the Petitioners in the present case, it cannot be come to the conclusion that, there is contributory negligence attributed on the part of the deceased in riding her Activa Honda bearing Registration No.KA-05-HE-4814 as she was riding it on the middle of the accidental road and there was no negligence on the part of SCCH-7 14 M.V.C.No.2723/2015 the driver of the offending Lorry bearing Registration No.KA-42- 239, as, to consider the oral version of P.W.1 as well as their case, the Petitioners have produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Spot Hand Sketch, Ex.P.4 Spot Panchanama, Ex.P.5 MVI Report, Ex.P.6 Charge Sheet, Ex.P.7 Inquest, Ex.P.8 Dead body Acknowledgment Letter, Ex.P.9 Death Report, Ex.P.10 Requisition Letter, Ex.P.11 PM Report and Ex.P.12 Driving Licence relating to Tasneem, which clearly disclosed that, at the time of accident, the deceased was having a valid and effective driving licence to ride two wheeler and the entire negligence is on the part of the driver of the offending Lorry bearing Registration No.KA-42-239 in the commission of the said road traffic accident, which dashed to the Activa Honda on its behind, wherein, the deceased was proceeding and if the driver of the offending Lorry could have taken a little care while driving the offending Lorry at the time of accident, he could have avoided the said road traffic accident and could have saved the valuable life of the said deceased, who was a wife of the Petitioner No.1 and the mother of the Petitioners No.2 and 3 and there is no contributory negligence on the part of the deceased in the commission of the said road traffic accident, which is clear from the following discussion. Furthermore, the P.W.1 has clearly stated in his cross-examination that, he has acquainted with the accidental road. He has further stated that, he does not know that, who has lodged the complaint before the Police in respect of the accident in question. Further, no question or suggestion put to P.W.1 by the Respondent No.2 during the course of cross- examination, in respect of the accident in question. More so, the R.W.1 in her cross-examination has clearly stated that, the Police SCCH-7 15 M.V.C.No.2723/2015 have not filed a charge sheet as against the deceased. Further in support to oral evidence of R.W.1 as narrated above, the Respondent No.2 has not produced any investigation report submitted by its Investigator. In this regard, the R.W.1 in her cross-examination has clearly stated that, he has not produced the Investigating Report submitted by their Inspector.
15. The contents of Ex.P.1 FIR and Ex.P.2 Complaint clearly disclosed that, the Police Head Constable, who was on duty on the place of the accident, has lodged Ex.P.2 Complaint before the Jayanagar Traffic Police as against the driver of the offending Lorry bearing Registration No.KA-42-239 by alleging that, on 06.06.2015 at 4.00 p.m., when he was on patrolling duty at 1st Cross Junction, 24th Main Road, J.P. Nagar 22nd Phase, at that place, so many persons were gathered and when he saw, he came to know that, a woman aged about 44 years fell down and her head is completely crushed and when he enquired the public, they informed him that, five minutes before, the said woman was proceeding on her Activa Honda bearing Registration No.KA-05-H- 4814 from Raghavendra Matt and at that time, the Lorry bearing Registration No.KA-42-239, which was stationed on the accidental spot was proceeding on her behind with very high speed, rash and negligent manner and dashed to the said Scooter and due to the said impact, she fell down along with her vehicle and though they shouted to stop the Lorry, the Lorry driver negligently moved the Lorry further and due to which, the back left wheel of the said Lorry ran over her head and due to which, her head crushed and she died and the driver of the said Lorry by stopping the Lorry fled SCCH-7 16 M.V.C.No.2723/2015 away from the accidental spot and he has given the said information to his Officer and on verification of the driving licence, which is with the dead body of the said woman, he came to know that, her name is Tasneem W/o. Quaid Johar, 44 years and he has shifted the dead body to KIMS Hospital through goods Auto and he shifted the offending Lorry to the Police Station and as such, he prayed to take necessary legal action as against the driver of the offending Lorry by searching him and based on Ex.P.2 Complaint, the said Police have registered a criminal case as against the offending Lorry bearing Registration No.KA-42-239 for the offences punishable under Section 279 and 304(A) of IPC and Section 134(a) and (b) of IMV Act under their Crime No.45/2015. It is also clear from the contents of Ex.P.1 FIR and Ex.P.2 Complaint that, there is no delay as such in lodging the said complaint in respect of the accident in question, which caused to the deceased.
16. The contents of Ex.P.3 and Ex.R.2 Spot Hand Sketch, Ex.P.4 Spot Panchanama and Ex.P.5 MVI Report further clearly disclosed that, at the time of accident, the deceased was riding her Activa Honda bearing Registration No.KA-05-HE-4814 on the accidental road straight away and the offending Lorry bearing Registration No.KA-42-239 came behind the said Activa Honda on its right side and took it on left side and dashed to the said Activa Honda and the said accidental road was two ways road, wherein, there is road median and there is sufficient place was available to the driver of the offending Lorry to drove it on straight or to take it on right side, but, he negligently took the offending Lorry to the SCCH-7 17 M.V.C.No.2723/2015 left side and dashed to the Activa Honda, wherein, the deceased was proceeding on straight road without any deviation and as such, the entire negligence is on the part of the offending Lorry and there was no negligence on the part of the deceased in riding her Activa Honda and if the driver of the offending Lorry could have taken a little care while driving the said Lorry, he could have avoided the said road traffic accident, which caused to the deceased without her any fault. The damages caused to the Activa Honda and offending Lorry are clearly shown in Ex.P.5 MVI Report, which clearly disclosed about the terrific impact of the said road traffic accident. It is also clearly mentioned in Ex.P.5 MVI Report that, the said accident was not occurred due to any mechanical defects of the said vehicle.
17. The contents of Ex.P.7 Inquest, Ex.P.8 Dead Body Acknowledgment Letter, Ex.P.9 Death Report, Ex.P.10 Requisition Letter and Ex.P.11 Post Mortem Report further clearly disclosed that, the deceased died due to the accidental injuries, i.e., crush injuries on her head, on the accidental spot itself. It is also clearly mentioned in Ex.P.11 Post Mortem Report that, the death is due to severe head injury sustained.
18. The contents of Ex.P.12 Driving Licence relating to the deceased further clearly disclosed that, at the time of accident, the deceased having a valid and effective driving licence to ride Activa Honda, wherein, she was proceeding at the time of accident.
SCCH-7 18 M.V.C.No.2723/201519. The contents of Ex.P.6 Charge Sheet further clearly disclosed that, since during the course of investigation, it is found that, due to very high speed, rash and negligent manner of driving of the Lorry bearing Registration No.KA-42-239 by its driver itself, the said road traffic accident was taken place on 06.06.2015 at 3.55 p.m. on the 1st Cross Road Junction, J.P. Nagar IInd Phase, wherein, the heavy goods vehicles are prohibited for plying on the said road and the said offending Lorry came from Northern side towards Southern side negligently and dashed to Activa Honda bearing Registration No.KA-05-HE-4814, which was proceeding correctly on the said road from Northern side towards Southern side and due to which, the deceased Smt. Tasneem W/o. Quaid Johar, 44 years, fell down along with the Activa Honda and the said Activa Honda fell down on the left side of the road and the said deceased fell down on the right side of the road and though the public, who were present on the accidental spot have shouted to stop the Lorry, the driver negligently driving it further and due to which, the left back wheel of the offending Lorry ran over on the head of the deceased and due to which, she died on the accidental spot itself and the driver of the offending Lorry fled away from the accidental spot and as such, after thorough investigation, the Investigating Officer has filed a charge sheet as against the driver of the offending Lorry for the offences punishable under Section 279and 304(A) of IPC and Section 134(a) and (b) R/w Section 187, 115 and 177 of IMV Act. There is no allegation leveled by the Investigating Officer in Ex.P.6 Charge Sheet as against the deceased about her negligence in the commission of the said road traffic accident.
SCCH-7 19 M.V.C.No.2723/201520. From the above said material evidence, both oral and documentary, it is clearly proved that, due to very high speed, rash and negligent manner of driving of the offending Lorry bearing Registration No.KA-42-239 by its driver itself, the said road traffic accident was taken place, which dashed to the Activa Honda bearing Registration No.KA-05-HE-4814, wherein, the deceased was proceeding on the right way and due to the said impact, she fell down along with Activa Honda and the driver of the offending Lorry further negligently driving it and due to which, the back left wheel of the said Lorry ran over on the head of the deceased and due to the said impact, she died on the accidental spot itself and the said offending Lorry bearing Registration No.KA-42-239 as well as its driver are very much involved in the said road traffic accident. Accordingly, I answered Issue No.2 in the Affirmative.
21. ISSUE NO.3 :- The P.W.1 has stated that, prior to the date of accident, his deceased wife was hale and healthy and aged about 44 years. The Petitioners have produced Ex.P.12 Driving Licence and Ex.P.13 Election Identity Card relating to the deceased, which disclosed that, the date of birth of the deceased is on 14.07.1971. The date of accident is on 06.06.2016. On perusal of the said dates, it appears that, at the time of accident, the deceased was 44 years. Hence, the age of the deceased is considered as 44 years at the time of accident.
22. The P.W.1 has stated that, his deceased wife was Entrepreneur, earning a sum of Rupees 4,50,000/- per annum SCCH-7 20 M.V.C.No.2723/2015 and was paying income tax and with the said earnings, his deceased wife was maintaining them. The Petitioners have produced Ex.P.16 Income Tax Returns for the Assessment Year 2013-2014, Ex.P.17 Income Tax Returns for the Assessment Year 2014-2015 and Ex.P.18 Income Tax Returns for the Assessment Year 2015-2016, Ex.P.20 Value Added Tax Registration Certificate dated 23.12.2010, Ex.P.21 CST, TDS-Annexure dated 23.12.2010 and Ex.P.22 Form No.4.
23. On perusal of the contents of Ex.P.16 Income Tax Returns for the Assessment Year 2013-2014, it appears that, the Gross Income of the deceased was Rupees 3,28,586/- and total income is of Rupees 3,38,590/- and the deceased has paid income tax of Rupees 14,520/-. On perusal of Ex.P.17 Income Tax Returns for the Assessment Year 2014- 2015, it appears that, the gross income is of Rupees 4,04,039/- and the total income is of Rupees 3,56,040/- and the deceased has paid income tax of Rupees 15,930/-. The contents of Ex.P.18 Income Tax Returns for the Assessment Year 2015-2016 discloses that, the gross income is of Rupees 4,92,311/- and total income is of Rupees 3,98,460/- and the deceased had paid income tax of Rupees 14,640/-. From this, it appears that, every year, the income of the deceased was increased from 2013-2016, which includes the date of accident. It is also clear from the contents of Ex.P.16 to Ex.P.18 and Ex.P.20 to Ex.P.22 that, at the time of accident, the deceased was a Proprietor of Johar Enterprises, which is running at No.19, 4th Cross, Lalbagh Road, K.S. Garden, Bangalore.
SCCH-7 21 M.V.C.No.2723/201524. From the said material evidence, it is made crystal clear that, the total income of the deceased during 2013-2016, i.e., three Assessment years is of Rupees 10,83,090/- i.e., for a period of 3 years. If the said income is taken into for consideration, the annual income of the deceased was of Rupees 3,61,030/- p.a., and it is Rupees 30,085-83 per month. To deny or to discard the same, nothing is available on record on behalf of the Respondent No.2, as, though the R.W.1 in her examination-in-chief has stated that, it is gathered from the Investigator that, the Petitioner No.1 was running his business in the name of his wife and his wife was never doing any business in her life time, to consider the same, no acceptable material evidence is produced by the Respondent No.2 except the said oral version of R.W.1. Therefore, based on the said oral evidence of P.W.1, coupled with the contents of Ex.P.16, Ex.P.17, Ex.P.18 and Ex.P.20 to Ex.P.22, it can be safely held that, at the time of accident, the deceased was a Proprietor of Johar Enterprises and her average income was of Rupees 30,085- 83 per month.
25. The P.W.1 has stated that, with the earnings, his deceased wife was maintaining them since his deceased wife was only earning member in the family and due to untimely death of his wife, their life has become dark, miserable and depressed and put to great financial hardship without any earning member in the family. He has further stated that, he being the husband of the deceased has lost love and affectionate and care taker wife and the Petitioners No. 2 and 3 being the unemployed and unmarried daughter and son respectively, have lost love and affectionate and SCCH-7 22 M.V.C.No.2723/2015 care taker mother and his parents and his wife parents also lost love, affectionate and caring daughter-in-law and daughter respectively.
26. While answering Issue No.1, this Tribunal has already observed and come to the conclusion that, all the Petitioners are the legal representatives of the deceased, but, they cannot be considered as the dependants upon the deceased. While answering Issue No.2, this Tribunal has already observed and come to the conclusion that, due to the accidental injuries itself, the deceased succumbed in the accidental spot itself and the said accident was taken place to the deceased due to the negligent act of driving of the offending Lorry bearing Registration No.KA-42- 239 by its driver itself. Hence, the Petitioners being the legal representatives of the deceased are entitled for compensation.
27. No doubt, while discussing above, this Tribunal has already observed and come to the conclusion that, the average income of the deceased was of Rupees 30,085-83 per month as on the date of accident. But, the Petitioners are not entitled for compensation under the head loss of dependency, as, this Tribunal has already observed and come to the conclusion while answering Issue No.1 that, since the Petitioner No.1 is a husband, the Petitioner No.2 is a major unmarried daughter and the Petitioner No.3 is a major unmarried son, they cannot be considered as the dependants upon the said deceased. Further, the P.W.1, who is the husband of the deceased, has clearly stated in his cross-examination that, the said Johar Enterprises, which SCCH-7 23 M.V.C.No.2723/2015 was running in the name of the deceased is also running till today and Ex.P.20 is not yet cancelled till today and after the death of his wife, Johar Enterprises is transferred in his name. He has further clearly admitted that, whatever the nature of the business was doing by him in the name of his deceased wife has been running by him by changing it in his name till today and he is been doing the said business in a rented premises and Balakrishna is the owner of the said rented shop premises and he has rental agreement in respect of the said shop premises and now, he is paying Rupees 15,000/- per month as rental to the said Balakrishna and during last year, he has paid Rupees 13,000/- to 14,000/- per month. He has further clearly stated that, earlier, he was an Income Tax Assessee and even this year, he is paying Income Tax and now, he cannot say what is the income shown in the Income Tax Return and he has pan number. From the said evidence of P.W.1, it is further made crystal clear that, even though, the deceased died in the road traffic accident, the Petitioner No.1, who is a husband of the deceased, has been doing the same business and getting income regularly without any deficit. Further, it is not the case of the Petitioners that, before the accident, the Petitioner No.1, who is a husband of the deceased was doing other business or other job. Further, the R.W.1 in his examination-in-chief has clearly stated that, the Petitioner No.1 has continued his business getting increased income till now and the question of monetary loss of dependency due to his wife's death does not arise at all. Under such circumstances, the Petitioners are not entitled for compensation under loss of dependency in view of death of the deceased Tasneem.
SCCH-7 24 M.V.C.No.2723/201528. However, the Petitioner No.1 is a husband, the Petitioner No.2 is a major unmarried daughter and the Petitioner No.3 is a major unmarried son and they are the legal representatives of the said deceased and they have lost their care taker beloved family member, the Petitioners are entitled for compensation under the following heads.
29. As per the principles laid down in the decision reported in 2013 ACJ 1403 (Rajesh and Others V/s. Rajbir Singh and Others), loss of consortium to the Petitioner No.1, who is a husband of the deceased, should be Rupees 1,00,000/-, loss of love and affection has to be compensated by awarding Rupees 25,000/- and funeral expenses should be Rupees 25,000/-. As this Tribunal has already observed that, the Petitioner No.1 is a husband, the Petitioner No.2 is a major unmarried daughter and the Petitioner No.3 is a major unmarried son of the deceased. Hence, the Petitioner No.1 is entitled for a sum of Rupees 1,00,000/- towards Loss of consortium and all the Petitioners are entitled for a sum of Rupees 25,000/- towards loss of love and affection and Rupees 25,000/- towards funeral expenses.
30. The P.W.1 has stated that, immediately after the accident, his deceased wife was shifted to KIMS Hospital, Bangalore, wherein, postmortem examination was conducted and handed over the dead body with them and they have shifted the dead body to their residence by hiring the vehicle and conducted funeral and obsequies ceremonies, for which, he has spent more SCCH-7 25 M.V.C.No.2723/2015 than Rupees 1,50,000/-. In this regard, the Petitioners have not produced any scrap of paper.
31. In the absence of the material documents, it is just, proper and necessary to award a sum of Rupees 5,000/- towards transportation expenses of the dead body of deceased and Rupees 60,000/- towards loss of estate. Hence, the Petitioners are entitled for Rupees 5,000/- towards transportation expenses of the dead body of the deceased and Rupees 60,000/- towards loss of estate.
32. In this way, the Petitioners are entitled for the following amount of compensation:-
Sl.No. Compensation heads Compensation amount
1. Loss of consortium Rs. 1,00,000-00
2. Funeral Expenses Rs. 25,000-00
3. Loss of Love and affection Rs. 25,000-00
4. Loss of Estate Rs. 60,000-00
5. Transportation of dead body Rs. 5,000-00 TOTAL Rs. 2,15,000-00
33. In all, the Petitioners are entitled for total compensation of Rupees 2,15,000/- along with interest at the rate of 9% per annum on the above said sum from the date of petition till payment.
SCCH-7 26 M.V.C.No.2723/201534. The P.W.1 has stated that, the Respondent No.1 being the R.C. Owner and the Respondent No.2 being the Insurer of the said Lorry bearing Registration No.KA-42-239 caused the accident, the policy was in force as on the date of accident and hence, the Respondents are jointly and severally liable to pay the compensation to them under all heads, including general and special damages.
35. While answering Issue No.2, this Tribunal has already come to the conclusion that, due to very high speed, rash and negligent manner of driving of the offending Lorry bearing Registration No.KA-42-239 by its driver itself, the said road traffic accident was taken place, which dashed to Activa Honda bearing Registration No.KA-05-HE-4814, wherein, the deceased Tasneem was proceeding on the right way and due to the said impact, she fell down along with Activa Honda and the driver of the offending Lorry further negligently driving it and due to which, the back left wheel of the said Lorry ran over on the head of the deceased and due to the said impact, she died on the accidental spot itself and the said offending Lorry bearing Registration No.KA-42-239 as well as its driver are very much involved in the said road traffic accident.
36. The Petitioners in the cause title of the petition have clearly mentioned that. the Respondent No.1 is a R.C, Owner and the Respondent No.2 was an Insurer of the offending Lorry bearing Registration No.KA-42-239 and its Policy No.10003/31/16/015836, valid from 07.04.2015 to 06.04.2016.
SCCH-7 27 M.V.C.No.2723/2015The Respondent No.2 in its written statement has clearly admitted that, it is the insurer of the Lorry bearing Registration No.KA-42- 239 and the liability of it, is subject to the terms and conditions of the policy of insurance, provisions of the M.V. Act and valid and effective driving licence held by the driver of Lorry as on the date of accident. The R.W.1, who is the Legal Officer of the Respondent No.2 has clearly stated in her examination-in-chief that, the Respondent No.2 is the insurer of Lorry bearing Registration No.KA-42-239 and the liability of the Respondent No.2 is subject to the terms and conditions of the policy of insurance, provisions of the M.V. Act and valid and effective driving licence held by the driver of the Lorry as on the date of accident. The Respondent No.2 has also produced Ex.R.1 Insurance Policy. Though the notice was duly served on the Respondent No.1, he was remained absent and hence, he is placed as exparte. The non-appearance of the Respondent No.1 clearly implies that, he has indirectly admitted the entire case made out by the Petitioners as against him in the present petition. From the said material evidence, which is very much available on record, it is made crystal clear that, at the time of accident, the Respondent No.1 was a R.C. Owner and the Respondent No.2 was an Insurer of the offending Lorry bearing Registration No.KA-42-239 and its Insurance Policy was valid, which covers the date of accident. There is no allegation leveled by the Investigating Officer in Ex.P.6 Charge Sheet as against the driver of the offending Lorry bearing Registration No.KA-42-239 that, he was not having a valid and effective driving licence to drive such class of offending Lorry at the time of accident. The violation of the terms and conditions of the admitted SCCH-7 28 M.V.C.No.2723/2015 Insurance Policy by the Respondent No.1 is not proved by the Respondent No.2. Under such circumstances, the Respondent No.1 being the R.C. Owner and the Respondent No.2 being an Insurer of the Lorry bearing Registration No.KA-42-239, are jointly and severally liable to pay the above said compensation and interest to the Petitioners. Since the Respondent No.2 is an Insurer, it shall indemnify the Respondent No.1. In view of the above said reasons, the principles enunciated in the decision cited by the Learned Counsel appearing for the Petitioners are aptly applicable to the present facts and circumstances of the case on hand. Hence, Issue No.3 is answered accordingly.
37. ISSUE NO.4 :- For the aforesaid reasons, I proceed to pass the following, ORDER The petition filed by the Petitioners under Section 166 of the Motor Vehicles Act, 1989, is hereby partly allowed with costs.
The Petitioners are entitled for compensation of Rupees 2,15,000/-
with interest at the rate of 9% p.a. from the date of the petition till the date of payment, from the Respondent No.2.
SCCH-7 29 M.V.C.No.2723/2015The Respondent No.2 shall deposit the said compensation and interest in this Tribunal, within one month from the date of this Order.
The Petitioners shall share the compensation and interest in the ratio of 60:20:20.
\ In the event of deposit of compensation and interest, the entire shares relating to the Petitioners No.1 to 3 shall be released in their favour through account payee cheques, on proper identification.
Advocate's fee is fixed at Rupees 1,000/-.
Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by her, corrected and then, pronounced by me in the open Court on this, the 16th day of September, 2016.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
SCCH-7 30 M.V.C.No.2723/2015ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONERS :-
P.W.1 : Sri. Quaid Johar
2. DOCUMENTS MARKED BY THE PETITIONERS :-
Ex.P.1 : True copy of FIR
Ex.P.2 : True copy of Complaint
Ex.P.3 : True copy of Spot Hand Sketch
Ex.P.4 : True copy of Spot Panchanama
Ex.P.5 : True copy of MVI Report
Ex.P.6 : True copy of Charge Sheet
Ex.P.7 : True copy of Inquest
Ex.P.8 : True copy of Dead body Acknowledgment
Letter
Ex.P.9 : True copy of Death Report
Ex.P.10 : True copy of Requisition Letter
Ex.P.11 : True copy of Postmortem Report
Ex.P.12 : Notarized Xerox copy of D.L. relating to Tasneem Ex.P.13 : Notarized Xerox copy of Election Identity Card relating to Tasneem Ex.P.14 : Notarized Xerox copy of Aadhaar Card relating to Quaid Johar Ex.P.15 : Notarized Xerox copy of Aadhar Card relating to Fatema Ex.P.16 : Income Tax Returns for the Assessment Year 2013-2014 Ex.P.17 : Income Tax Returns for the Assessment Year 2014-2015 Ex.P.18 : Income Tax Returns for the Assessment Year 2015-2016 Ex.P.19 : Notarized Xerox copy of Aadhaar Card relating to Burhanuddin Ex.P.20 : Notarized Xerox copy of Value Added Tax Registration Certificate dated 23.12.2010 Ex.P.21 : Notarized Xerox copy of CST, TDS - Annexure SCCH-7 31 M.V.C.No.2723/2015 dated 23.12.2010 Ex.P.22 : Notarized Xerox copy of Form No.4
3. WITNESSES EXAMINED BY THE RESPONDENT :-
R.W.1 : Smt. Shobha. K.A.
4. DOCUMENTS MARKED BY THE RESPONDENT :-
Ex.R.1 : True copy of Insurance Policy
Ex.R.2 : True copy of Spot Hand Sketch
(INDIRA MAILSWAMY CHETTIYAR)
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.