Bangalore District Court
Smt.Ningamma vs Smt.Shabeena Khanum on 10 October, 2022
KABC020072902020
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
Court of Small Causes, Bengaluru,
DATED THIS THE 10th DAY OF OCTOBER 2022
PRESENT: SMT.SHILPA K.S (BAL, LLB)
VII Addl. SCJ and ACMM,
Member, MACT3, Bengaluru.
M.V.C. No.1438/2020
Petitioners: 01. Smt.Ningamma,
W/o late Shivananjegowda,
Aged about 30 years,
02. Master Poorvik Gowda.A.S,
S/o late Shivananjegowda,
Aged about 10 years,
03. Kum.Vismaya,
D/o late Shivananjegowda,
Aged about 05 years,
04. Smt.Puttathayamma,
W/o Puttaswamy,
Aged about 67 years,
Petitioners 2 & 3 are minors, rep.
by their mother and natural
guardian Smt.Ningamma.
(SCCH3) 2 M.V.C.No.1438/20
All are residing at Akkur,
Channapattana Taluk,
Ramanagara District.
(By Sri.Bommegowda.B, Advocate)
Vs
Respondents: 01. Smt.Shabeena Khanum,
W/o Syed Ayub,
Alakere Village,
Keregoudu Hobli,
Mandya Taluk,
Pin - 571 450.
(R.C. Owner of Lorry bearing
reg. No.KA083482)
(Absent)
02. United India Insurance Co. Ltd.,
Regional Office,
5th Floor, Krushi Bhavan,
Nrupathunga Road,
Near Hudson Circle,
Bangalore - 560 027.
(Policy No.0723833118P115355126/1,
Valid from 04052019 to 25022020)
(By Sri.K.R.Shivananda, Advocate)
********
JUDGMENT
The petitioners have filed this petition claiming compensation of Rs.1,25,00,000/ (One crore twenty (SCCH3) 3 M.V.C.No.1438/20 five lakhs) for the death of Sri.Shivananjegowda, in the road traffic accident occurred on 06.02.2020.
02. The brief facts are as under: It is submitted that on 06.02.2020 at about 01.00 p.m when the deceased namely Shivananjegowda was riding the TVS Jupiter vehicle bearing No. KA02JQ8332 on the extreme left side of S.M.Halli Village, V.Pura Hobli, Channapattana Taluk, Ramanagara, at that time suddenly the driver of Lorry bearing No.KA083482 came from Honganuru towards Akkuru, in rash and negligent manner and dashed to the vehicle of Shivananjegowda. Due to this he fell down and the wheels of the said lorry ran over on his head, due to which he succumbed to fatal injuries and died at the spot. Immediately after the accident he was shifted to Channapattana Government hospital, wherein post mortem was conducted and handed over the dead body to the petitioners. Thereafter the petitioners have shifted the dead body to their residence in hired vehicle and conducted funeral and obsequies ceremonies by spending more than Rs.1,50,000/. Due to the death of Shivananjegowda, the petitioners being the wife, children and mother have undergone deep mental shock, pain and sufferings. That the deceased prior to the accident was hale and healthy and was working as (SCCH3) 4 M.V.C.No.1438/20 Senior Executive and Director at Modicare Consultant Authorization and earning Rs.72,675/ p.m and was income tax assessee. The accident is due to the rash and negligent driving of Lorry driver. The respondent No.1 is the R.C owner and the respondent No.2 is the insurer of the said Lorry. Hence, both respondents are liable to pay the compensation. Hence this petition.
03. After service of notice, the respondent No.1 did not appeared before the Court and hence she was placed absent. However the respondent No.2 have appeared through their counsel and filed written statement.
04. The averments of the written statement of respondent No.2 is as under: The respondent No.1 has not intimated about the accident. This respondent has issued policy in the name of the respondent No.1 but liability is subject to terms and conditions of the policy. The lorry driver did not possessed valid driving licence on the date of accident. It is denied that the husband of the petitioner No.1 died only due to the rash and negligent driving of the lorry driver. The lorry driver was not at fault. The petitioners are not the legal heirs and dependents on the deceased. It is denied that the deceased was contributing the income to the family. It is denied that the deceased was hale and healthy and (SCCH3) 5 M.V.C.No.1438/20 was working as Senior Executive and Director at Modicare Consultant Authorization and earning Rs.72,675/ p.m and was income tax assessee. The claim of the petitioners are excessive and exorbitant and hence prays to dismiss the petition.
05. In order to prove the case, the petitioner No.1 and other two witnesses were got examined as Pw.1 to 3 and got marked 26 documents as Ex.P.1 to 26 and closed their side.
06. By way of rebuttal, the respondent No.2 submits no oral evidence.
07. Heard arguments from both sides.
08. Based on the aforesaid pleadings, the following issues have been framed by my learned predecessor: ISSUES
01. Whether petitioners prove that they are the LRs/dependents of deceased Sri.Shivananjegowda S/o Puttaswamy?
02. Whether petitioners prove that deceased Sri.Shivananjegowda S/o Puttaswamy died due to the injuries suffered in road traffic accident alleged to have been taken place on 06.02.2020 at about 01.00 p.m, S.M. Halli Village, V.Pura Hobli, Channapatna Taluk, Ramanagara, due to rash and negligent act of driving of the Lorry bearing reg. No.KA083482 by its driver as alleged in the petition?
(SCCH3) 6 M.V.C.No.1438/20 03. Whether petitioners are entitled for
compensation? If so, what amount & from whom?
04. What order or award?
09. My findings on the aforesaid issues are as under: Issue No.1 In affirmative Issue No.2 In partly affirmative Issue No.3 In partly Affirmative Issue No.4 As per final order for the following:
REASONS
10. Issues No.1 and 2: These issues will be taken at one stretch for my consideration in order to avoid repetition of facts as they are inter related with each other.
It is the grievance of the petitioners that the deceased Shivananjegowda died in road traffic accident which took place on 06.02.2020 due to the rash and negligent driving of Lorry driver. Further they have contended that they are the legal heirs and dependents of deceased. Due to the death of deceased, the petitioners have lost their bread earner and facing (SCCH3) 7 M.V.C.No.1438/20 mental stress. Hence, they have claimed compensation.
11. Per contra, the same was denied by respondent No.2 and stated that the accident did not took place due to the negligence of Lorry driver and hence they are not liable to pay the compensation. Further they have contended that the lorry driver did not hold driving licence to drive the lorry on the date of accident and as conditions of policy is violated they are not liable to pay compensation.
12. In order to prove this, the petitioner No.1 was got examined herself as Pw.1 by reiterating all the averments of the petition in her affidavit. The Pw.1 in her crossexamination admitted that "I have not witnessed the accident. One Ramegowda has informed about the accident caused to my husband. Complaint is given by one Shivananjegowda. He is my relative. I do not know the exact occupation of deceased, but he was doing modicare business. I am not doing any work for livelihood". Further the Pw.1 had denied all other suggestions of the respondent No.2 counsel. The Pw.1 had not seen the accident. She had deposed based on the available documents on record.
13. Further in support of her case, the Pw.1 has got examined one of the eye witness by name Ramegowda as Pw.3 who had informed the PW.1 about (SCCH3) 8 M.V.C.No.1438/20 the accident. The PW.3 has stated that on 06.02.2020 when he was standing at Santemogalli village at about 01.00 p.m the deceased was proceeding slowly in his motorcycle and at that time a lorry driver came in rash and negligent manner from behind and dashed to the deceased. Due to this the deceased fell down and the tyre of the lorry ran over on him and he died at the spot itself. Then the dead body was taken to the hospital with the help of public.
14. The Pw.3 has got marked copy of Aadhaar card to prove his identity as per Ex.P.21. The Pw.3 has admitted that "That on the date of accident, I was in the accident spot for reason of selling cows. That I was selling the cows at Thammanagowda farm which is situated next to the accident road. That the deceased was proceeding in motorcycle from Channapatna towards Akkur. That one Chowdalingegowda was present along with me. The lorry came from Channapatna side. I had ot lodged complaint to the police. I had signed to the spot and seizure mahazar ".
15. The Pw.3 is the eye witness No.3 stated in the chargesheet. Even the Pw.3 had supported the case of the petitioners that due to negligent driving Lorry driver only the husband of the petitioner No.1 sustained injuries and later died.
(SCCH3) 9 M.V.C.No.1438/20
16. The Pw.1 further got marked entire police documents as per Ex.P.1 to 8. On perusal of these documents, it is clear that the concerned I.O after investigation have filed Charge sheet against the driver of Lorry for the alleged offences punishable U/s 279, 304(A) of IPC. As per Ex.P.8 the concerned I.O have stated that the deceased died only due to the rash and negligent driving of Lorry driver.
17. Eventhough the respondent No.2 contend that the accident did not occurred due to the negligence of lorry driver, but they have not adduced any supportive oral and documentary evidence on their behalf. Even the oral evidence of Pw.1 and 3 are corroborated with the police documents. It is true that the Pw.3 did not lodge complaint to the police but he was cited as eye witness in the chargesheet. Hence the oral evidence of Pw.3 is corroborated with the allegation of the petitioners that the accident occurred due to the negligent of the driver of Lorry, due to which the husband of the petitioner No.1 sustained injuries and later died on the spot.
18. It is pertinent to note that the Pw.1 had marked the Sketch as per Ex.P.25. On perusal of Ex.P.25 it is clear that the accident took place on Akkuru - Channapatna Road and it is a tar road. It is true that as per Ex.P.25 the concerned I.O did not (SCCH3) 10 M.V.C.No.1438/20 mentioned in which direction the lorry and the motorcycle were proceeding. They have only shown the accident spot. So as per Ex.P.25 it is true that the accident took place in the middle of road, so it means that the deceased was proceeding in the middle of the road against the traffic rules. So if the deceased was riding the motorcycle on the left side of the road then the accident could not taken place. The counsel for petitioners have stated that the concerned I.O have wrongly shown the 12 and 8 feet wrongly in the sketch. So for a while if we assume that it was wrongly shown then also the deceased was proceeding 8 feet away from the left side road. So it amounts to contributory negligence. Hence the deceased had also contributed to the accident.
19. So as per Ex.P.7 the IMV report the motor cycle was damaged to front left side rear view mirror damaged, rear left side body damaged and rear left side foot rest damaged. So as per Ex.P.7 the spot mahazar and sketch marked at Ex.P.25 it is clear that the deceased was proceeding in the middle of the road and the lorry also came in rash and negligent manner and the accident took place. So with the available documents on record it is true that the motorcycle of the deceased far away on left side of the road and the lorry also came in speed manner and hence the lorry (SCCH3) 11 M.V.C.No.1438/20 driver could not avoid and the accident took place. There are no documents to know as to whether the lorry driver or the deceased were driving the vehicles at which speed. The notion of speed is not explained by any of the witnesses. It is true that the respondent No.2 have not challenged the chargesheet filed against the lorry driver.
20. At this stage I would like to rely upon decisions reported in a. (2005)6 SCC 172 - National Insurance Co., Ltd., v/s Prembai - It is observed that the claim petition before the tribunal is an action in tort and the injured have to establish that there is no negligence on his part with cogent evidence.
b. 2014 AIR SCW 1081 - Lachoo ram V/s Himachal road transport corporation - It is observed that the case has to be decided on basis of preponderance of probabilities c. MFA.No.962/2012 - It is observed that law is fairly well settled that final report and admission of guilt by accused before criminal court are not decisive in a proceeding before the tribunal. The tribunal has to decide the claim petition on the basis of evidence adduced before it.
d. ILR 2009 Kar 3562 - Veerappa V/s Siddappa - It is observed that the courts have to (SCCH3) 12 M.V.C.No.1438/20 careful in adjudicating such claims but also find ways to prevent such abuse.
21. It is true that the chargesheet is filed against the lorry driver. But from the above findings the accident occurred due to the negligence of both deceased and lorry driver. So the deceased had too contributed to the accident. There is contributory negligence of the deceased in causing the accident. With the available documents on record I feel it just and proper to fix 10% contributory negligence on the part of the deceased and 90% negligence on the part of lorry driver.
22. Further the petitioners in order to prove that they are the legal heirs and dependents of the deceased have produced Notarized copy of ID card of deceased, Aadhaar cards of themselves and deceased and Driving license of the deceased as per Ex.P.10 to
16. So, basis of these documents, I am of opinion that the petitioners No.1 to 4 are the wife, children and mother of the deceased can be considered as dependents and legal heirs of deceased. Hence, I answered issue No.1 in affirmative and issue No.2 in partly affirmative.
23. Issue No.3: As per above findings, it is clear that the accident took place and the husband of the petitioner No.1 died at the spot due to fatal (SCCH3) 13 M.V.C.No.1438/20 injuries. Hence the petitioners No.1 to 4 being the dependents of deceased are entitled for compensation as under:
a) Loss of dependency:- The petitioners submitted that the deceased was aged about 43 years as on the date of accident. To prove the same, they have produced copies of Aadhaar card and Driving license of the deceased as per Ex.P.11 and 16 and according to it as on the date of accident the age of the deceased would be 44 years and the same is considered for calculating the compensation. So, as per Sarla Varma and others Vs Delhi Transport Corporation and others case reported in 2009 ACJ 1298 the multiplier applicable is "14" and the same is considered.
In order to prove the income of the deceased as Rs.72,675/ p.m by working as Senior Executive and Director at Modicare Consultant Authorization, the petitioners have produced Letter issued by Modicare Company showing salary details of deceased Shivananjegowda, copy of ID card of deceased Shivananjegowda as per Ex.P.9 and 10, copy of Form 26 AS and Account extract of SBI as per Ex.P.17 and 18, three photos, CD, Certificate issued by Modicare, (SCCH3) 14 M.V.C.No.1438/20 Bengaluru Vijaya Newspaper and Salary certificate as per Ex.P.22 to 24 and 26.
Further the petitioners have also examined one witness by name Manjunath, working as Area Sales Manager at Modicare Company Ltd., as Pw.2 who had stated that the deceased was working under them and getting salary. The Pw.2 had produced Letter of Modicare showing the details of income of deceased and copy of his ID card as per Ex.P.19 and 20.
The Pw.2 in his cross examination has admitted that "I have not produced any documents to show that it is part of Modi enterprises. It is true that they are the promoters of modi care products. They are founders and promoters. Deceased was one of the agent under modicare. It is true that he was not employee under modi enterprises. It is true that he was paid commission based on the business transacted. The commission was directly credited to bank account of agent. It is true that we have not given commission from modi enterprises and it is paid through modicare".
As per Ex.P.22 to 24 and with the admission of the Pw.2, it is true that the deceased was working as commission agent. The Pw.1 has got marked Ex.P.26 which says the income of the deceased from August 2019 till January 2020. But the author of Ex.P.26 was (SCCH3) 15 M.V.C.No.1438/20 not got examined by the petitioners. Further as per Ex.P.18 it is noticed that the amount was credited to the account of the deceased as per his turn over. But there is no fixed salary for the work done by the deceased. So even there is no fixed or defined salary/amount of the deceased. During the course of cross examination of Pw.1 the Ex.P.18(a) and Ex.P.18(b) were got confronted and got marked. So as per Ex.P.18(a) a sum of Rs.46,666/ was credited to the account of the deceased on 08.11.2019 and then on the same day amount was transferred to others. Even as per Ex.P.18(b) a sum of Rs.56,073/ was credited to the account of the deceased on 09.01.2020 and on the same day amounts were got transferred. So the Ex.P.18 cannot be taken into consideration to believe that the deceased was earning Rs.72,675/ p.m. Other than Ex.P.18 the petitioners have not produced any documents to show that the deceased was having income as stated in the petition.
Hence the income of the deceased as stated by the petitioners cannot be considered. It is true that the deceased was working as commission agent at modicare enterprises and earning income based upon his work turned out. Hence, I am of opinion that it is just and proper to consider the income of the deceased. The date of accident is 2020 and the (SCCH3) 16 M.V.C.No.1438/20 notional income for the said year comes to Rs.14,500/ per month.
Since the deceased has left four dependents and as per Sarla Varma and others Vs Delhi Transport Corporation and others case reported in 2009 ACJ 1298 if the dependents are 4 to 6, then personal deduction is to be 1/4th. Hence, in this case 1/4th deduction has to be done towards personal expenses. So, after deduction of 1/4th (Rs.3,625/), then the income comes to Rs.10,875/.
As above stated that apart from the deceased there are no one to look after the petitioners. As per Judgment of Hon'ble Supreme Court of India in Sarla Varma and others Vs Delhi Transport Corporation and others case reported in 2009 ACJ 1298 the petitioners are entitled for future prospects. The deceased being self employed and aged about 40 years, then 30% (Rs.3,262/) to be added towards future prospects, the income for calculation comes to Rs.14,137/. Hence the petitioners are entitled for Rs.14,137 x 12 x 14 = Rs.23,75,016/ under this head.
b) Loss of estate and funeral expenses: Since it is settled law in National Insurance Company Ltd., Vs Pranay Sethi and others case in (SCCH3) 17 M.V.C.No.1438/20 AIR 2017 SC 5157 that the dependents would be entitled for loss of estate to the extent of Rs.15,000/ and funeral expenses to the extent of Rs.15,000/, as such I award the same.
c) Loss of consortium: In this case the petitioner No.1 being the widow of the deceased is entitled for Rs.40,000/ towards spousal consortium and petitioners No.2 and 3 being the children of the deceased are entitled for Rs.40,000/ each towards parental consortium and petitioner No.4 being the mother of the deceased is entitled for Rs.40,000/ towards filial consortium as per Judgment of Hon'ble Supreme Court in United India Insurance Co. Ltd., Vs Satinder Kaur @ Satwinder Kaur & Ors case and Magma General Insurance Company case in (2018) 18 SCC 130. Hence I award the same.
24. Thus the petitioners are entitled for compensation under the following heads:
1.Loss of dependency Rs.23,75,016/
2.Loss of estate 15,000/
3.Towards spousal consortium 40,000/ (for petitioner No.1)
4.Towards parental consortium 80,000/ (for petitioners No.2 and 3) (SCCH3) 18 M.V.C.No.1438/20
5.Towards filial consortium (for 40,000/ petitioner No.4)
6.Transportation of dead body and funeral expenses 15,000/ Total Rs.25,65,016/
25. Regarding liability : In view of my above finding it is clear that the accident took place due to the contributory negligence of Lorry driver and the deceased. The respondent No.2 have admit the policy and it is in force on the date of accident. Hence the respondents No.1 and 2 being the RC owner and insurer of the offending vehicle are jointly and severally liable to pay the compensation to the petitioners to the extent of 90% and the petitioners have to borne out 10% for the contributory negligence of the deceased.
26. With regard to apportionment is concerned, petitioner No.1 being the wife is entitled for 70% and petitioners No.2 to 4 being the children and mother are entitled for 10% each of the amount awarded. Hence, the issue No.3 is answered in partly affirmative.
27. Issue No.4: Further as per my above findings on issues No.1 to 3 and with regard to awarding the interest is concerned, the petitioners No.1 to 4 are entitled for simple interest at the rate of (SCCH3) 19 M.V.C.No.1438/20 6% per annum from the date of petition till deposit. As such I proceed to pass the following:
ORDER The claim petition filed by the petitioners U/Sec. 166 of the M.V. Act is hereby allowed in part, with costs.
The petitioners No.1 to 4 are entitled for Rs.23,08,515/ (Rupees Twenty three lakhs eight thousand five hundred and fifteen only) i.e., 90% of Rs.25,65,016/ with interest at 6% p.a from the date of petition till the date of deposit.
The respondents No.1 and 2 are jointly and severally liable to pay the compensation to the petitioners. However, in view of valid insurance policy, respondent No.2 Insurance Company is directed to pay the 90% total awarded amount and shall deposit the same within time stipulated under section 168(3) of M.V. Act and the petitioners are directed to borne out 10% i.e., Rs.2,56,501/ for the contributory negligence of the deceased.
On deposit of the compensation amount with interest, petitioner No.1 is entitled for 70% of (SCCH3) 20 M.V.C.No.1438/20 compensation, the petitioners No.2 to 4 are entitled for 10% each of compensation as awarded.
Out of the share amount of petitioner No.1 along with interest accrued, 40% of the amount shall be deposited in her name in any nationalized or schedule bank for a period of three years and the remaining 60% each amount shall be released to her through Epayment on proper identification without any further proceedings. However, Pw.1 is at liberty to withdraw the periodical interest accrued on the deposit amount from time to time.
Out of the share amount of petitioners No.2 and 3 along with interest accrued, entire amount shall be deposited in their names in any nationalized or schedule bank till they attained age of majority, on proper identification. However, the petitioner No.1 is at liberty to withdraw the periodical interest accrued on their deposit amount from time to time and to use the same for the benefit of the minor petitioners No.2 and 3.
Out of the share amount of petitioner No.4 along with interest accrued, entire amount shall be released to her through Epayment on proper identification without any further proceedings.
(SCCH3) 21 M.V.C.No.1438/20 Advocate fee is fixed at Rs.1,00000.
Draw award accordingly.
(Dictated directly to the Stenographer on computer, got typed by him, corrected and then pronounced by me in open court, on this the 10th day of October 2022).
(SHILPA.K.S) VII Addl. Judge and ACMM, Bengaluru.
ANNEXURE List of witnesses examined for the petitioners:
P.W.1 Ningamma P.W.2 Manjunath P.W.3 Ramegowda List of documents marked on behalf of the petitioners: Ex.P.1 Copy of FIR Ex.P.2 Copy of Complaint Ex.P.3 Copy of PF memo Ex.P.4 Copy of Spot Mahazar Ex.P.5 Copy of Inquest report Ex.P.6 Copy of Post mortem report Ex.P.7 Copy of IMV report Ex.P.8 Copy of Charge sheet Ex.P.9 Letter issued by Modicare Company
showing salary details of deceased Shivananjegowda Ex.P.10 Notarized copy of ID card of deceased Shivananjegowda (SCCH3) 22 M.V.C.No.1438/20 Ex.P.11 Notarized copy of Aadhaar card of deceased Shivananjegowda Ex.P.12 to Notarized copy of Aadhaar cards of P.W.1 15 and petitioners No.2 to 4 Ex.P.16 Notarized copy of driving licence of deceased Shivananjegowda Ex.P.17 Copy of Form 26 AS Ex.P.18 Account extract of SBI Ex.P.18(a) Entry of Rs.11,000/ and Rs.5,000/ in Ex.P.18 Ex.P.18(b) Entry of 06 payments in Ex.P.18 Ex.P.19 Letter of Modicare showing the details of income of deceased Ex.P.20 Notarized copy of ID card of P.W.2 Ex.P.21 Notarized copy of Aadhaar card of P.W.3 Ex.P.22 Three photos Ex.P.22(a) CD Ex.P.23 Certificate Ex.P.24 Bengaluru Vijaya Newspaper dt:15012008 Ex.P.25 True copy of Sketch Ex.P.26 Salary certificate List of witnesses examined for the Respondents:
Nil List of documents marked on behalf of the Respondents:
Nil (SHILPA.K.S) VII Addl. Judge and ACMM, Bengaluru.