Bangalore District Court
) Smt.Sarojamma vs No.1 By Sri Malleshaiah on 9 June, 2020
1 MVC 8159/2016
BEFORE THE CHIEF JUDGE, COURT OF SMALL CAUSES
AND MEMBER PRL.MOTOR ACCIDENT CLAIMS
TRIBUNAL AT BANGALORE
(S.C.C.H. - 1)
DATED THIS THE 9th DAY OF JUNE 2020
PRESENT : SMT. S. MAHALAXMI NERALE,B.A., L.L.B.(Hons.), L.L.M.,
MEMBER, PRL. M.A.C.T.
M.V.C.No.8159/2016
Petitioners 1) SMT.SAROJAMMA,
W/o.Late Ramakrishna B.N.,
Aged about 45 years,
2) CHELUVARAJU R.,
S/o.Late Ramakrishna B.N.,
Aged about 26 years,
3) GOPALARAJU R.,
S/o.Late Ramakrishna B.N.,
Aged about 22 years,
All are R/at No.65/2,
2nd Main, 2nd Cross,
Kaveripura, Kamakshipalya,
Bangalore - 79.
Represented by Sri B.M.Chandrashekara, Advocate
Vs
Responden 1) MUBARAK PASHA,
ts S/o.Abdul Rowf,
No.70, Dhanaguru,
Malavalli Taluk,
2 MVC 8159/2016
Mandya District.
2)CHOWDAPPA H.M.,
S/o.Madaiah,
Hulikere Village,
Kokkare Bellur Post,
Maddur Taluk, Mandya
District.
3) RELIANCE GENERAL
INSURANCE CO.,
LTD., No.28, 5th Floor,
Centenary Building,
M.G.Road, Bangalore
- 01.
4)REKHA R.,
W/o.Madhu,
D/o.Late Ramakrishna
B.N.,
R/o.Bapujinagara,
Near
Shiva Temple,
Bangalore.
Policy
No.1408552334002028
Policy Period 16.06.2015
to 15.06.2016.
Respondent No.1 by Sri Malleshaiah,
Advocate,
Respondent No.2 Exparte
Respondent No.3 - Sri V.Srihari Naidu,
3 MVC 8159/2016
Advocate
Respondent No.4 - Exparte
JUDGMENT
Invoking the provisions of Section 166 of the Motor Vehicles Act, 1988, the petitioners have claimed compensation of Rs.17,20,000/- for the death of Ramakrishna B.N., in the motor vehicle accident which occurred on 21.11.2015 at about 05.10 am., near HMT Main Road, Opposite to State Bank of Mysore, Mathikere, Benglauru.
2. The brief facts of the case are that:-
On 21.11.2015, at about 05.10 a.m., the deceased Ramakrishna B.N., was crossing the road near HMT Main Road, opposite to State Bank of Mysore, Mathikere carefully and cautiously and at that time, a TATA Ace vehicle No.KA.11/7928 came from Yeshawanthapura side to go towards Mathikere, driven by its driver in a rash and negligent manner so as to endanger human life and safety of others and dashed against the deceased Ramakrishna B.N, due to which, the deceased sustained severe injuries and immediately, he was shifted to M.S.Ramaiah Hospital 4 MVC 8159/2016 and from there, he was shifted to NIMHANS, but he died on the same day at 10.45 pm. The petitioners have spent huge amount for funeral and last rites of the deceased.
3. The petitioners have further contended that at the time of the accident, the deceased was aged 65 years and was working as an Auto Driver and earning about Rs.18,000/- per month. The petitioner No.1 is the wife, the petitioner No.2, 3 and the respondent No.4 are the sons and daughter of the deceased and they have lost the love and affection apart from suffering untold hardship and misery and hence, they have claimed a compensation of Rs.17,20,000/- from the respondents.\
4. It is the contention of the petitioners that the accident has occurred due to the rash and negligent driving of the TATA Ace by its driver and the respondent No.1 is the Owner and the respondent No.3 is the Insurer of the same and both of them are jointly and severally liable to pay the compensation to the petitioners.
5. In response to the Court notice issued on the claim petition, the respondent No.1 and 3 have entered 5 MVC 8159/2016 appearance through their advocates and have filed their statement of objections. The respondent No.2 and 4 have not chosen to appear before the Court and contest the case inspite of service of notice and hence, they have been placed exparte.
6. The gist of the contentions taken by the respondent No.1, in his statement of objections is as under:-
The petition is not maintainable either in law or on facts. The averments in column No.1 to 4, 6 and 7 of the claim petition regarding the name, address, age, occupation and monthly income of the deceased are not within his knowledge and the petitioners are put to strict proof of the same. The averments in column No.8 to 10 of the petition regarding the occurrence of the accident on 21.11.2015 at 5.10 am., involving the TATA Ace Vehicle, while the deceased was crossing the HMT Main Road are contended to be false. It is contended that the TATA Ace vehicle was not at all involved in the accident and the respondent No.1 is not responsible for the accident. The jurisdictional Police have registered a false case against him at the instigation of the petitioners. 6 MVC 8159/2016 The averments in column No.11 to 14 and 19 and 22 of the petition that in the accident the deceased sustained fatal injuries and was shifted to MS Ramaiah Hospital and then to NIMHANS, wherein he succumbed to the injuries and that the petitioners have spent Rs.60,000/- are all denied and the petitioners are put to strict proof of the same. The relationship of the petitioners with the deceased is also denied and the petitioners are put to strict proof of the same. The amount of compensation of Rs.17,20,000/- claimed by the petitioners in column No.21 is quite fanciful and whimsical and the petitioners are not entitled to the same. He is the registered owner of the TATA Ace vehicle No.KA.11/7928 and the same is insured with the respondent No.3 and he was driving the vehicle with valid and effective driving licence and in the event of any liability, the same be fastened on the respondent No.3 and accordingly has prayed to dismiss the petition.
7. The gist of the contentions taken by the respondent No.3 / Insurer of the TATA Ace vehicle is as under:-
The petition is not maintainable either in law or on 7 MVC 8159/2016 facts. The TATA Ace Vehicle No.KA.11/7928 was not at all involved in the accident and the manner of accident as alleged is denied and the petitioners are put to strict proof of the same. The averments in column No.1 to 6 of the petition are not within its knowledge. The averments in column No.8 to 10 of the petition that the alleged accident took place solely due to the rash and negligent driving of the TATA Ace No.KA.11/7928 by its driver is denied as false. The driver of the TATA Ace vehicle has driven the same carefully and cautiously on the correct side of the road and the accident in question has taken place solely due to the carelessness and negligence of the deceased who has darted across the busy road without observing the flow of traffic. Though the TATA Ace vehicle No.KA.11/7928 is insured with it, but its liability is subject to the terms and conditions of the policy and its valid and effective Fitness Certificate and Permit. Without prejudice to the said contention, it is contended that the TATA Ace vehicle No.KA.11/7928 has been driven by its driver without having valid and effective driving licence, in contravention of the policy conditions and the Motor Vehicles Act and the owner of 8 MVC 8159/2016 the TATA Ace vehicle has knowingly allowed the TATA Ace vehicle to be driven by a person who had no valid and effective driving licence and the jurisdictional Police after investigation have filed charge sheet against the driver of the said vehicle for the offence punishable under Section 3(1) read with Section 181 of the MV Act and hence, it is not liable to indemnify the respondent No.1. There is non-compliance of the provisions of Section 134(c) and 158(6) of the MV Act by the respondent No.1 and by the jurisdictional police station. The amount of compensation claimed is highly excessive, arbitrary and disproportionate to the age, income and avocation of the deceased and accordingly, has prayed to dismiss the petition.
8. Based on the above pleadings, the following Issues have been framed:-
1) Whether the petitioners prove that the deceased succumbed to injuries in a motor vehicle accident that occurred on 21.11.2015 at about 05.10 am., near HMT Main Road, opposite to State Bank of Mysore, Mathikere, Bangalore within the jurisdiction of Yeshawanthapura Traffic Police Station on account of rash and negligent driving of the TATA Ace bearing 9 MVC 8159/2016 registration No.KA.11/7928 by its driver?
2) Whether the petitioners are entitled for compensation? If so, how much and from whom?
3) What order?
9. In order to prove their case, the petitioners have examined the Petitioner No1 as PW 1 the Investigating Officer as PW 2 and an eye-witness as PW 3 and 14 documents as per Ex.P.1 to P.14 have been got marked. The respondent No. 3/Insurer has examined its Asst. Manager-Legal as RW 1 and the RTO as RW 2 and has got marked 3 documents as per Ex.R.1 to R.3. The respondent No.1 has examined himself as RW3 and has got marked 5 documents as per Ex.R.5 to R.7.
10. Heard the arguments of the learned counsels for the Petitioners and the respondent No.1 and 3.
11. On the basis of the arguments addressed, the pleadings and the evidence available on record, my findings on the above Points are as under:-
Issue No.1... In the affirmative, Issue No.2... Partly in the affirmative, Issue No.3.... As per final order for the following:-10 MVC 8159/2016
REASONS
12. Point No.1:- The case of the petitioners is that the accident has occurred on account of the rash and negligent driving of the TATA Ace No.KA.11/7928 by its driver. The defense of the respondent No.1 is that the TATA Ace vehicle was not at all involved in the accident and in the alternative, the respondent No.1 and 3 have denied the negligence on the part of the driver of the TATA Ace for the accident.
13. The petitioners in order to substantiate their case have examined the petitioner No.1 as PW 1 who has filed her affidavit evidence in lieu of her examination in chief reiterating the averments of the petition. Apart from her oral evidence, she has produced the FIR and Complaint at Ex.P.1, Police Intimation at Ex.P.2, Spot Mahazar at Ex.P.4, Spot Sketch at Ex.P.5, IMV Report at Ex.P.6 and the Charge Sheet at Ex.P.9. Since, PW 1 is not an eyewitness to the accident, her evidence is not of much help to assess who has been responsible for the accident.
14. The petitioners have examined PW 3, one Ravi Kumar V., an eyewitness to the accident. In his affidavit 11 MVC 8159/2016 evidence filed in lieu of his examination in chief, PW 3 has stated that on 21.11.2015, he was proceeding from Kamakshiplaya to Mathikere to pickup his colleague and when he reached near HMT Main Road opposite to State Bank of Mysore, Mathikere and waiting for his colleague's arrival, at about 5.10 am., the deceased Ramakrishna was crossing the road carefully from North to South and at that time, TATA Ace vehicle No.KA.11/792 driven by its driver in a rash and negligent manner came from M.S.Ramaiah Hospital side and dashed against Ramakrishna and caused grievous injuries and he and the public shifted the injured Ramakrishna to M.S.Ramaiah Hospital and then to NIMHANS, but the injured died on the same day at NIMHANS. He has further stated that one Byrappa B.H., has lodged the complaint on the same day. He showed the place of accident to the police and explained as to how the accident occurred. PW3 has been cross- examined by the learned Counsel for the respondent No.3 and in his cross-examination, PW3 has stated that the distance from the place where he was standing and the place where the accident occurred is about half a 12 MVC 8159/2016 furlong and that the accident has occurred immediately after the median.
15. The respondent No.1, the driver of the TATA Ace vehicle who has examined himself as RW 3 in his affidavit evidence filed in lieu of his examination-in-chief has denied the entire case of the petitioners and has stated that TATA Ace vehicle owned and driven by him was not at all involved in the accident, but the jurisdictional Police have registered a false case against him by creating a story. Though in his cross-examination by the learned counsel for the petitioners, he denied that on the date of accident he was driving the TATA Ace vehicle but again stated that he was the driver of the TATA Ace vehicle, but he did not cause any accident. He admitted that the charge sheet has been filed against him by Yeshwanthapura Police and that he has not contested the said charge sheet and he has not given anything in writing to any authorities stating that his vehicle has not been involved in any accident. On confrontation of Ex.R 2, Sec. 133 Notice and Ex.R3, Reply to Sec.133 Notice, though he admitted his signatures on them but denied having given the reply to 13 MVC 8159/2016 the effect that he was the driver of the Tata Ace vehicle as on the date of accident.
16. The respondent No.3, Insurer of the TATA Ace vehicle has examined it's Asst. Manager Legal as RW 1 and the affidavit evidence filed by him in lieu of his examination-in- chief centers around on the point of the respondent No.1/ driver of the TATA Ace vehicle not holding a valid and effective driving licence to drive the TATA Ace vehicle as on the date of accident and he has not stated/whispered anything regarding who is responsible for the accident.
17. On perusal of the complaint and the FIR at Ex.P.1, it is seen that the accident has occurred on 21.11.2015 at 5.10 a.m. and the complaint has been lodged by one Byrappa B.H., on the same day at 12.40 pm. The Police after receipt of the complaint have registered a criminal case against the driver of the TATA Ace Vehicle and during the course of investigation, the Investigating Officer has conducted the Spot Mahazar as per Ex.P.4 and has prepared the Spot Sketch as per Ex.P.5. He has subjected the TATA Ace vehicle for inspection by the Motor Vehicles Inspector, who has 14 MVC 8159/2016 issued the IMV report as per Ex.p.5. After completion of investigation, the Investigating Officer has filed the charge sheet as per Ex.P.9 against the driver of the TATA Ace Vehicle i.e., against the respondent No.1 / RW1.
18. Even though the respondent No.1 has denied the involvement of his TATA Ace vehicle in the accident, but he has admitted the filing of the charge sheet against him. This fact clearly goes to show the accident having occurred involving the TATA Ace Vehicle and it being driven by the respondent No.1/RW 3.
19. Now, in so far as the negligence is concerned, except denying the involvement of the vehicle in the accident, the respondent No.1 /RW 3 has not at all stated anything regarding the negligence attributed to him for the accident. In this regard, on perusal of the Spot Sketch at Ex.P.5, it shows that the deceased was crossing the HMT Main Road, opposite State Bank of Mysore. The place where the accident has occurred is a diagonal junction, wherein 5 roads meet and the road is 25 feet wide. PW 3 although has stated that the deceased was near the median, but the Spot Sketch at Ex.P.5, shows that the deceased was near the edge of 15 MVC 8159/2016 other side of the road. It is relevant to note that the place of accident as per the contents of the spot mahazar has been shown by the complainant, who admittedly is not an eye-witness. The accident has occurred in the month of November in the early morning at around 5.10 a.m., during which point of time, the visibility would be generally less. In all probability, the said fact has played a major part in the occurrence of the accident as according to PW3, the accident has occurred immediately after the road median. As it was early morning and as the vehicular movement would be generally less, the respondent No.1 has come in a high speed and has dashed against the deceased who was just then attempting to cross the road and the said fact also gets corroborated by Ex.P6, the IMV Report as the said document discloses that the front shape of the Tata Ace vehicle has got damaged on the right side and further its front rear hind screen on the right side has got dented. Hence, the petitioners have proved through oral and documentary evidence that the accident has occurred on account of the rash and negligent driving of the Tata Ace vehicle by the respondent No.1/driver. 16 MVC 8159/2016 Further, Ex.P.3 the Heinous Offence Report of Yeshwanthapura Police Station shows that the deceased who had sustained injuries in the accident, has died in NIMHANS at 10.45 pm., on 21.11.2015. Ex.P. 7 is the Inquest Report and Ex.P.8 is the PM Report of the deceased and the cause of death of the deceased is opined as death due to "Head injury and cervical spinal injury sustained". Thus, the petitioners have proved that the deceased succumbed to the injuries sustained by him in the accident. Hence, Issue No.1 is answered in the affirmative.
20. Point No.2:- It is the case of the petitioners that the deceased Ramakrishna is the husband of the petitioner No.1 and the father of petitioner No.2 and 3 and respondent No.4, he was aged 65 years, was working as Auto Driver and earning Rs.18,000/- per month and maintaining the family.
21. In order to prove their relationship with the deceased, the petitioners have produced the Aadhaar Card of petitioner No.1 and the Election ID Cards of Petitioner No.2 and 3. These documents show the inter se relationship of the deceased with petitioners. The 17 MVC 8159/2016 petitioners though have claimed that the respondent No.4 is the married daughter of the deceased and the petitioner No.1, but no documentary proof has been produced by the petitioners. However, it is relevant to note that the respondent No.1 and 3 have not denied the said fact. Hence, the petitioners have proved theirs and the respondent No.4's relationship with the deceased.
22. To prove the age of the deceased, the petitioners have not produced any acceptable evidence and the Tribunal has to assess his age based on the medical records. On perusal of the Inquest Mahazar at Ex.P7, the age of the deceased is shown as 65 years. In Ex.P.8 the PM Report, the age of the deceased is also shown as 65 years. Further, the Police Intimation at Ex.P.2 shows the age of the deceased as 65 years. Even otherwise, the petitioners themselves have claimed that the deceased was 65 years. Therefore, the age of the deceased is taken as 65 years as on the date of accident.
23. Further, in so far as the case of the petitioners that the deceased was an autorickshaw driver and 18 MVC 8159/2016 earning Rs.18,000/- per month, the petitioners have not produced either his driving licence or any other acceptable evidence, though in the Inquest Mahazar at Ex.P.7, the avocation of the deceased is shown as autorickshaw driver. But since the petitioners have not produced any acceptable evidence to show the avocation and income of the deceased, considering the age of the deceased as 65 years and taking into account the cost of living during the year 2015, in which the accident has occurred, the income of the deceased is notionally taken as Rs.7,000/- per month.
24. Since the deceased was aged 65 years at the time of accident, the question of considering addition of income towards loss of future prospects does not arise as laid down by the Hon'ble Apex Court in National Insurance Company Limited Vs Pranay Sethi and others reported in 2017 ACJ 2700 (SC). In the said case, it has been held that " 40% of the established income should be the warrant where the deceased was below the age of 40 years, 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.'' 19 MVC 8159/2016
25. The petitioner No.1 is the wife and the petitioner No.2 and 3 are the sons of the deceased aged 26 years and 22 years respectively. Nothing has been elicited in the cross-examination of PW1 by the respondent No.1 and 3 that they are gainfully employed and were not dependant on the deceased for their livelihood. The respondent No.4 is the daughter of the deceased and as she is married she is not considered as the dependent member. Hence, in the said facts and circumstances, the petitioners 1 to 3 are alone considered as dependent members on the income of the deceased. Accordingly, 1/4th of the income of the deceased i.e., Rs.1750,/- is deducted towards his personal expenses, had he been alive and the balance 3/4th i.e., Rs.5,250/- is taken as the loss of dependency to the petitioners. Annually the same comes to Rs.63,000/- and the said figure has to be multiplied by 7 multiplier as the deceased was aged 65 years as on the date of accident and if that be so, the total comes to Rs.4,41,000/-. Hence, the petitioners are entitled to the said amount of Rs.4,41,000/- as compensation towards loss of dependency on account of the death of the 20 MVC 8159/2016 deceased .
26. In Pranay Sethi's case referred supra, it is held that a reasonable figure of Rs.15,000/-, Rs.40,000/- and Rs.15,000/- has to be awarded towards funeral expenses, loss of consortium and loss of estate. Hence, the petitioners are awarded Rs.15,000/- towards funeral expenses, Rs.15,000/- towards loss of estate and Rs.40,000/- to the petitioner No.1 towards loss of consortium.
27. The Hon'ble Apex Court in the case of Magma General Insurance Co., Ltd., Vs. Nanu Ram Alias Chuhru Ram and Ors., in Civil Appeal No.9581 of 2018 (Arising out of SLP (Civil) No.3192 of 2018), (D.D.18.09.2018) has held that "Parental Consortium" is awarded to children who lose their parents and that the amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under "Loss of Consortium" as laid down in Pranay Sethi's case. Hence, the petitioners No.2 and 3 and the respondent No.4 being the children of the deceased are awarded compensation under loss of parental consortium @ of Rs.40,000/- each. 21 MVC 8159/2016
28. Thus, the compensation to which the petitioners are entitled is as under:-
Sl.No. Head of Compensation Amount
Rs.
1 Loss to
dependency 4,41,000.00
2 Funeral 15,000.00
expenses
3 Loss of estate 15,000.00
4 Loss of 40,000.00
consortium to
1st petitioner
5 Loss of Parental
Consortium to 1,20,000.00
petitioners No.
2 and 3 and
respondent
No.4 at
Rs.40,000/-
each
Total 6,31,000.00
29. As discussed supra, the petitioner No.1 is the wife, the petitioner No.2 and 3 and the respondent No.4 are the children of the deceased. Hence, the compensation amount is apportioned in the following manner:-
22 MVC 8159/2016
Petitioner No.1 - wife - 60% out of Rs.5,91,000/- Petitioner No.2 - Son - 20% out of Rs.5,91,000/- Petitioner No.3 - Son -20% out of Rs.5,91,000/- Respondent No.4 - Daughter - Rs.40,000/- out of Rs. 6,31,000/-
30. In so far as awarding of interest on the compensation amount is concerned, in MFA No.103557/2016 (Sriram General Ins. Co. Ltd Vs Smt. Lakshmi & Others) (DD.20-03-2018) the Hon'ble High Court has held that as per Sec. 34 of CPC, the rate of interest that can be awarded on judgments cannot be more than 6% and that since Sec. 149 of the Motor Vehicles Act provides for interest on judgments, the interest to be awarded in claim petitions has to be 6% per annum and not more than that. Hence, in the case on hand, interest at the rate of 6% per annum is awarded.
31. In so far as the liability is concerned, in the statement of objections, the respondent No.3 has contended that the driver of the TATA Ace did not possess valid and effective driving licence at the time of the accident and hence, the Police after investigation 23 MVC 8159/2016 have filed charge sheet against the driver of the TATA Ace Vehicle for the offence punishable under Section 3(1) read with Section 181 of the MV Act and hence, there is violation of policy conditions, and the respondent No.3 has to be absolved from indemnifying the respondent No.2/insured.
32. In this behalf, the respondent No.3 has examined its Assistant Manager Legal as RW 1 and in his affidavit evidence filed in lieu of his examination-in- chief, rW 1 has reiterated the said contention.
33. Further, PW 2, the Investigating Officer, who has been summoned and examined by the petitioners in his evidence before the court has stated that he has conducted the investigation and has filed charge sheet against the owner cum driver namely Mubarak Pasha for the offences under Section 279 and 304-A IPC and Section 134(a) and (b) read with Section 187 and 3(1) read with Section 181 of the Motor Vehicles Act. In his cross-examination by the learned Counsel for the respondent No.3, he has admitted that in Ex.R.3, the reply to the Notice issued under Section 133 of the MV Act, the accused/owner-cum driver of the TATA Ace 24 MVC 8159/2016 vehicle has stated that he does not hold driving licence to drive TATA Ace vehicle and as such, he included Section 3(1) read with Section 181 of the MV Act in the charge sheet.
34. The respondent No.3 has summoned and examined the RTO, Mandya as RW 2 and in his evidence RW 2 has produced the driving licence extract of the respondent No.1 /driver Mubarak Pasha at Ex.R.4 and has stated that as per the said driving licence, the respondent No.1 has driving licence to drive motorcycle with gear and LMV which is valid upto 19.11.2032 and that he does not have licence to drive the goods vehicle (transport). In his cross-examination by the learned counsel for the petitioners, RW2 has admitted that as on the date of the accident, the driver was having driving licence to drive LMV Vehicle and has stated that a vehicle whose unladen weight is less than 7500kgs is a LMV Vehicle.
35. The respondent No.1, the driver of the TATA Ace Vehicle who has examined himself as RW 3, in his cross- examination by the learned counsel for the petitioners has stated that he does not have driving licence to drive 25 MVC 8159/2016 TATA Ace Vehicle.
36. The learned Counsel for the petitioners in his arguments has vehemently contended that the driver of the TATA Ace Vehicle was holding licence to drive LMV and a person holding licence to drive LMV, can drive both LMV Transport and Non-Transport.
37. Per contra, the learned Counsel for the respondent No.3, countering the above said arguments of the learned Counsel for the petitioners has contended that for driving a transport vehicle, there must be an endorsement of the Transport Department, but in this case, no such endorsement has been obtained by the driver of the TATA Ace Vehicle and therefore, there is violation of the policy conditions and the liability of the respondent No.3 shall be absolved and the petition be dismissed as against the respondent No.3.
38. In the light of the arguments advanced, it is seen from Ex.R.5, DL extract of the respondent No.1 /driver of the TATA Ace Vehicle that the respondent No.1 has DL to drive motor cycle with gear and LMV which is valid upto 19/11/2032. Therefore, as rightly contended by the learned counsel for the respondent No.3, the 26 MVC 8159/2016 respondent No.1 /driver of the TATA Ace Vehicle was not holding licence to drive the TATA Ace Vehicle. Ex.R6, the RC of the Tata Ace vehicle reveals that its unladen weight is 805 kgs. Ex.P7 is the Insurance Policy of the Tata Ace vehicle. Admittedly, a vehicle whose unladen weight is less than 7500kgs is a LMV Vehicle and the offending TATA Ace Vehicle therefore is a LMV in view of its unladen weight being less than 7500kgs.
39. At this juncture, it is useful to refer to the decision of the Hon'ble Apex Court in the case of Mukund Dewangan Vs. Oriental Insurance Co.Ltd (AIR 2017 SC 3668), wherein, the Hon'ble Apex Court has laid down the proposition of law that for driving light motor vehicle with an unladen weight of 7500 kgs, though it is a transport vehicle, a specific transport endorsement is not required in the driving licence and the Insurance Company cannot absolve itself of the liability to pay the compensation amount.
40. In the case on hand there is no dispute that the driver of the TATA Ace Vehicle/respondent No.1 has driving licence to drive LMV and the unladen weight of the TATA Ace Vehicle is less than 7500kgs. Therefore, as 27 MVC 8159/2016 per the proposition of law laid down by the Hon'ble Apex Court in the afore-said decision, no specific endorsement to drive a transport vehicle is required. As such, the respondent No.1 as owner, the respondent No.2 as Insurance Policy Holder of the TATA Ace Vehicle and the respondent No.3 as Insurer of the TATA Ace vehicle are jointly and severally liable to pay the compensation and the Respondent No.3 being the Insurer shall indemnify the respondent No.1 and 2- Owner and Insurer of the TATA Ace Vehicle. Accordingly, Issue No.2 is answered.
41. Issue No.3: In view of the discussions made above, I proceed to pass the following:
ORDER The petition filed by the petitioners is allowed in part against the respondents No.1 to 3.
The petitioners and the respondent No.4 are entitled for a compensation of Rs.6,31,000/- with interest at the rate of 6% per annum from the date of petition till realisation.
The compensation amount is apportioned amongst the petitioners and the respondent No.4 in the following manner:-
Petitioner No.1 - wife - 60% out of Rs.5,91,000/-28 MVC 8159/2016
Petitioner No.2 - Son - 20% out of Rs.5,91,000/- Petitioner No.3 - Son -20% out of Rs.5,91,000/- Respondent No.4 - Daughter - Rs.40,000/- out of Rs. 6,31,000/-
50% out of the compensation awarded to the petitioner No.1,2 and 3 with proportionate interest is ordered to be deposited in their name in any nationalised or scheduled bank of their choice for a period of 5 years and the remaining amount with proportionate interest is ordered to be released to them. Interest on FD is payable on maturity.
As far as the respondent No.4 is concerned, the entire compensation amount apportioned in her favour with proportionate interest is ordered to be released to her, as the compensation amount awarded to her is meager.
The respondent No.3, the Insurer, shall pay the compensation amount within 2 months from the date of this order.
Advocate's fee is fixed at Rs.1,000/-.
Draw Award accordingly.
(Dictated to the Judgment Writer directly on computer, corrected, signed and then pronounced by me in the Open Court on this the 9.06.2020) (S. MAHALAXMI NERALE) Member, Prl. M.A.C.T. Bangalore 29 MVC 8159/2016 ANNEXURES Witnesses examined on behalf of the petitioners:
P.W.1 : Sarojamma
P.W.2 : Swamynatha
P.W.3 : Ravi Kumar V.,
List of documents marked on behalf of the petitioners:
Ex.P-1 : Copy of FIR
and Complaint
Ex.P-2 Police
Intimation
Ex.P-3 : Heinous
Offence
Report
Ex.P-4 : Mahazar
Ex.P-5 : Sketch
Ex.P-6 : IMV Report
Ex.P-7 : Inquest Report
Ex.P-8 : PM Report
Ex.P.9 : Charge Sheet
Ex.P.10: Death
Certificate
Ex.P.11: Aadhaar Card
Ex.P.12 : Voter ID
&13 Cards
Ex.P.14 Driving
Licence
Witnesses examined on behalf of the
respondents :
R.W.1 Pradeep
R.W.2 K.Anwar Pasha
30 MVC 8159/2016
R.W.3 Mubarak Pasha
Documents marked on behalf of the
respondents:
Ex.R.1 - Policy Copy
Ex.R.2 - Section 133 Notice
Ex.R.3 - Reply to Section 133 Notice
Ex.R.4 - Driving Licence Extract
Ex.R.5 - Driving Licence
Ex.R.6 - Registration Certificates
Ex.R.7 - Policy Copy
(S. MAHALAXMI NERALE)
Member, Prl. M.A.C.T.
Bangalore.