Bangalore District Court
A.Sarojamma vs M/S Arunachala Logistics on 5 March, 2022
KABC020305562019
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS
TRIBUNAL, BANGALORE CITY.
SCCH14
Present: Smt.Parveen A Bankapur,
B.Com.LL.B.(Spl),
Member, MACT,
XVI ADDL. JUDGE,
Court of Small Causes,
BENGALURU.
MVC No.7307/2019
Dated this the 5th day of March 2022
Petitioner/s : 1. A.Sarojamma,
W/o Late A Lokesh,
Aged about 38 years.
2. Kum. A. Indu,
D/o Late A Lokesh,
Aged about 20 years.
3. Kum. Bindu,
D/o Late A Lokesh,
Aged about 18 years.
4. Mast. A.Vijaykumar,
S/o Late A Lokesh,
Aged about 16 years.
SCCH14 2 MVC 7307/2019
Since petitioner No.4 is minor,
rep. By their natural guardian /
mother Sarojamma i.e.,
petitioner No.1.
petitioner No.1 to 4 are R/at
No.737A, Atrapalle Village,
Kongatam post, V.Kota Mandal,
Chittoor district, Andhrapradesh
5. Venkatamma,
W/o S.Radhakrishna @
Radhakrishnappa,
Aged about 65 years.
4. S.Radhakrishna @
Radhakrishnappa,
S/o Late Subbaiah,
Aged about 70 years.
petitioner No.5 and 6 are R/at
Lakshmisagara village,
Mustur post, Bangarapet taluk,
Kolar district.
(By pleader Sri.NM)
V/s
Respondent/s 1. M/s Arunachala Logistics
Pvt.Ltd., Rep. by its
Executive Director,
No.821/1/3, Avatar Nivas,
Srinagar Colony main road,
Punjagutta, Hyderabad,
Telangana State500082.
Also at: Survey No.75/11/B,
Eluvapalli Village,
SCCH14 3 MVC 7307/2019
Bagalur road, Hosur taluk,
Krishnagiri district,
Tamilnadu635103.
(By pleader Sri.MKV)
2. The New India Assu.Co.Ltd.,
Regional Office,
Unity Building Annexe,
Mission road, Bengaluru27.
(By pleader Sri.RS)
:JUDGMENT:
The petitioners have filed this claim petition U/Sec.166 of M.V. Act for awarding compensation of Rs.40,00,000/ in view of death of Lokesh S/o Radhakrishna in a road traffic accident dated 31.03.2019.
2. In brief, the case of the petitioners may be stated as under:
It is alleged that, on 31.03.2019 at about 7.30 p.m., when the deceased Lokesh was going towards his village Atrapalli from V.Kota side by riding a Yamaha Crux Motorcycle bearing Reg.No.AP03AA6908, slowly and cautiously on correct side of the road, when he reached near Essar petrol bunk, Panthanahalli village, on V KotaKuppam road, KGF taluk, Kolar district, at that time a Lorry bearing Reg.No.TN70Y2431 came from opposite side, driven by its SCCH14 4 MVC 7307/2019 driver in high speed, in rash and negligent manner and dashed against the deceased. Due to this impact, the deceased was knocked to the ground and sustained severe injuries. Immediately after the accident deceased was being taken to government hospital, V.Kota, but he succumbed to the said injuries on the way. Thereafter postmortem was conducted and then the body was handed over to the petitioners.
Prior to this accident, deceased Lokesh was hale and healthy person and he was Mason Supervisor and was earning a sum of Rs.30,000/. Due to this accident, the petitioners lost the earning member of their family and they are facing much difficulties in day today life. It is stated by the petitioners that, the said accident was occurred due to rash and negligent driving of the driver of Lorry bearing Reg.No.TN70Y2431. The respondent No.1 is the owner and respondent No.2 is the insurer of the said offending vehicle. Therefore, the petitioners are constrained to file this claim petition.
3. After service of notice, the respondent no.1 and 2 appeared through their respective counsel and filed written statement.
The respondent No.1 contended that, he is the registration certificate owner of the Lorry bearing Reg.No.TN SCCH14 5 MVC 7307/2019 70Y2431 and all the records relating the said vehicle are standing in the name of the respondent No.1. The respondent No.1 has insured the said vehicle with 2 nd respondent, vide policy No.610300311803000002114 valid from 11.06.2018 to 10.06.2019. Further contended that, the driver of the respondent No.1 vehicle was having valid and effective driving license and having valid permit. Further he denied all plaint averments.
The respondent No.2 admitted the issuance of policy No. 610300311803000002114 valid from 11.06.2018 to 10.06.2019 in favour of the first respondent in respect of Lorry bearing Reg.No.TN70Y2431 and its validity, since it is not been confirmed by the concerned policy issuing office. Further contended that the driver of the offending lorry was not holding valid and effective driving license to drive the same and the lorry does not have valid permit, fitness certificate. Further denied the very occurrence of the accident and involvement of lorry. Further contended that, this accident occurred due to the negligence on the part of the deceased. The deceased rode his vehicle in rash and negligent manner without observing the traffic rules and without wearing the helmet and skied. Hence, on all these grounds, respondents have prayed for dismissal of the claim petition.
SCCH14 6 MVC 7307/20194. On the basis of above pleadings, the following issues have been framed:
ISSUES
1. Whether the petitioners prove that, they are the legal representatives of the deceased?
2. Whether the petitioners prove that Sri.Lokesh S/o Radhakrishna died due to injuries sustained by him in an accident occurred on 31.03.2019 at about 7.30 p.m., in front of Essar petrol bunk, Panthanahalli village, on V KotaKuppam road, KGF taluk, Kolar district, arising due to rash and negligent driving of driver of Lorry bearing Reg.No.TN70Y2431?
3. Whether the Petitioners are entitled for compensation? If so, how much and from whom?
4. What Order or Award?
5. In order to prove their case, petitioner No.1 is the wife of the deceased has examined as PW1 and got marked documents as Ex.P.1 to Ex.P.15. On the other hand, the respondents have not adduced any oral or documentary evidence.
6. I have heard both sides and perused the material available on record and therefore my findings to above raised issues are as follows;
Issue No.1 : In the Affirmative
Issue No.2 : In the Affirmative
Issue No.3 : Partly in the affirmative
Issue No.4 : As per final order,
for the following;
SCCH14 7 MVC 7307/2019
:R E A S O N S:
7. Issue No.1: In this case, the petitioner No.1 is the wife, petitioner No.2 to 4 are daughters and son and petitioner No.5 and 6 are the parents of the deceased Lokesh.
In order to prove that they are legal heirs of the deceased, the PW.1 has produced notarized copy of Aadhar cards of deceased and petitioner No.1 to 6 at Ex.P.7 to 13 and election ID cards at Ex.P.14 & 15. These documents reveals that, Petitioner No.1 is wife, petitioner No.2 to 4 are daughters and son and petitioner No.5 and 6 are the parents of the deceased Lokesh. Even the Respondents have not disputed the relationship between the deceased and Petitioners. In the arguments learned counsel for respondent No.2 argued that, petitioner No.2 is married and residing her husband's house, hence she is not dependent on the income of the deceased. In the crossexamination of PW1 she admits that, about years back marriage of the petitioner No.2 was taken place. PW1 was crossexamined on 29112021. The accident took place on 31032019. Therefore, at the time of accident, petitioner No.2 was not married. In the cause title of the petition also name of the father of petitioner No.2 is mentioned not her husband's name. Under such circumstances, considering the facts and circumstances of the case, this Tribunal comes to the conclusion that, the Petitioners No.1 to 6 are the legal heirs of the deceased and they are dependents on the income SCCH14 8 MVC 7307/2019 of the deceased. Hence, I answer the Issue No.1 in the affirmative.
8. Issue No.2: Since the petitioners have filed this petition U/s.166 of M.V. Act therefore, the burden is upon them to prove the said accident and not only the said accident but also the alleged negligent driving by the driver of Lorry bearing Reg.No.TN70Y2431.
9. The petitioner No.1 who is the wife of the deceased Lokesh entered into witness box as PW1 by filing her affidavit as examinationinchief and she is not eyewitness to the said accident. Further she got marked in all 11 documents. ExP1 is copy of FIR along with complaint in Bethamangala Police station in Crime No.0055/2019 registered on 01.04.2019 against the driver of Lorry bearing Reg.No.TN70Y2431, Ex.P2 is the spot panchanama with sketch, Ex.P.3 is the IMV report, ExP4 is the inquest panchanama, Ex.P.5 is the PM report, Ex.P.6 is the charge sheet.
10. The documents marked at Ex.P1 to Ex.P6 makes it clear that on the accident was taken place on 31.03.2019 at about 7.30 pm., the accident was taken place. The driver of the Lorry bearing Reg.No.TN70Y2431 in a rash and high SCCH14 9 MVC 7307/2019 speed and dashed against the deceased and deceased was sustained injuries and died on the way to the hospital. PW.1 was lodged the complaint on the next day. On the next day the police have conducted the spot mahazer and conducted the inquest panchanama of the deceased body. After detailed investigation I.O. has filed chargesheet against the driver of the lorry, these documents would support the case madeout by the petitioners in respect of alleged negligent driving by the driver of the said offending vehicle lorry.
11. The counsel for the respondent No.2 subjected PW1 to the crossexamination and suggested PW1 that they have falsely got implicated the said lorry in this case and no negligent on the part of the driver of the lorry, which is denied by the PW1.
On the other hand, the respondents have not adduced any oral or documentary evidence. At the time of arguments learned counsel for respondent No.2 vehemently argued that, due to the negligence of the deceased only said accident was taken place and at the time of accident the deceased was not holding driving licence. On perusal of the chargesheet, there is not allegation against the deceased. On perusal of the sketch map also, it appeared that there is negligence on the part of the driver of offending vehicle.
SCCH14 10 MVC 7307/201912. Besides, as has been stated above, the jurisdictional police have investigated the accident in question and filed the 'A' charge sheet at Ex.P6 wherein the police have made specific allegation that the accident in question had taken place because of the actionable negligence of the driver of the offending vehicle ie., respondent No.1. Besides, the respondent No.2 has not produced anything to show that he has challenged the correctness of the 'A' charge sheet filed by the jurisdictional police; hence, it is sufficient to conclude that the materials available on record are sufficient to conclude that the accident in question had taken place because of the actionable negligence of the driver of the offending vehicle.
13. Besides, it is well settled that in motor vehicle accident compensation cases the strict proof of negligence is not required. This view of this court receives support from the law declared by the Hon'ble Apex Court in the decision reported in 2009 (13)SCCpage530 in the case of Bimla Devi and others Vs Himachalapradesh Road Transport Corporation and another and another decision reported in AIR 2011SC1504 in the case of Paraeshwari Vs Amir Chand and others. Thus, even this ratio laid down by the Hon'ble Apex Court is also sufficient to conclude that this SCCH14 11 MVC 7307/2019 court is not supported to look for strict proof of negligence on the part of the driver of Lorry bearing Reg.No.TN70Y2431. Therefore, after considering all the police documents and evidence of PW.1 in my opinion, the petitioners have proved that the said accident was only because of actionable negligence on the part of the driver of offending vehicle and deceased was sustained grievous injuries in the said accident and died. With these observations, I have answered issue No.2 in the Affirmative.
14. Issue No.3: The petitioners have proved the Issue No.1 and the Issue No.2. The respondent No.2 has not seriously disputed the existence of insurance policy. Therefore, under these circumstances, petitioners No.1 to 6 being the legal heirs of the deceased Lokesh are entitled for compensation.
15. The contentions of the petitioners that deceased was Mason Supervisor and earning income of Rs.30,000/ per month. But the petitioners have not produced any documents with respect that deceased was Mason Supervisor and getting income of Rs.30,000/ per month, neither they have not examined any witnesses. Therefore, only oral evidence of the PW1 is not sufficient to hold that deceased had monthly income of Rs.30,000/ p.m., Therefore, this SCCH14 12 MVC 7307/2019 tribunal has to assess the notional income of the deceased by taking into consideration his age, occupation, place of residence and minimum wages on date of accident etc., After considering all these aspects, I am inclined to take notional income of the deceased as Rs.11,000/ p.m.
16. As already discussed in issue No.1, petitioner No.1 is the wife, petitioner No.2 to 4 are the daughters and son and petitioner No.5 and 6 are the parents of the deceased and they are dependents on the income of the deceased.
17. As per Ex.P4 and 5 Inquest Panchanama and PM report the age of the deceased at the time of accident was 45. In the Aadhar card as per Ex.P7 of deceased birth year is mentioned as 1971. Therefore, as per aadhar card deceased age at the time of accident is 48 years. Since the deceased was just 48 years old at the time of the accident. Therefore, the proper multiplier for the age group from 45 to 48 years is "13".
Besides, so far as adding of future prospects to the income of deceased is concerned, however, I have relied upon the ruling reported in 2018 ACJ 5(SC) (Hemraj Vs Oriental Insurance Co., Ltd., & Ors) wherein it is held as under:
"QuantumFatal accident Principles of assessmentFuture prospectsDeceased aged SCCH14 13 MVC 7307/2019 40Upholding objection of insurance company that principle of addition on account of future prospects is not applicable where income of the deceased is determined by guesswork, High court disallowed the addition of 50 percent made by the tribunal for future prospects while computing compensationWhether addition on account of future prospects is admissible where minimum income is determined on guesswork prospects is admissible where minimum income is determined on guesswork in the absence of proof of income Held: yes; there cannot be distinction where there is evidence of income and where minimum income is determined on guesswork; executing court directed to recompute entitlement of claimants by addition 40 percent of income for future prospects and make corresponding deduction towards personal expenses."
And also considering recent judgment passed by the Hon'ble Supreme Court in Civil Special Leave Petition(Civil No.25590/2014 dated 31102016 (National Insurance Company Ltd., VS Pranay Sethi and others). Wherein it is held that, the person who is self employed and his age is below 40 years at the time of accident, 40% future prospects and his age is above 50 years and below 60 years at the time of accident, 25% and 10% respectively future prospects has to be added to the income of the deceased.
18. In this case, the deceased was aged about 48 years as on the date of accident. Considering the same, if 25% SCCH14 14 MVC 7307/2019 future prospects is added to the income of the deceased, it would out at Rs.13,750/ (Rs.11,000+25%)per month.
As per Sarala Verma's case, out of the said income, 1/4th is required to be deducted towards personal and living expenses.
Under these circumstances, the petitioners are entitled for compensation of Rs.16,08,828/ under the head of loss of dependency. [Rs.13,750/ 1/4= X 12 X 13= Rs.16,08,828/].
19. Further, so far as awarding compensation under other conventional heads are concerned, the petitioner has stated that, they have spent huge amount towards shifting of dead body and performing of funeral and obsequies ceremony. In this regard, the Honb'le Supreme Court judgment passed in Civil Special Leave Petition(Civil No.25590/2014 dated 31102016 (National Insurance Company Ltd., VS Pranay Sethi and others). Wherein it is held that, as far as conventional heads are concerned the petitioner is entitled funeral expenses of Rs.15,000/ and the petitioner No.1 being wife of the deceased is entitled for compensation of Rs.40,000/ under the head for filial consortium and petitioner No.1 to 6 are entitled for SCCH14 15 MVC 7307/2019 compensation under the head of loss of estate at Rs.15,000/.
20. Therefore, on all possible heads, the petitioners are entitled for total compensation of a sum of Rs./. The head wise of compensation is as under:
1. Loss of dependency Rs.16,08,828/
2. Medical expenses
3. Transportation of dead body Rs. 15,000/ and Funeral Expenses
4. Filial consortium Rs. 40,000/
5. Loss of estate Rs. 15,000/ Total Rs.16,78,828/ So, petitioners are entitled for the total compensation of Rs.16,78,828/ only.
21. Liability: The petitioners have proved that said accident occurred because of negligence on the part of driver of offending vehicle and there was no any dispute about insurance coverage to the said vehicle as on the date of accident. The respondent No.2 has taken several contention in his written statement, but he has not adduce any cogent evidence neither produced any documents to prove his contention. Therefore, the respondent No.1 and 2 are jointly and severally liable to pay the compensation to the petitioners. However, respondent No.2 being insurer of the SCCH14 16 MVC 7307/2019 offending vehicle is liable to indemnify the respondent No.1 and liable to pay compensation to the petitioners.
By considering the present days FD rate of interest in the nationalized bank it is just and necessary to direct the respondent No.2 to pay the compensation amount with interest at the rate of 7% p.a., from the date of petition till the date of payment. Accordingly, I answered Issue No.3 Partly in the Affirmative.
Petitioner No.1 being wife, petitioner No.2 to 4 are the children and petitioner No.5 and 6 are the parents of the deceased are dependents on the income of the deceased. Hence, petitioner No.1 is entitled 50% compensation and petitioner No.4 is minor son is entitled 20% and petitioner No.3 is the unmarried daughter of the deceased is entitled 15% and petitioner No.2 daughter and petitioner No.5 and 6 are the parents of the deceased are entitled 5% each. Hence, I have answered issue No.3 under consideration partly in the affirmative.
22. Issue No.4: For the foregoing reasons, I proceed to pass the following;
SCCH14 17 MVC 7307/2019ORDER The claim petition filed by the petitioners U/Sec.166 of M.V.Act is hereby allowed partly with costs.
The petitioner No.1 to 6 are entitled for total compensation of Rs.16,78,828/ along with interest at the rate of 7% per annum from the date of petition till its realization.
The respondents No.1 & 2 are jointly and severally liable to pay said compensation amount to the petitioners. The respondent No.2 being insurer, shall deposit the compensation amount within two months from the date of this order.
After deposit of compensation amount, 50% share is apportioned in favour of petitioner No.1 and 20% share is apportioned in favour of petitioner No.4 and 15% share is apportioned in favour of petitioner No.3 and 5% each share is apportioned in favour of petitioner No.2, 5 and 6.
Out of compensation amount apportioned to petitioner No.1, 50% shall be kept in F.D. in any nationalized or schedule bank initially for a period of 3 years with a liberty to draw periodical interest and with a direction to the bank authority not to create any charge and not to allow any premature withdrawals.
Out of compensation amount apportioned to minor petitioner No.4, entire amount shall SCCH14 18 MVC 7307/2019 be deposited as F.D. in his name in any nationalized or schedule bank until she attain age of majority and the remaining balance amount of petitioner No.1 and share apportioned to petitioner No.2, 3, 5 and 6 with accrued interest shall be released to the petitioner No.1 to 3 and 5 and 6 respectively through RTGS/NEFT by way of Epayment.
Advocate fee is fixed at Rs.2,000/.
Draw award accordingly.
(Typed by me on laptop, corrected, signed & then pronounced by me in open court on this 5th day of March, 2022) (Parveen A Bankapur) XVI ADDL.JUDGE, Court of Small Causes, Bangalore.
ANNEXURE Witnesses examined for the petitioners PW1 : Smt.Sarojamma A. Documents marked for the petitioners Ex.P.1 Copy of FIR with complaint Ex.P.2 Copy of spot mahazar with sketch Ex.P.3 Copy of IMV report Ex.P.4 Copy of inquest mahazar with witness Ex.P.5 PM report Ex.P.6 Charge sheet Ex.P.7 to 13 Notarized copy of aadhar cards SCCH14 19 MVC 7307/2019 Ex.P.14 Notarized copy of election ID card Ex.P.15 Notarized copy of election ID card Witnesses examined for the respondents: None Documents marked for the respondents Nil XVI ADDL.JUDGE , Court of Small Causes & MACT., Bengaluru.