Bangalore District Court
Mr. S. Sathish Kumar vs G.V.Chandra Shekar on 8 June, 2018
BEFORE THE MOTOR ACCIDENTS CLAIMS
TRIBUNAL & XV ADDL. JUDGE,
Court of Small Causes, Mayo Hall Unit,
Bengaluru.(SCCH- 19)
Dated this the 8th day of June 2018
Present: Sri. DYAVAPPA. S.B.,
B.A., LL.B.,
XV Addl. Small Causes Judge &
XXIII A.C.M.M., Member, M.A.C.T.,
Bengaluru.
MVC. No. 1666 / 2010
Petitioners: 1. Mr. S. Sathish Kumar
Aged about 40 years
S/o G. Somasundaram Pillai
2. Sidharth Sathish
Aged about 11 years
S/o S. Sathish Kumar
Both are R/at No.F-01,
"Vellara Palmyra", No.8, 2nd cross,
Muddamma Garden, Benson town,
Bangalore-46.
Petitioner No.2 being minor
Represented by his father
& Natural Guardian
S.Sathish Kumar, the first
Petitioner herein
(Pleader by Sri R.Krishna Reddy)
-Vs-
2 SCCH - 19
MVC.1666/2010
Respondents: 1. G.V.Chandra Shekar,
Major,
Father's name not know
M/s Sri Vinayaka Motor Service,
No.11/12, A.V. Road,
Bangalore-560 002.
(Owner of the Bus)
2. Royal Sundaram Alliance
Insurance Company ltd,,
No.32, Sovereign, II floor,
Brigade road, Bangalore-25
Registered office Pattular road,
Chennai-600 002
Represented by its Manager.
Policy No.VPV0001774000401
Valid from 12-4-2009 to 11-4-2010
(R1 & R2 by Sri R.S.S. Advocate)
*****
JUDGMENT
The Petitioners have filed this petition U/sec.166 of M.V. Act, 1989 claiming compensation amount of Rs.1,00,00,000/- in a road traffic accident.
2. The brief facts of the case of the Petitioners are as under:
3 SCCH - 19 MVC.1666/2010 According to the Petitioners that on 9-2-2010 at about 8.30 a.m. when the deceased Simi S.Pillai was riding scooter bearing Reg.No.KL-01/X-3564 slowly and cautiously on Old Madras road, when she reached near church, at that time one Bus bearing Reg.No.KA-01/C-6318 driven by its driver in a rash and negligent manner so as to endanger human life, came at high speed and dashed against the deceased's scooter and as a result of the forced impact, deceased fell down and sustained grievous injuries. It is further state that, immediately after the accident, she was shifted to Chinmaya Mission Hospital and during the course of treatment she succumbed to the injuries on the same day. Thereafter the body was shifted to Bowring & Lady Curzon Hospital wherein Post mortem was conducted and thereafter the body was handed over to the Petitioners. It is further stated that, the Petitioners have spent a sum of Rs.50,000/- towards transportation of dead body, funeral and obsequies. It is further stated that, deceased was hale, healthy and aged about 34 years at the time of the accident and she was working as Assistant Manager at Tata Consultancy Services Ltd and earning Rs.70,000/-p.m. and contributing her entire 4 SCCH - 19 MVC.1666/2010 income for maintenance of the family. It is further stated that, this accident occurred due to rah and negligent driving of the driver of Indiranagar Traffic police registered a case against the driver of Bus bearing Reg.No.KA-01/C-6318 in crime No.34/2010 for the offence punishable U/sec.279, 304A of IPC. It is further stated that, the respondent No.1 being R.C. owner and Respondent No.2 being Insurer of the Bus bearing Reg.No.KA-01/C-6318, are jointly and severally liable to pay compensation. Hence, the Petitioners prayed to grant compensation.
3. After Service of notice, Respondents No.1 & 2, appeared through their Counsel and filed Written statements.
4. Brief averments of the written statement of Respondent No.1 as under:
Petition is not maintainable either in law or on facts. It is further stated that, the Bus bearing Reg.No.KA-01/C-6318 was not involved in the alleged accident and IMV inspector has stated that no fresh damages to the said bus. It is further stated that, the Petition is to be rejected for non involvement of said
5 SCCH - 19 MVC.1666/2010 bus and hence, he lodged a complaint before jurisdictional Indiranagar Police in Cr.No.262/2010 for the offence punishable U/sec.468 and 420 of IPC. Further, Respondent No.1 and 2 have denied the age, income and occupation of the deceased. Further denied the date, time and place of accident and also relationship of deceased with the Petitioners and denied the expenses incurred towards transportation of dead body, funeral and other expenses. It is further contended that, claim of the petitioners is excessive and exorbitant. Hence, prayed to dismiss the petition with costs.
5. Brief averments of the written statement of Respondent No.2 as under:
Petition is not maintainable either in law or on facts. Further contending that the claim form along with letter stating that, for non involvement of his bus in alleged accident and hence lodged a complaint before jurisdictional Indiranagar Police in Cr.No.262/2010 for the offence punishable U/sec.468 and 420 of IPC. Accordingly, the Respondent no.2 also lodged complaint independently dated 19-4-2010 with Director General of Police, CID , Special and Economic
6 SCCH - 19 MVC.1666/2010 offences, Bangalore to Re-investigate the fraudulent implication of vehicle in the Crime and thereafter sent complaint through letter dated 3-6-10 before Sub Inspector of Police, Indiranagar Police station in this regard. But, they have not denied about issuance of Insurance policy in respect of offending vehicle in favour of Respondent no.1 and restricted its liability to the terms and conditions of the policy. Further, denied the age, income and occupation of the deceased. Further they denied the date, time and place of accident and also relationship of deceased with the Petitioners and denied the expenses incurred towards transportation of dead body, funeral and other expenses. It is further contended that, claim of the petitioners is excessive and exorbitant. Hence, prayed to dismiss the petition with costs.
6. Based on the above pleadings, my Predecessor has framed the following:
ISSUES
1. Whether the Petitioners prove that they are the legal heirs of deceased Simi S.Pillai.?
7 SCCH - 19 MVC.1666/2010
2. Whether the Petitioners prove that the accident arose on 9.2.2010 at about 8.30 a.m. on Old Madras road, near Church, Bangalore, due to the rash and actionable negligence on the part of the driver of the bus bearing Reg.No.KA-01-C-6318 and caused the death of Simi S.Pillai.?
3. Whether the Petitioners are entitled for compensation? If so, how much and from whom?
4. What award/order?
7. In order to prove the case, Five witnesses examined as Pw.1 to Pw.5. They produced in all 36 documents marked as Ex.P1 to 37. On the other hand, Respondent No.1 got examined Driver of the bus as Rw.1 and produced one document as Ex.R1. Further Respondent No.2 side examined 2 witnesses as Rw.2 and 3. They have produced in all 25 documents, marked as Ex.R1 to 25.
8. In this case, this Tribunal already passed the Judgment in the year 2013. After passed the Judgment, both parties have preferred the appeal before the Hon'ble High Court. After considering the submissions of both parties, the Hon'ble High Court 8 SCCH - 19 MVC.1666/2010 was pleased to remand the matter for fresh disposal. Considering the contentions taken by the both parties after remand the matter, this Tribunal has given opportunity to the both parties to adduce any further evidence. After the remand, petitioner side and respondent side examined witnesses and produced some documents.
9. Heard arguments of both side and Perused the materials available on hand.
10. For the following reasons, I given answer to the above Issues as under:-
Issue No.1: In the affirmative. Issue No.2: In the affirmative. Issue No.3: In the Partly Affirmative Issue No.4: As per final order, for the following :
REASONS
11. Issue No.1: The Petitioners No.1 and 2 are claimed that they are Legal representatives of the deceased Smt. Simi.S.Pillai. To prove their relationship with the deceased the Petitioner No.1 has produced one Certificate of Marriage which is marked 9 SCCH - 19 MVC.1666/2010 as Ex.P21. This document clearly disclose that the Petitioner No.1 is the Husband and deceased Smt.Simi.S.Pillai is his wife. Their marriage was held on 5-12-1997. Further he has also produced one Notarized copy of Birth certificate of his son i.e., Petitioner No.2, which is marked as Ex.P25. Which clearly disclose that the Sidharth Satheesh was born on 26-10-1998 and his father name shown as Sri.Satheesh Kumar and Mother name is shown as Simi.S. i.e., deceased herein. So the Petitioners are clearly proved that they are Legal representatives of the deceased Smt. Simi.S.Pillai. The Legal representatives defined Under Sec.11 of Indian Succession Act as under:-
A person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.
Upon going through the oral evidence coupled with the documentary evidence, the petitioners represents the estate of the deceased Under section 166 of Motor Vehicles Act, the Legal representatives are entitled
10 SCCH - 19 MVC.1666/2010 to file an application for compensation, where the death was resulted from the accident. The petitioners have been joined to file this petition for compensation is maintainable. Accordingly I answered Issue No.1 in the Affirmative.
12. Issue No.2 : It is the specific case of the petitioner that, on 09.02.2010 at about 8.30 a.m. the wife of the petitioner No.1 riding her Scooter bearing No.KL-01-X-3564 proceeding on the old Madras road, near church, at that time, the Bus bearing No.KA-01- C-6381 driven by its driver in a rash and negligent manner with high speed and dashed against the deceased Scooter, as a result, the deceased fell down and sustained grievous injuries and succumbed to the injuries in the hospital. Hence they prays for grant the compensation. In the written statement, the respondents have denied the accident and also denied the involvement of the offending vehicle in the accident and there is no any fault of the offending vehicle and falsely implicated the bus.
13. In order to prove the case, the petitioner No.1 Sathish Kumar examined himself as PW.1 and filed 11 SCCH - 19 MVC.1666/2010 affidavit in lieu of chief examination. In his Chief affidavit, he has repeated the averments of the petition and produced the copy of FIR and Spot Mahazar marked as Ex.P.1 and P.2, produced Spot Sketch and two IMV reports are marked as Ex.P.3 to P.5, produced inquest report statement of witnesses are marked as Ex.P.7 to P.10, produced PM report ad copy of Charge sheet are marked as Ex.P.12 and P.13, produced Appointment letter and Confirmation letter marked as Ex.P.14 and 15, produced Salary certificate and January 2010 Pay slips are marked as Ex.P.16 and P.17, produced 2 Form No.18 and P.19, produced copy of Passport and marriage certificate marked as Ex.P.20 and P.21, produced two Degree Certificates are marked as Ex.P.22 and P.23, produced bar counsel certificate and birth certificate are marked as Ex.P.24 and P.25. In the cross-examination, the counsel of the respondent specifically suggested that, the offending vehicle is not involved in the accident and also there is no any fault of the driving of the offending vehicle and only to claim the compensation created and involved the offending vehicle in the case, same is denied. Further the counsel of the respondent nothing has been eliciting about the 12 SCCH - 19 MVC.1666/2010 denial of the accident and also the deceased was sustained accidental injuries in the accident.
14. Petitioner side another one witness Sri. Arjun V. Hoskote examined as PW.2 and he has filed the affidavit in lieu of chief examination. In his chief examination, he has deposed that the deceased Simi S.Pillai was working in their organization since from 2005 as Senior Technical Communicator in Grade-C2 and she was drawing the salary amount of Rs.7,06,566 per annum. In the cross-examination, nothing has been eliciting about denial of the working of the deceased in the Company and drawing of the salary. Another one witness Sri. R. Rajendra was the Traffic Inspector of Indiranagar Police examined as Pw.3. He has deposed about the registering the case with regarding the accident and also deposed that, the said P.S. Simi S.Pillai was died due to the accidental injuries. Further deposed about the conducting the spot mahazar and conducting the inquest of the dead body. Further deposed that, they have seized the offending vehicle and accident was occurred the fault of the driver of the private bus bearing No.KA-01-C- 6318. Further deposed that, the owner of the Bus has 13 SCCH - 19 MVC.1666/2010 given the reply to the police notice and the driver of the Bus was appeared and obtained the bail and also submit the charge sheet against the said driver of the offending vehicle. In the cross-examination, the respondent counsel nothing has been elicited about denial of the accident, but they have only suggested that, there is no any materials to register the case against the driver of the offending vehicle and also the accident was not occurred due to the negligence of the offending vehicle and the said vehicle is not involved in the accident, but same is denied.
15. Another one witness Sri. Rajgopal examined as PW.4 and filed the affidavit in lieu of chief examination. In his chief affidavit, he has deposed that, he was witness to the accident took place. When he was standing opposite to the Church in the old Madras Road, at that time, the deceased was riding the Scooter, proceeding on left side of the road, at that time the Bus bearing No.KA-01-C-6318 driven by its driver rash and negligently with high speed, came from Halasur towards K.R. Puram side and dashed to the Scooter, as a result rider of the Scooter was throughout and sustained grievous injuries and the 14 SCCH - 19 MVC.1666/2010 driver of the Bus without stopping speed away from the spot and he was noted the number of the Bus. Thereafter, himself and other passers were shifted the injured to hospital for treatment. Subsequently, he came to know the injured succumbed to the injuries in the hospital. In the cross-examination, the respondent counsel nothing has been elicited about the accident and only to suggested that, he is not the witness to the accident and the offending vehicle is not involved in the accident and also he has given the false evidence to help of the deceased family, but same is denied. Another one witness Sri. Sanjay Pillai is examined as PW.5 and filed the affidavit in lieu of chief examination. In the affidavit, he has deposed that, the deceased Simi S. Pillai was his sister and also deposed about accident and about lodging of the complaint before the police. In the cross-examination he has admitted that he came to know about the accident through phone call and thereafter he has come to the accident place.
16. The respondent side, driver of the offending vehicle Sri.C.Nagappa examined himself as RW.1 and filed the affidavit in lieu of chief examination. In his 15 SCCH - 19 MVC.1666/2010 chief affidavit, he has deposed that, on 09.02.2010 at about 8.30 AM., he was not met with any accident and also the bus driving by him is not involved in the accident and further in the criminal case registered by Indiranagar Police Station, he was acquitted by the Magistrate Court. Further, he has produced certified copy of the Judgment passed in CC No.378/2010 marked as Ex.R.1. In the cross-examination, he has admitted that, said bus was played as on the date of the accident on the Old Madras Road and he has been Bangalore to Kalasipalya and also admitted that, he has not challenged the complaint and FIR and also the Charge sheet submitted by the I.O. The petitioner counsel suggested that, the accident was occurred due to the rash and negligent driving of the Bus, but same is denied.
17. Another one witness on behalf of the respondent No.2 Smt. Nalini examined as RW.2. She has deposed about the deceased was working as on the date of the accident and the deceased Simi S. Pillai is employed in their Company as learning and Development Section Assistant Manager and also deposed about the office time and also earning of the deceased.
16 SCCH - 19 MVC.1666/2010 Further he has produced technical evolution form and interview evolution sheet, employment application, claim gross salary sheet and letter of employment are marked as Ex.R.2 to R.6, produced Confidential and I.P. Production agreement, Education Certificate, Experience Certificate and Relieved letter, Associated declaration, Deputation Agreement and Joining kid are marked as Ex.R.7 to R.13. Another one witness Sri. Sandeep S.K. is the State Head Legal of the 2nd Respondent Company examined as RW.3 and he has filed the affidavit in lieu of chief examination. In his chief affidavit, he has repeated the averments of the written statement. Further produced the one letter and Motor Claim Form marked as Ex.R.14 and R.15, produced one letter to the DGP and Postal Acknowledgement marked as Ex.R.16 and R.17, Letter of DGP and letter of P.I and Postal Acknowledgement are marked as Ex.R.18 to R.20, produced letter of 2nd Respondent and Postal Acknowledgement marked as Ex.R.21 and R.22, letter of DGP and Letter of 2nd Respondent and Postal Acknowledgment marked as Ex.R.23 to R.25. In the cross-examination, it is admitting that, the Indiranagar Traffic Police have 17 SCCH - 19 MVC.1666/2010 filed the Charge sheet against the driver of the Bus for the act of the rash and negligent driving.
18. The counsel for the petitioner argued that, as on the date of the accident, the offending vehicle was played in the said root and it is admitting by the respondents and also the respondents have not challenged the complaint and also charge sheet submitted by the I.O and also respondents have not denied the accident and the accident was occurred due to the rash and negligent driving of the offending vehicle. The respondent counsel has argued that, in the IMV report, there is no any damages caused to the offending vehicle and also at the time of the accident, the offending vehicle was not in the accident spot and the alleged vehicle is not involved in the accident, in this regard, the insurance company was lodged the complaint. Hence the Insurance Company is not liable to pay the compensation.
19. I have perused the documents produced by the petitioner it appears that the Indiranagar Traffic Police have registered the Criminal case in Crime No.34/2010 against the driver of the one unknown 18 SCCH - 19 MVC.1666/2010 vehicle for the offence punishable U/Sec. 279, 304(A) of IPC and U/Sec. 187 of the IMV Act on the basis of the complaint lodged by the complainant. After submitting the FIR, the police have conducting the spot mahazar and prepared the sketch of the accident took place. After recording the statement of the eye witnesses of the accident, the police have seized the offending vehicle and after inspection conducted by the Motor Vehicle Inspector and received the IMV report and also conducting the inquest of the dead body and received the IMV report and after completion of the investigation, the I.O has submitted the Charge sheet against the driver of the offending vehicle Bus bearing No.KA-01-C-6318 for the offences punishable U/Sec. 279, 304(A) of IPC and Section 187 of IMV Act. The police have alleged that, on 09.02.2010 at about 8.30 AM., when the deceased was riding his two wheel vehicle proceedings on Old Madras road and reached near the Church, at that time, the driver of the Private Bus bearing No.KA-01-C-6318 was drive in a rash and negligent manner with high speed and dashed the right side of the two wheeler, as a result, the rider was fell down and sustained grievous injuries and she was succumbed to the injuries in the hospital.
19 SCCH - 19 MVC.1666/2010
20. The respondents have very strongly opposed the involvement of the vehicle and also denied that the accident was not occurred due to the rash and negligent driving of the offending vehicle. In the evidence of the witnesses, though the respondent counsel has suggested and eliciting with regarding the involvement of the vehicle, but the PW.1 and PW.5 are not the eye witnesses, hence they are not the proper person to say about the accident took place. But in the cross-examination of the I.O i.e., PW.3 has clearly deposed that, as on the date of the accident, they have received the information regarding the accident occurred by one Bus to the two wheeler and after receiving the information, they visited the spot and conducted the mahazar and also seized the vehicle. Further deposed that they have recorded the statement of the eye witness of the accident and after received the information the police confirmed that the accident was occurred by the one Private Bus No.KA- 01-C-6318 and thereafter they have seized the said vehicle and given the notice to the owner of the vehicle and the owner of the vehicle was given the reply with admitting the accident. Further respondent counsel nothing has been elicited about the denial of the 20 SCCH - 19 MVC.1666/2010 accident and also the deceased was succumbed to the accidental injuries.
21. In corroboration of the evidence of the I.O, one witness Pw.4 Sri. Rajgopal was clearly deposed that as on the date of the accident, he was standing near that place and he was saw the accident and also he has clearly deposed that, the bus bearing No.KA-01-C- 6318 driven by its driver in rashly and negligently with high speed, came from Halasur side going towards K.R. Puram and dashed the Scooter rider. Therefore on the basis of the statement of the eye witnesses, the I.O has seized the said offending vehicle. Respondent counsel nothing has been elicited about the denial of the accident. There is no any grounds to suspect and discard the said evidence of the said witnesses with regarding the accident occurred by the offending vehicle. Mere some discrepancies in the cross-examination are not a ground to discard the entire evidence of the said witnesses. On the very next day of the accident, the police have recorded the statement of the said witnesses and seized the said offending vehicle. Even though, after seizing the vehicle and inspection 21 SCCH - 19 MVC.1666/2010 conducted by the IMV Inspector and submitted the Charge sheet against the driver of the said offending vehicle, either owner nor the driver were challenged the said IMV report and Charge sheet submitted by the I.O. Though the driver of the offending vehicle was examined and deposed about he was acquitted in the Criminal case, but mere acquitted in the criminal case is not a ground to dismiss the claim petition. It is pertain note that in a Criminal Case, always the Court comes to the conclusion on beyond reasonable doubt. But here in this case, it is a claim petition, hence the tribunal is always to considered the preponderance of probabilities.
22. It is further pertain note that, as on the date of the accident, the said offending vehicle was played on the said road, it is not denied by the respondents. In case, if the offending vehicle is not involved in the accident and also if the I.O is falsely implicated the said offending vehicle, then why the owner of the vehicle could not challenged the Charge sheet and also why they have could not tried to quash the entire criminal case from the Hon'ble Appellant Courts. Mere, the respondents have lodged the complaint to 22 SCCH - 19 MVC.1666/2010 the Commissioner of Police is not a ground to deny the accident. Though, the Complaint lodged by the Respondent No.2 regarding the falsely implicated the vehicle in the accident in Crime No.262/2010, but in the said case, the police have submitted the 'B' Final report. Therefore mere lodged the complaint by the Insurance Company is not a ground to denial of the involvement of the vehicle in the accident.
23. After perusal of the mahazar and rough sketch, it disclose that, the rider of the two wheeler was proceeding on the left side of the road, at that time, the offending vehicle was came on the backside and dashed the right side of the two wheeler, as a result the rider was fell down and sustained grievous injuries. The respondents have not denied the mahazar and rough sketch of the accident took place. After perusal of the hospital records, it discloses that the deceased was succumbed to the accidental injuries. The respondents have not challenged the Charge sheet and also the other police documents. Therefore in the absence of proper rebutable evidence as against the charge sheet submitted by the I.O. against the driver of the offending vehicle mere the 23 SCCH - 19 MVC.1666/2010 oral evidence of the driver would not sufficient to rebut the case of the Petitioners about the accident took place between the deceased two wheel vehicle and offending vehicle as on the date of the accident. Though the Respondent no.2 has produced so many documents in the evidence but which are not sufficient to rebut the allegations made by the police against the offending vehicle. As contended by the respondents if really the offending vehicle was not involved and the I.O has falsely implicated the offending vehicle, it was for the owner of the vehicle or the insurance company to challenge the investigation and to Quash the charge sheet submitted by the I.O. After perusal of the report submitted by the I.O., the owner of the offending vehicle has not challenged the charge sheet about the involvement of the vehicle in question. Hence, the denial of the involvement of the offending vehicle does not arise. Therefore, after considering the evidence of the eye witness of accident took place and the Police documents, it is clear that when the deceased was riding his Scooty proceeding on the left side of the road, near the Church on Old Madras road, at that time, driver of the offending vehicle had drive in a rash and negligent manner with 24 SCCH - 19 MVC.1666/2010 high speed came from back side and dashed the deceased vehicle. As a result the deceased was fell down and sustained grievous injuries and succumbed to the injuries in the hospital. Hence, I given answer to Issue No.2 in the Affirmative.
24. Issue No.3: The Petitioners claiming compensation amount of Rs.1,00,00,000/- with respect to death of Smt.Simi.S.Pillai, in a road traffic accident. The Petitioners have stated that, due to sudden death of the deceased, they have lost love, affection and companion of the deceased. Further they were undergoing great mental agony, hardship.
25. As per the Petition, deceased is aged about 34 years. They have produced Notarized copy of Passport of the deceased. Which clearly disclose the date of birth of the deceased as 01-08-1974. The Respondents have not denied the said document report with regard to the age of the deceased and there is no any contradiction to disbelieve or suspect the age of the deceased. So the age of the deceased was 36 years at the time of accident. Then the proper multiplier is 15.
25 SCCH - 19 MVC.1666/2010
26. The Petitioners stated that, Prior to the accident deceased was aged about 34 years, and working as Asst.Manager, Technical Communication, Communi- cation Tata Consultancy Services, Bangalore, and getting salary of Rs.70,000/- p.m. and used her entire income for the maintenance of her family. To prove the income and avocation of the deceased the Petitioners have produced Appointment letter marked as Ex.P14, Confirmation letter marked as Ex.P15, Pay slip of the deceased as Ex.P16, Pay slip for the month of Jan-2010 marked as Ex.P17, Two form No.16 marked as Ex.P18 and 19, Two Degree certificates marked as Ex.P22 and 23 and also produced one Bar council certificate marked as Ex.P24.
27. The Petitioners have also examined one witness Sri.Arjun.V.Hoskote as Pw.2 working as Asst.Manager(H.R). In his chief affidavit he deposed that he was working as Asst.Manager (H.R) at M/s Tata Consultancy Services & Center, Whitefield, Bangalore since 4½ years and deceased Simi.S.Pillai was working in the said Organization since 14-11- 2005 as Senior Technical Communicator in Grade-C2 with Associate No.167885. Her annual compensation package/salary was Rs.6,48,408/-and her salary was 26 SCCH - 19 MVC.1666/2010 enhanced to Rs.7,06,566/- (5,54,166 + 1,52,400/-) effect from 29-4-2009. He further stated that, the deceased met with an accident on 9-10-2010 and expired on the same day and if she would have been alive, she could have been entitled for 7% in salary every year and she would have been promoted to higher Post. In support of his evidence, he has produced Appointment letter of the deceased marked as Ex.P26, Compensation letter with revised salary marked as Ex.P27, Form No.16 pertaining to deceased marked as Ex.P28, 6 pay slips of the deceased marked as Ex.P29 to 34.
28. On the other hand, the Respondent No.2 got examined one witness Smt.Nalini, she is H.R.Manager, in her examination in chief affidavit she deposed that deceased as on the date of accident the deceased Smt. Simi Pillai was working as Asst.Manager in their company in Learning and Development Section and deceased was working at Whitefield. She has produced Certified copy of Judgment in CC.No.378/2010 dated 12-12-2011 on the file of MMTC-6, Bangalore, Evaluation form of deceased marked as Ex.R2, Interview evaluation sheet marked as Ex.R3, Employment application form 27 SCCH - 19 MVC.1666/2010 marked as Ex.R4, Gross salary sheet marked as Ex.R5, Offer Letter of the deceased marked as Ex.R6, Confidentiality and IP protection agreement marked as Ex.R7, Certificate issued by University of Kerala marked as Ex.R8, Experience certificate marked as Ex.R9, Relieving letter marked as Ex.R10, Associate Declaration marked as Ex.R11, Deputation agreement marked as Ex.R12, and also produced one Joining report of the deceased marked as Ex.R13.
29. On perusal of letter of Appointment which disclose that the deceased was appointed as Senior Technical Communicator in Grade -C w.e.f.14-11- 2005. On perusal of Pay slip for the month of Jan- 2010 marked as Ex.P17, which disclose that, the deceased was draw the total gross salary of Rs.61,510/-, out of that payment Rs.18,700/- is the basic salary and remaining payment is with regarding the allowances and other miscellaneous. After perusal of Ex.P.17 pay slip for the month of January 2010 disclose the total salary of the deceased was Rs.61,510/- and Net pay was Rs.55,549/-. But, after perusal of the income tax return certificates Ex.P18, which is disclose that the deceased was declared her annual gross total income for the year 2008-2009 for 28 SCCH - 19 MVC.1666/2010 the amount of Rs.6,80,962/- and on perusal of Ex.19 and Ex.P28 which disclose that the deceased declared her total income in the year 2009-2010 for an amount of Rs.3,88,588/-. Further it is pertain to note that after perusal of the pay slips which disclose that the payment of the deceased in every month is variations. The Respondents have not denied the income tax assessment and Pay slips. Therefore considering the declared total annual income in the income tax return form for the year 2009-10 it is clear that, the deceased was one of the Income tax payer and she was the Technical Communicator. The Respondents have not denied the Qualification certificates of the deceased. In the cross examination the counsel of the Respondents nothing has been eliciting about the denial of the appointment of the deceased in the Asst. Manager, Technical Communication, Communication Tata Consultancy Services, Bangalore.
30. The counsel for the Respondent argued that, the deceased company was paid the compensation amount to the legal heirs of the deceased as full and final settlement. Hence, same is to be deducted in the compensation amount. The counsel for the Petitioner 29 SCCH - 19 MVC.1666/2010 has argued that the amount received by the claimants under the group insurance policy and also full and final settlement amount paid by the company, can not be deducted from the compensation payable under the Motor Vehicles Act. In support of their argument, they have relied the Judgment of Hon'ble Supreme Court of India in the case of Vimala Kanwar and others V/s Kishore Dan and others, reported in 2013 ACJ 144, in which it is held that:-
Quantum deductions: Provident fund, pension and insurance - Whether amount received under Provident Fund, pension and insurance are pecuniary advantage within the periphery of M.V. Act and are liable for deduction - held: No. Quantum - Deductions - Compassionate employment - whether amount received as salary on compassionate employment of any dependent of the deceased is liable for deduction while determining compensation under M.V. Act - Held : No. Compassionate appointment cannot be termed as pecuniary advantage.
Quantum - deductions - Income Tax - Whether Income tax is liable to be deducted while determining compensation under M.V. Act
- Held : Yes. Starting point for calculating compensation is generally the actual income of the deceased less income tax.
30 SCCH - 19 MVC.1666/2010
31. Further the Petitioner's counsel relied the another judgment of Hon'ble Supreme Court of India, in the case of National Ins. Co. ltd., V/s Rekha Ben and others, reported in 2017 ACJ 2051, in which it is held that:-
Quantum - deductions - Employment on compassionate ground - whether amount of salary earned by claimants from compassionate employment given by employer of the deceased / permanently disabled injured to any dependent can be deducted from the quantum of compensation receivable by them under M.V. Act - Held :
No : Loss of income would not be set off. Because of claimants earning their living: Source from which compensation on account of accident is claimed and the source from which compassionate employment is offered is completely separate and there is no correlation between these two sources.
32. Further the Petitioner's counsel relied the Judgment of Hon'ble High Court of Karnataka, Bengaluru in the case of Rajeshwari .G. Bhuyar & others, V/s Sindhu Travels and another, in which it is held that:-
"It is abundantly clear that any amount received by claimants towards provident fund, pension and life insurance on account of victim's death is not liable for deduction from out of the compensation computed under the M.V. Act."
31 SCCH - 19 MVC.1666/2010
33. In the Judgment of Hon'ble Supreme Court of India in the case of Manasvi Jain V/s Delhi Transport Corporation and others., reported in 2014 ACJ 1416, in which it is held that, Quantum - Deductions - Deductions on account of GPF, House Rent, Insurance Premium, etc are admissible for computing net income of the deceased for the purpose of assessment of dependency of the claimants - Held : No : Deduction towards income tax / Surcharge should be considered to arrive at net income of the deceased.
34. Further, in the Judgment of H'onble High court of Punjab and Hariyana, in the case of Noorddin & another, V/s Mohammed Haroon & others, reported in 2017 ACJ 1158, in which it is held that, Quantum - Deductions - Life Insurance - Tribunal deducted Rs.1,00,000/- received by claimants on account of death of their son Rajiv Gandhi Bima Yojna and awarded compensation - Whether the Insurance amount received by the claimants is to be taken into consideration while assessing compensation - Held : No : Insurance Company cannot get its liability reduced because the deceased's family is entitled to financial assistance from an alternative source. It is accruing only by reason of the death of the deceased and not because he died in a Motor Accident.
32 SCCH - 19 MVC.1666/2010
35. Therefore, in view of observation made by the Hon'ble Supreme Court of India and Hon'ble High courts in the above cited Judgments this tribunal is not deducted any group Accident insurance claim amount and also not deducting any full and final settlement amount paid by the company. Though the Respondents have denied the said income tax return form, but for the purpose of disproving the said income tax payable on the total income by the deceased, the Respondents have not produced any documents. After perusal of the appointment Order and also pay slips of the deceased given by the company it is clear that the deceased was working as the Asst.Manager, Technical Communication, Communication Tata Consultancy Services, Bangalore, and drawn the salary of Rs.70,000/- p.m. There are no any contradictions to disbelieve and suspected the said income tax return forms. In the tax return form the deceased was paid the tax amount of Rs.27,715/-. Under such circumstances, considering the income tax returns and also pay slip of the deceased, this tribunal has taken into consideration reasonable income of the deceased at Rs.3,60,873/- per year. After deducting the income 33 SCCH - 19 MVC.1666/2010 tax amount of Rs.27,715/- in the total income of the deceased i.e., Rs.,3,88,588/- this tribunal has taken the income of the deceased at Rs.3,60,873/- p.a.
36. With regard to the loss of future prospectus is concern, the Apex court in the earlier Judgment reported in 2013 ACJ 1403 (Rajesh & Ors Vs Rajbir Singh & Ors) also taken note of the fact that, self employed persons are also entitled for future prospectus and the said Judgment was referred to larger bench and the Apex court in the recent judgment passed in 2017 ACJ 2700 SC in the case of National Ins., com. Ltd., V/.s Pranay sethi and others, held that, "In case the deceased was self employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 year. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years, should be regarded as the necessary method of computation. The established income means the income minus the tax component"
Here the deceased was aged about 36 years, hence the Petitioners are entitled for future prospectus.
34 SCCH - 19 MVC.1666/2010
37. It is pertinent to note that, the 1st Petitioner is the Husband and Petitioner No.2 is the Son of the deceased. Here, the Petitioner No.1 in his cross examination clearly admitted that, "He is doing business along with his father and earning a sum of Rs.50,000/- p.m." Hence, the Petitioner No.1 is not considered as dependant on the income of the deceased. Further the Petitioner no.2 being Minor son of the deceased is only considered as a dependant on the income of the deceased. So, relying upon the decision reported in 2009 ACJ 1298 (Sarla Varma and others - Vs- Delhi Transport Corporation & another), out of the salary of the deceased 1/3rd has to be deducted towards the personal expenses of the deceased.
a) Income of deceased is taken at Rs.3,60,873/- p.a.
b) 40% of future prospectus added to the income of deceased: 3,60,873/- + 1,44,349/- = Rs.5,05,222/-.
c) Deduction towards personal expenses; Rs.5,05,222/- - Rs.1,68,407/- (1/3rd)= Rs.3,36,815/- p.a. 35 SCCH - 19 MVC.1666/2010 Therefore this tribunal has taken income of the deceased at Rs.3,36,815/- p.a. Which comes as under:-
Rs.3,36,815/- X 15 = Rs.50,52,225/-
Hence, the Petitioners entitled for compensation of Rs.50,52,225/- under the head loss of dependency.
38. Here the Petitioner No.1 being Husband of the deceased, he has lost his Wife, at age of age of 40 years. Regarding consortium, this tribunal has relied upon the decision reported in 2013 ACJ 1403, in which it is held as, "Words and phrases - Consortium -
Consortium is the right of spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate".
Hence, it is not possible to compensate the love and affection of the deceased with the Petitioner No.1 by compensate any quantum of amount. In this regard, the Hon'ble Supreme Court of India passed in 2017 ACJ 2700 SC (between National Insurance Co. ltd., v/s Pranay Sethi and others.,) held that, 36 SCCH - 19 MVC.1666/2010 Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively.
Therefore, in view of the Judgment of Hon'ble Supreme Court of India, and by considering the lost of love, affection and care from his Wife, this tribunal has award the reasonable compensation of Rs.40,000/- under the head loss of consortium.
39. Here the Petitioner No.1 is the Husband, and Petitioner No.2 is the Minor son of the deceased. They have lost love, affection and future support of the deceased. Hence, the Petitioner No.1 and 2 are entitled for an amount of Rs.30,000/- each. In total the Petitioners are entitled for Rs.60,000/- under the head loss of love and affection,
40. The Petitioners claiming that, they have spent Rs.50,000/- towards transportation of dead body, funeral and obsequies ceremonies of the deceased. But they have not produced any document in this respect. Considering the expenses towards funeral and obsequies ceremonies of the deceased and in view of judgment of Hon'ble Apex Court passed in 2017 37 SCCH - 19 MVC.1666/2010 ACJ 2700 SC (between National Insurance Co. ltd., V/s Pranay Sethi and others.,) it is just and proper to award a Rs.15,000/- under this head. Further the Petitioners are also entitled for compensation of Rs.15,000/- under the head loss of estate.
41. Considering oral evidence coupled with documentary evidence of Pw.1, it is just and proper to grant compensation as follows:
Sl.
Particulars Amount
No.
1. Loss of dependency Rs. 50,52,225-00
2. Loss of consortium Rs. 40,000-00
3. Towards Love and affection Rs. 60,000-00
4. Towards funeral and Rs. 15,000-00
obsequies ceremonies
5. Towards loss of estate Rs. 15,000-00
Total Rs. 51,82,225-00
The Petitioners are entitled for total
compensation of Rs.51,82,225/-.
42. Interest:
Hon'ble Supreme Court in Civil Appeal
No.3238/2015 (arising out of SLP (C) 1865/2014 38 SCCH - 19 MVC.1666/2010 (Chanderi Devi and Anr., Vs. Jaspalsingh & Ors.,) and 2013 AIR SCW 5375 (Minu Rout & Ors vs Sathya Pradyumna Mohapatra & Ors), (2011) 4 SCC 481:
(AIR 2012 SC 100) (Muncipal council of Delhi Vs Association of Victims of Uphaar Tragidy and Hon'ble High Court in MFA No.2326/2016 (Annapurna & Ors., G.Ashawathraya & Anr.,) have held that rate of interest shall be @9% p.a., from the date of application till the date of payment. Hence, I hold that the petitioner is entitled for interest @9% p.a., from the date of petition till the date of payment. In view of settled rate of interest, 9% is justified and not on higher side. Accordingly the petitioner is entitled to interest @ 9% pa.,
43. Liability:-
As already observed above, Respondent No.1 is the owner and Respondent No.2 is the Insurer of the Bus bearing Reg.No.KA-01/C-6318. Respondent No.2 admitted about issuing of Insurance Policy in respect of Bus bearing Reg.No.KA-01/C-6318 and same was in force as on the date of the accident. Though the Respondents taken contention that, the offending vehicle did not involved in the accident, the 39 SCCH - 19 MVC.1666/2010 Respondents have not challenged the Charge sheet and also police documents submitted against the driver of offending vehicle. As already observed in the Issue No.2, this Tribunal opined that the accident occurred due to the rash and negligent driving of the driver of Bus bearing Reg.No.KA-01/C-6318.
Accordingly, Respondent No.1 and 2 are jointly and severally liable to pay the compensation with interest to the Petitioners. Further, the Respondent No.2 is primarily held liable to pay the compensation to the Petitioners. Hence, I given the answer to the Issue No.3 in the Partly Affirmative.
44. Issue No.4: After having answered Issue No.1 to 3 as supra I hold that, the petition filed by the petitioner is fit to be allowed in Part. In the result, I proceed to pass the following:-
ORDER The claim petition filed under Section 166 of the Motor Vehicles Act is hereby Partly allowed with cost as hereunder.
The Petitioners are entitled for total compensation of Rs.51,82,225/- with interest @ 9% p.a., from the date of petition till its realization.
40 SCCH - 19 MVC.1666/2010 The Respondent No.1 and 2 jointly and severally liable to pay compensation to the Petitioners. Further, Respondent No.2 is directed to deposit the compensation amount together with 9% interest within Sixty days, from the date of this order.
The Petitioner No.1 is entitled for compensation of Rs.10,00,000/- with interest. Further, Petitioner No.2 is entitled for compensation of Rs.41,82,225/- with interest.
After deposit, out of total compensation amount of Rs.5,00,000/- with interest shall be released in favour of the Petitioner No.1 with proper identification and the remaining amount of Rs.5,00,000/- shall be deposited in the name of Petitioner No.1 in FD in any nationalized bank, for a period of Three years, with a liberty to withdraw accrued interest periodically.
After deposit, out of total compensation amount 40% with interest shall be released in favour of the Petitioner No.2 with proper identification and the remaining amount of 60% shall be deposited in the name of Petitioner No.2 in FD in any nationalized bank for a period of Five years (At the time of filing of the Petition, the Petitioner No.2 is aged about 11 years. As on the date of Judgment the Petitioner No.2 is attained majority. Hence, the amount is released in his favour) with a liberty to withdraw accrued interest periodically.
41 SCCH - 19 MVC.1666/2010 Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
(Dictated to the Stenographer transcribed and computerized by her, then corrected by me and then pronounced in open court on this the 8th of June 2018) (DYAVAPPA. S.B.) XV ASCJ & Member, MACT, Court of Small Causes, Mayo Hall Unit, Bengaluru.
ANNEXURES:
List of witnesses examined on behalf of Petitioners:
PW1 : Sri.S.Sathish Kumar PW2 : Sri.Arjun V.Hoskote PW3 : Sri.C.R.Rajendra PW.4 : Sri.Rajagopal PW.5 : Sri.Sanjay Pillai.
List of documents marked on behalf of Petitioners:
Ex.P1 : Copy of FIR
Ex.P2 : Copy of copy of mahazar
Ex.P3 : Copy of spot sketch
Ex.P4 : Copy of IMV report
Ex.P5 : Copy of IMV report
Ex.P6 : Copy of inquest report
Ex.P7-10 : Copy of statement of witnesses
Ex.P11 : Copy of copy of P.M.report
Ex.P12 : Copy of copy of charge sheet
Ex.P13 : Copy of copy of passport
Ex.P14 : Copy of appointment letter
Ex.P15 : Copy of confirmation letter
42 SCCH - 19
MVC.1666/2010
Ex.P16 : Copy of revised salary benefits
Ex.P17 : Copy of salary certificate
Ex.P18-19 : Copy of Form No.16
Ex.P20 : Copy of passport
Ex.P21 : Copy of Certificate of Marriage,
Ex.P22 : Copy of Degree certificate-
Ex.P23 : Copy of Degree certificate
Ex.P24 : Copy of Certificate of enrolment,
Ex.P25 : Copy of Copy of Birth certificate
Ex.P26 : Copy of Letter of Appointment
Ex.P27 : Copy of letter of TCS
Ex.P28 : Copy of Form No.16
Ex.P29-34 : Copy of pay slips
Ex.P35 : Copy of Police record with charge
sheet,
Ex.P36 : Copy of Copy of complaint,
Ex.P37 : Copy of Copy of B report.
List of witnesses examined on behalf of Respondents:
RW.1 : Sri. C.Paramesh RW.2 : Smt.Nalini Rw.3 : Sri.Sandeep S.K.
List of documents marked on behalf of Respondents:
Ex.R1 : Certified copy of the Judgment passed in CC.378/2010, on the file of MMTC - 6, Bengaluru, Ex.R2 : Copy of evolution form, Ex.R3 : Copy of Interview voluation sheet,-
Technical Panel,
Ex.R4 : Copy of Employment form,
Ex.R5 : Copy of Salary slip,
Ex.R6 : Letter of Offer & Terms of employment
43 SCCH - 19
MVC.1666/2010
Ex.R7 : Confidentially and IP protection
Agreement,
Ex.R8 : Degree certificate- Faculty of Arts,
issued by University of Kerala.
Ex.R9 : Copy of Certificate, dated 31-07-2003,
Ex.R10 : Copy of Relieveing Letter, Ex.R11 : Associate Declaration, Ex.R12 : Deputation agreement, Ex.R13 : Joining report, Ex.R14 : Letter dt: 29-4-2010, Ex.R15 : Motor Claim form, Ex.R16 : letter dt: 19-4-2010, Ex.R17 : Postal Acknowledgment, Ex.R18 : ldtter dated 14-5-2010, Ex.R19 : letter dated 03-06-2010, Ex,R20 : Postal Acknowledgment, Ex.R21 : letter dated 30-7-2010, Ex,R22 : Postal Acknowledgment, Ex.R23 : letter dated 12-08-2010, Ex.R24 : letter from 2nd Respondent to Police Commissioner, Ex,R25 : Postal Acknowledgment, (DYAVAPPA. S.B.) XV ASCJ & Member, MACT, Court of Small Causes, Mayo Hall Unit, Bengaluru.