Bangalore District Court
Rajani D vs The United India Insurance on 11 September, 2015
Before the Motor Accident Claims Tribunal at Bangalore
(SCCH-8)
Present: Shri P.J. Somashekar B.A., LL.B.,
XII Additional Small Causes Judge
and Member, M.A.C.T., Bangalore.
Dated this the 11th day of September 2015
M.V.C.No.3695/2014
Petitioners 1. Rajani D.,
Wife of Late Vinod Kumar K.T.,
Aged about 32 years,
2. Surabhi Vinod K.T.
Daughter of Late Vinod Kumar
K.T.
Aged about 10 years,
3. Shri Govindan Nair,
Aged about 75 years,
4. Smt.Nalini,
Wife of Govindan Nair,
Aged about 55 years,
All are residing at No.5, Pulari,
Pipeline Road, Near Sai Ashram,
Soladevanahalli,
Chikkabanavara Post,
Bengaluru.
(Shri B.R.Srinath, Advocate)
Vs.
Respondents 1. The United India Insurance
Co.Ltd.,
Regional Office, Krishi Bhavana,
Hudson Circle,
2 (SCCH-8) M.V.C.No.3695/2014
Bengaluru (Insurer)
Policy
No.070381/31/13/02/00008758
valid from 4.1.2014 to 3.1.2015.
Vehicle No.CAA 6150.
(Shri Janardhan Reddy, Advocate)
2. Pape Gowda,
No.42, Peenya 1st Main,
2nd 'A' cross,
Havanur Extension,
Bengaluru (Insured)
(Shri Vishveshwaraiah L.
Advocate)
JUDGMENT
This is a claim petition filed by the petitioners against the respondents under Section 166 of Motor Vehicles Act, 1989, for seeking compensation of Rs.1,00,00,000/- for the death of Vinod Kumar K.T. in a road traffic accident.
2. The brief facts of the claim petition are as under; The petitioners said to be the legal heirs and financial dependents of the deceased Vinod Kumar K.T. in their claim petition, were alleged that, on 12.8.2014 at about 8.30 a.m., Vinod Kumar K.T., was proceeding in a motor cycle bearing registration No.KA-04-ES-4638 on 3 (SCCH-8) M.V.C.No.3695/2014 Heasaraghatta main road, from Chikkabanavara towards Bagalugunte, slowly and cautiously by observing all traffic rules and regulations, when he was reached Mallasandra newly constructing BMTC bus stand, the driver of the water tanker bearing No.CAA 6150 was drove the same in a rash and negligent manner and dashed against the motor cycle from behind. As a result, he was fell down and sustained grievous injuries. So, immediately he was shifted to Sapthagiri hospital, wherein he took the first aid treatment later on he was shifted to Columbia Asia hospital for better treatment, while treatment he was succumbed due to the accidental injuries and again body was shifted to Sapthagiri hospital for post mortem, after conducting the postmortem the body was handing over to them and they were shifted the body to their native place and performed the religious rites and traditional formalities by spending huge amount.
4 (SCCH-8) M.V.C.No.3695/2014
3. Prior to the accident the deceased Vinod Kumar was hale and healthy working as Accounts Manager at M/s TIA Technologies by getting monthly salary of Rs.50,000/- and contributing the entire earnings to his family. Due to the untimely death, they were put into deep mental shock and agony and they lost the love and affection. The accident in question was taken place on account of rash and negligent driving of the water tanker driver. Thereby, Peenya Police have registered the case against the water tanker driver in their police station crime No.151/2014 for the offences punishable u/s 279 and 304(A) of IPC and S. 134(A) & (B) R/w S. 187 of IMV Act. The respondent No.1 is the insurer and respondent No.2 being the owner are jointly and severally liable to pay the compensation and prays for allow the claim petition.
4. In response of the notice, the respondents were appeared through their respective counsel and filed the independent written statement.
5 (SCCH-8) M.V.C.No.3695/2014
5.The respondent No.1 being the insurer of the offending vehicle has filed its written statement in which has alleged that claim petition filed by the petitioners is not maintainable either in law or on facts but he has admitted about the issuance of the policy in respect of the offending vehicle infavour of second respondent and the policy was valid from 4.1.2014 to 3.1.2015 and its liability is subject terms and conditions of the policy and either the owner of the vehicle nor the jurisdictional police have not complied the mandatory provisions of S. 134© and S. 158(6) of the M.V. Act in furnishing the better particulars and he has alleged that as on the date of the alleged accident the offending vehicle driver was not holding valid and effective driving licence to drive the water tanker and the second respondent being the owner has entrusted the vehicle to the person who was not holding valid and effective driving license and he has contravened the terms and conditions of the policy and the vehicle was not having a permit and FC and not at all 6 (SCCH-8) M.V.C.No.3695/2014 involved the in alleged accident. The petitioners in colluding with the police have created the documents and falsely implicated the vehicle in order to get the compensation and the alleged accident was occurred on account of rash and negligent riding of the deceased as he was suddenly stopped the vehicle in the middle of the road without any indication to the offending vehicle and met with an accident and he has denied the column Nos. 1 to 6, 10 to 14 and 22 of the claim petition and he has also denied that the deceased was proceeding on his motor cycle, the driver of the offending vehicle came with high speed in a rash and negligent manner dashed against the motor cycle, as a result the deceased was fell down and sustained grievous injuries, so he was shifted to Sapthagiri hospital, wherein he took the first aid treatment later on he was shifted to Columbia hospital, wherein he was succumbed due to the accidental injuries and he has also denied the age, avocation and income of the deceased. The petitioners have not furnished the 7 (SCCH-8) M.V.C.No.3695/2014 details of the amount which they have received out of accident benefit scheme and prays for reject the claim petition.
6.The respondent No.2 being the owner of the vehicle in his written statement has alleged that the claim petition filed by the petitioners is not maintainable in law or on facts and has alleged that the driver of the water tanker was proceeding in a slow manner and he was not driving the said vehicle at a high speed, when he was reached near MEI Layout suddenly the deceased came from back side and dashed the water tanker. So the accident was not occurred on account of rash and negligent driving of the offending vehicle driver as the deceased has suddenly came behind the water tanker and dashed the vehicle and fell down and sustained grievous injuries and prays for reject the claim petition.
7. On the basis of the pleadings of the parties the following issues are framed.
1. Whether the petitioners prove that deceased Vinod Kumar K.T. died in a 8 (SCCH-8) M.V.C.No.3695/2014 road traffic accident on 12.8.2014 at about 8.30 a.m. near MEI layout, Hesaraghatta main road, Peenya, Bengaluru due to the rash and negligent driving of the driver of the water tanker bearing registration No.CAA-6150?
2. Whether petitioners are entitled for any compensation? If so to what extent and from whom?
3. What Order or Award?
8. The petitioners in order to prove their claim petition, the petitioner No.1 has examined herself as PW1 and got marked the documents as Ex.P1 to Ex.P24 and they have examined one witness on their behalf as PW2 and got marked the documents as Ex.P25 to Ex.P32. The respondent No.2 has examined himself as RW1 and the driver of the water tanker has examined as RW2. The first respondent has examined its administrative officer as RW3 and got marked the document as Ex.R1.
9. Heard arguments on both side.
9 (SCCH-8) M.V.C.No.3695/2014
10. My finding on the above issues are as under:
Issue No.1: Affirmative
Issue No.2: Partly affirmative
Issue No.3: As per the final order for the
following.
REASONS
11.Issue No.1:
The petitioners being said to be the legal heirs and financial dependents of the deceased were approached the court on the ground that on 12.8.2014 at about 8.30 a.m., Vinod Kumar K.T., was proceeding in a motor cycle bearing registration No.KA-04-ES-4638 on Heasaraghatta main road, from Chikkabanavara towards Bagalugunte slowly and cautiously by observing all traffic rules and regulations, when he was reached near Mallasandra newly constructing BMTC bus stand, the driver of the water tanker bearing No.CAA 6150 was drove the same in a rash and negligent manner and dashed against the 10 (SCCH-8) M.V.C.No.3695/2014 motor cycle from behind. As a result, he was fell down and sustained grievous injuries. So, he was shifted to Sapthagiri hospital, wherein he took the first aid treatment later on he was shifted to Columbia Asia hospital for better treatment, while treatment he was succumbed due to the accidental injuries. Thereby the petitioners have filed the instant claim petition against the respondents.
12. The petitioners in order to prove their claim petition, the petitioner No.1 being said to be the wife of the deceased has filed her affidavit as her chief- examination as PW1, in which she has stated that on 12.8.2014 at about 8.30 a.m., her husband was proceeding in a motor cycle bearing registration No.KA- 04-ES-4638 on Heasaraghatta main road, from Chikkabanavara towards Bagalugunte slowly and cautiously by observing all traffic rules and regulations, when he was reached near Mallasandra newly constructing BMTC bus stand, the driver of the water 11 (SCCH-8) M.V.C.No.3695/2014 tanker bearing No.CAA 6150 was drove the same in a rash and negligent manner and dashed against the motor cycle from behind. As a result, her husband was fell down and sustained grievous injuries. So, immediately he was shifted to Sapthagiri hospital, wherein he took the first aid treatment later on he was shifted to Columbia Asia hospital wherein her husband was succumbed due to the accidental injuries. The accident in question was taken place on account of rash and negligent driving of the water tanker bearing registration No.CAA-6150. Thereby, Peenya Traffic Police have registered the case against the water tanker driver in their police station crime No.151/2014 for the offences punishable u/s 279 and 304(A) of IPC and S. 134(A) & (B) R/w S. 187 of IMV Act. The PW1 in her cross examination has denied that as on the date of alleged accident her husband has rode the motor cycle in a rash and negligent manner, so, on his own negligence the accident was occurred and sustained injuries. But 12 (SCCH-8) M.V.C.No.3695/2014 she has admitted that motor cycle belongs to her husband and the traffic police have informed through phone about the accident and she has denied that her husband while proceeding in a motor cycle has ridden the same with high speed and suddenly applied the break and fallen from the bike and sustained grievous injuries.
13. The petitioners in support of the oral evidence have produced the documents marked as Ex.P1 to Ex.P32. Ex.P1 is the information filed by one Rangarasaiah P.C. No.8597 of Peenya Traffic police Station in which has stated that on 12.8.2014 he has been deputed to SARS. So, he was proceeding towards Vijayanaga Shree School on MEI road, at about 8.30 a.m. one motor cycle was proceeding on Hesaraghatta Main road, the driver of the water tanker bearing No.CAA 6150 was came with high speed in a rash and negligent manner and dashed against the scooter, as a result the motor cyclist was fell down and water tanker has dragged 13 (SCCH-8) M.V.C.No.3695/2014 him. So, on seeing the accident the publics who were shouted and the water tanker driver has stopped the water tanker and ran away from the spot. So, immediately with the assistance of the publics has shifted the injured to the Sapthagiri hospital. On enquiry he came to know that the injured name as Vinod Kumar K.T. Son of Govinda Nair T., No.5, Pujari Pipeline road, Sooladevanahalli, Bengaluru. So, the accident was occurred on account of rash and negligent driving of the water tanker driver. Thereby Peenya Police have registered the case against the water tanker driver in their police station crime No.151/2014 for the offences punishable u/s 279, 337 of IPC and S. 134(A) & (B) R/w S. 187 of IMV Act. Initially case has been registered for the offences punishable u/s 279 and 337 of IPC and S. 134(A) & (B) of R/w S. 187 of IMV Act, after the death of deceased case has been registered for the offences punishable U/s 279, 337 and 304(A) of IPC. Though the learned counsel for the respondent has cross examined 14 (SCCH-8) M.V.C.No.3695/2014 the PW1, but nothing is elicited to disbelieve her evidence. Though, he has suggested the PW1 that the accident in question was taken place on account of rash and negligent riding of her husband as her husband suddenly applied the break in the middle of the road, on his own negligence he was fell down and sustained grievous injuries, for which she has denied the same.
14.The respondent No.2 has examined the driver of the water tanker in his evidence has stated that on 12.8.2014 he was the driver of the water tanker bearing No.CAA 6150 proceeding slowly and cautiously by observing the traffic rules and regulations, the rider of the scooter ridden the same in a rash and negligent manner came from behind that too wrong side of the water tanker and over take from left side and dashed right side portion of the scooter to his tanker for back wheel and fell down and sustained the injuries in a self accident and he was succumbed in the hospital. The accident was occurred on account of negligence of the 15 (SCCH-8) M.V.C.No.3695/2014 deceased. But in his cross-examination has admitted that he went to police station to lodge the complaint but the police have refused to receive the complaint. If at all the accident was occurred on account of rash and negligent riding of the deceased and the police have refused to receive the complaint from the RW2 who is the driver of the offending vehicle nothing is prevented to file the private complaint before the Criminal Court nor bring the said facts to the notice of the concerned higher authority on the ground that the concerned police have refused to receive the complaint. Except say of RW2 nothing is placed on record to show that he has lodged the complaint before the police, but police have refused to receive the same. In the absence of the materials on record it is very difficult to believe the evidence of the RW2, on the ground that the accident was taken place on account of rash and negligent riding of the deceased and the police have refuse to receive the complaint. So, nothing is placed to substantiate the defence of the 16 (SCCH-8) M.V.C.No.3695/2014 respondent. The RW1 being the owner of the offending vehicle in his evidence has stated that the driver of the offending vehicle has contacted through phone and he went to the spot and came to know that the accident was occurred on account of rash and negligent riding of the rider of the motor cycle as it is self accident. Thereby he went to police station to lodge the complaint, but the police have refused to receive the complaint. But nothing is placed on record to show that they went to police station to lodge the complaint, but the police have refused to receive the complaint. If at all the concerned police have refused to receive the complaint either from the RW1 or from the driver of the offending vehicle nothing is prevented to lodge the private complaint or sent the copy of the complaint to higher authority. In the absence of the materials on record, it is clear that the accident was occurred on account of rash and negligent driving of the offending vehicle driver. Ex.P4 and Ex.P5 are the panchanama and sketch drawn by the I.O. clearly 17 (SCCH-8) M.V.C.No.3695/2014 reflects that the rider of the motor cycle was proceeding towards Mallasandra Pipeline i.e., from North to South on the extreme eastern side of the road and the driver of the offending vehicle was also proceeding in the same direction in the middle of the road, but the reasons best known to him has took the water tanker towards extreme eastern side where the deceased was proceeding on his motor cycle. So, he dashed against the motor cycle and the deceased was fell down and sustained grievous injuries as the informant being the P.C. of Peena traffic police in his information has clearly stated that the accident was occurred on account of rash and negligent driving of the offending vehicle driver as the driver hit the motor cycle and the water tanker has dragged the deceased, so the publics on seeing the accident were shouted, thereby water tanker driver has stopped the vehicle and ran away from the spot. That itself is clear that the accident was occurred on account of rash and negligent driving of the driver of the offending vehicle. 18 (SCCH-8) M.V.C.No.3695/2014 Though there is sufficient space towards western side of the road to avoid the accident, but the reasons best known to him did not taken minimum care to avoid the accident. If at all he has taken minimum care he would have saved the life of the deceased. So, on his own negligence the accident was occurred and the deceased was succumbed due to the accidental injuries. So, Ex.P1, Ex.P2, Ex.P4 and Ex.P5 are corroborate the evidence of PW1 and support the case of the petitioners. Ex.P7 is the final report clearly reflects that the I.O has conducted the investigation and found the accident was taken place on account of rash and negligent driving of the offending vehicle driver, that is the reason why he has charge sheeted against the offending vehicle driver. It at all the I.O has filed the false charge sheet against the offending vehicle driver either the respondent No.1 nor the driver of the offending vehicle would have challenged the final report filed against the offending vehicle driver . So, in the absence of the materials on 19 (SCCH-8) M.V.C.No.3695/2014 record Ex.P1, Ex.P2 and Ex.P7 are remained unchallenged. Ex.P8 and Ex.P9 are clearly reflects that the deceased was sustained grievous injuries in a road traffic accident said to have been taken place on 12.8.2014 and succumbed while treatment at Columbia hospital. So, the documents marked as Ex.P1 to Ex.P32 are coupled with the oral evidence of PW1. The petitioners have proved their case through oral and documentary evidence that the accident in question was occurred on account of rash and negligent driving of the offending vehicle driver. The learned counsel for the respondent while canvassing his arguments has much argued that there is contributory negligence on the part of the rider of the motor cycle as the deceased has contributed for the cause of accident as he took the motor cycle towards wrong side and over take the vehicle and dashed against the water tanker, so on his own negligence the accident was occurred and he has suddenly applied the break and fallen from the motor 20 (SCCH-8) M.V.C.No.3695/2014 cycle and sustained grievous injuries and the petitioners in colluding with the police have falsely implicating the vehicle in order to get the compensation. But nothing is established through oral and documentary evidence to prove that the deceased has contributed for the cause of accident and there is contributory negligence on his part also for the cause of accident.
15.The learned counsel for the respondent No.1 has drawn the court attention on the judgement of the Hon'ble High Court reported in 2009 ACJ 551 in between Rajni Soni and others Vs. Hemraj and others, on careful perusal of the said decision, in the said decision tractor and trolley was left on the high way without any indicator or any signal dashed against it from behind and sustained fatal injuries and the driver of the tractor-trolley has admitted that he has stationed his tractor-trolley as its tyre was punctured but no evidence that he parked it properly with some indicators and witness in their evidence have deposed that there was 21 (SCCH-8) M.V.C.No.3695/2014 darkness and trucks were coming from opposite direction, so the deceased could not see the parked vehicle, though the tribunal held that both the deceased and the tractor driver were equally negligence, but on the other hand Hon'ble High Court held that there was no contributory negligence of the deceased. The driver of the tractor-trolley was solely responsible for the accident.
16.In the instant case it is not the case of the first respondent that the deceased has parked the motor cycle without indicator nor signal. But it is the specific case of the first respondent that the deceased has took the two wheeler in a wrong side and over take the offending vehicle and he himself touched the offending vehicle and fell down from the bike. Thereby he has sustained injuries and he has also took the defence that the rider of the motor cycle has ridden the same in a rash and negligent manner and suddenly applied the break and fell down and sustained grievous injuries as it is a self accident. But the first respondent has not established its 22 (SCCH-8) M.V.C.No.3695/2014 defence through oral and documentary evidence. Therefore, I do respect to the decision relied by the learned counsel for the respondent, but the above said decision is not applicable to the case on hand.
17.The learned counsel for the respondent No.1 has drawn the court attention on the judgement of the Hon'ble High Court reported in 2009(2) TAC II (S.C.) in between Usha Rajkhowa and others Vs. Paramount Industries and others. On careful perusal of the said decision but the facts and circumstances of the above decision and the present case are entirely different. So, the above said decision is not applicable to the case on hand.
18.Thus, looking from any angle the respondents have not proved their defence through oral and documentary evidence to disbelieve the oral and documentary evidence of the petitioner as the petitioners have proved their case through oral and documentary evidence that the accident was occurred on account of 23 (SCCH-8) M.V.C.No.3695/2014 rash and negligent driving of the offending vehicle driver. Hence, I am of the opinion that the issue No.1 is answered as affirmative.
19. Issue No.2:
The PW1 being said to be the wife of the deceased in her evidence has stated that prior to the accident her husband was hale and healthy working as Manager- Accounts at M/s TIA Technology, Bengaluru by getting monthly salary of Rs.46,000/- and he was contributing the entire earning to the family members. Due to the untimely death of her husband, they were deprived of the contributions to the family and they became put into deep mental shock and agony and they lost the love and affection and earning member of the family and they were also put to financial hardship because of untimely death of her husband. Herself and the other petitioners are the financial dependents of the deceased, as she is the beloved wife of the deceased and the second petitioner is none other than their minor son and petitioner No.3 and 24 (SCCH-8) M.V.C.No.3695/2014 4 are the parents of the deceased. PW1 in her cross-
examination has admitted that as on the date of alleged accident her husband was working at Ms TIA Technology as Accounts Manager. But she has denied that she has created the Ex.P15 to Ex.P17 to show that her husband was working as a manger in the Accounts Branch. But she has admitted that her husband was working in TIA Technologies since seven years and she has admitted that they have received the amount which was spent towards treatment of her husband from the company. But she has pleaded ignorance about the amount received under the Group Insurance Policy.
20.PW2 being the Director at M/s TIA Technology India Private Limited, in his evidence has stated that deceased prior to the accident was working as a manager of Accounts in their company by drawing monthly salary of Rs.46,000/-, but he met with an accident and succumbed due to the accidental injuries. The company has paid Rs.2,67,508/- towards gratuity and 25 (SCCH-8) M.V.C.No.3695/2014 Rs.1,82,643/- towards provident fund. But PW2 in his cross-examination has admitted that TIA Technologies is private company and the employees who are working in the said company are not the permanent employees. In all 38 employees working in the said company and the company is paying income tax and there is a separate department to look out the HRD, one Shivaprakash was the supervisor of the HRD and he has denied that they were deducting the amount out of the salaries of the employee for Group Insurance and he has stated that there was no Group Insurance Policy in the said company and he has denied that he has created the documents and placed it before the court with an intention to help the petitioners to get more compensation.
21.The PW1 being said to be the wife of the deceased in her evidence has clearly stated that prior to the accident her husband was working as a Manager in the Accounts at M/s TIA Technologies by getting monthly 26 (SCCH-8) M.V.C.No.3695/2014 salary of Rs.46,000/-. Though the petitioners in their claim petition have shown the monthly salary of the deceased as Rs.50,000/-. But PW1 in her chief- examination has categorically admitted that prior to the accident her husband was getting monthly salary of Rs.46,000/-. Though the learned counsel for the respondent while cross-examination of PW1 has suggested that her husband was not working as a manager of Accounts nor getting monthly salary of Rs.46,000/- for which she has denied the same. PW2 being the Director of TIA Technologies in his evidence has clearly stated that prior to the accident deceased was working as a manager of accounts in their company by getting monthly salary of Rs.46,000/-. Though the learned counsel for the respondent has cross-examined the PW1 & 2 but nothing is elicited to disbelieve their oral and documentary evidence that prior to the accident the deceased was not working as a Manager of Accounts at TIA Technologies by getting monthly salary of 27 (SCCH-8) M.V.C.No.3695/2014 Rs.46,000/-. The Ex.P15 is the appointment order issued by the TIA Technologies to the deceased in which it is clear that TIA Technologies has been appointed the deceased as a Manager of Accounts. That is the reason why the PW1 & 2 have clearly stated in their evidence that prior to the accident the deceased was working as a Manager-Accounts at TIA Technologies by getting monthly salary of Rs.46,000/-. So, Ex.P15 is coupled with the oral evidence of PW1 & 2. Ex.P16 and Ex.P17 are clearly reflects that prior to the accident the deceased was working as a Manager-Accounts at TIA Technologies by getting monthly salary of Rs.46,000/-. Ex.P18 to Ex.P21 clearly reflects that the deceased was paying income tax as he is income tax assessee. Ex.P22 is the bank statement in which it is clear that the deceased initially was drawing salary of Rs.34,020/- and in the month of July 2014 has received salary of Rs.40,000/-. Ex.P16 & Ex.P17 reflects that the total gross salary of the deceased of Rs.46,000/- and take home salary is of 28 (SCCH-8) M.V.C.No.3695/2014 Rs.40,020/-. So, one thing is clear from the oral and documentary evidence that prior to the accident the deceased was working as a Manager-Accounts at TIA Technologies by getting monthly salary of Rs.46,000/-. The respondent has not placed any materials on record to show that prior to the accident the deceased was not working as a Manager-Accounts at TIA Technologies by getting monthly salary of Rs.46,000/-. On the other hand, the petitioners have placed oral and documentary evidence on record to show that prior to the accident the deceased was working as a Manager-Accounts at TIA Technologies by getting monthly salary of Rs.46,000/- as the PW2 being the Director of the Company has clearly stated that prior to the accident the deceased was working as a Manager-Accounts at TIA Technologies by getting monthly salary of Rs.46,000/-. So, his evidence corporative the evidence of PW1. Therefore, monthly income of the deceased is taken into consideration as Rs.46,000/-. Ex.P28 to Ex.P32 clearly reflects that the 29 (SCCH-8) M.V.C.No.3695/2014 company is maintaining the attendance register and paying salary to their respective bank accounts of the employees who are working in the said company. So, Ex.P28 to 32 reveals that prior to the accident the deceased was working as a Manager-Accounts at TIA Technologies by getting monthly salary of Rs.46,000/-. Ex.P35 clearly reflects that TIA Company is paying income tax. So, the documents marked as Ex.P25 to Ex.P35 coupled with the oral evidence of PW1 and 2. Ex.P13 and Ex.P14 are clearly reflects that the petitioner Nos. 1 & 2 are none other than the wife and daughter of the deceased. Ex.P9, 11 and 12 are reflects that the petitioner Nos.3 & 4 are none other than the parents of the deceased. Though the learned counsel for the respondents have cross-examined the PW1 & 2 but nothing is elicited to disbelieve the relationship of the petitioners with the deceased. So, oral and documentary evidence on record reflects that the petitioners are being the wife, daughter and parents of the deceased. Ex.P9 to 30 (SCCH-8) M.V.C.No.3695/2014 Ex.P12 are reflects that the deceased was born on 21.5.1973. The accident was occurred on 12.8.2014. So, as on the date of alleged accident the deceased was aged about 41 years. The petitioners in their claim petition have shown the age of the deceased as 42 years, but own documents placed before the court reflects that as on the date of alleged accident, the deceased was aged about 41 years. So, the deceased age is taken into consideration as on the date of alleged accident as 41 years. So, admittedly the petitioner Nos. 1 to 4 are none other than the wife, daughter and parents of the deceased. So by virtue of decision reported in 2009 ACJ 1298 in between Sarla Verma and others Vs. Delhi Transport Corporation and another, where the number of dependant family members 4 to 6 the personal and living expenses of the deceased should be 1/4th. In the instant case there are four legal heirs and financial dependants of the deceased. So, ¼ has to be deducted towards personal and living expenses of the deceased out of the 31 (SCCH-8) M.V.C.No.3695/2014 annual income. So, after deduction of ¼ out of the yearly income of Rs.5,52,000/- (Rs.46,000X12X3/4) it comes to Rs.4,14,000/-. So, as per Sarlaverma Vs. Delhi Transportation Corporation Ltd., the multiplier applicable to the deceased is 14. So Rs.4,14,000X14=Rs.57,96,000/- towards loss of dependency. So the petitioners are entitled for the said amount towards loss of dependency.
22. The first petitioner is none other than the wife of the deceased has lost her husband at the age of 32 years. So, Rs.1,00,000/- is awarded for the loss of consortium and Rs.1,00,000/- is granted under the head of loss of love and affection and care taker of the petitioners No.1 and 2. The petitioner Nos. 3 & 4 are the aged parents of the deceased they lost the love and affection and caretaker during their oldage. Thus, Rs.20,000/- is awarded for the loss of love and affection. The petitioners in their claim petition were stated that they have shifted the body to their native place Kerala. So, Rs.30,000/- is 32 (SCCH-8) M.V.C.No.3695/2014 granted for transportation of deadbody, funeral and obsequies.
23. Thus, the total award stands as follows:
1.Loss of dependency Rs.57,96,000-00
2.Loss of consortium Rs. 1,00,000-00
3.Loss of love and affection Rs. 1,00,000-00
4.Loss of love and affection Rs. 2,00,000-00 and care taking to the old aged parents
5.Transportation of dead Rs. 30,000-00 body and funeral expenses Total Rs.62,26,000-00
24. The respondent No.1 being the insurer of the offending vehicle in its written statement has admitted about the issuance of the policy and the period of policy from 4.1.2014 to 3.1.2015. Ex.R1 is the policy copy clearly reflects about the period of policy from 4.1.2014 to 3.1.2015. The accident was occurred on 12.8.2014. So, as on the date of alleged accident the policy was in existence.
25.The learned counsel for the respondent while canvassing his arguments has submitted that the accident was occurred on account of rash and negligent 33 (SCCH-8) M.V.C.No.3695/2014 riding of the rider of the motor cycle i.e., the deceased. But the respondents have failed to establish their case through oral and documentary evidence about the negligence on the part of the deceased nor contributory negligence. The learned counsel for the respondent No.2 while canvassing his arguments has submitted that as on the date of alleged accident the driver of the offending vehicle has drove the same slowly and cautiously by observing all the traffic rules and regulations. But the deceased being the rider of the motor cycle has drove the same in a rash and negligent manner and dashed against the water tanker. So, on his own negligence the accident was occurred. But, the respondent No.2 has failed to establish the said fact through oral and documentary evidence that the accident was occurred on account of riding of the deceased. In the absence of the materials on record the arguments advanced by the learned counsel for the 2nd respondent holds no water.
34 (SCCH-8) M.V.C.No.3695/2014
26. The learned counsel for the respondent No.1 while canvassing his arguments has submitted that the company has paid Rs.2,67,508/- and Rs.1,82,643/-. So, that amount has to be deducted out of the compensation amount. It is an admitted fact the PW2 being the Director of M/s TIA Technology India Private Limited, in his chief-examination itself has admitted that the company has paid Rs. 2,67,508/- towards Gratuity and Rs.1,82,643/- towards P.F. The learned counsel for the respondent No.1 has drawn the court attention on the judgement of the Hon'ble High Court passed in MFA 1425/2007 in between Sree Priya B.S. and others Vs. S.V.Suresh and another. In the said judgement claimants were challenged the award passed by the Tribunal and sought for enhancement of the compensation and the learned counsel for the respondent No.2 being the insurer has taken up the contention that the deceased prior to the accident was the employee of H.P.Global Software Limited, wife and mother have 35 (SCCH-8) M.V.C.No.3695/2014 received in all Rs.9,00,000/- towards death claim settlement through employer of the deceased as the employer insures his employee as against the injury or death arising out of accident. So, amount which was paid by the company to be deducted out of the compensation amount to be awarded infavour of the petitioners. On perusal of the said judgement I do respect to the judgment but in the said judgement the deceased was the employee of the H.P.Global Software and the employer insures his employee as against the injury or death, wife of the deceased and the mother have received the amount of Rs.9,00,000/- towards death claim settlement. Through employer from Insurance.
27.In the instant case the PW2 evidence clearly reflects that the company has paid amount of Rs.2,67,508/- towards gratuity and Rs.1,82,643/- towards P.F. which was deducted out of the salary while in the service. So, the amount as stated by the PW2 is not paid by the insurer it is paid by the employer which 36 (SCCH-8) M.V.C.No.3695/2014 was deducted through employment out of the salary. So, I do respect to the judgement relied by the learned counsel for the first respondent, but the facts and circumstances of the present case and the above judgement are different.
28.The learned counsel for the second respondent has drawn the court attention on the decision reported in ILR 1997 KAR 292 in between United India Insurance Co.Ltd. Vs. K.N.Thipperudraiah and others. On careful perusal of the said judgement in the said judgement the respondents being the claimants were traveling in the employer's vehicle met with an accident suffering from injuries, the accident was occurred during the course of employment. So, the claim petition under M.V. Act is not maintainable. But it is not the case of the petitioners as appeared in the decision relied by the learned counsel for the first respondent. Therefore, I do respect to the decision, but the facts and circumstances of the above decision and the case on hand are different. The first 37 (SCCH-8) M.V.C.No.3695/2014 respondent has taken up the contention that as on the date of alleged accident the offending vehicle driver was not holding valid and effective driving licence, but the reasons best known to the respondent No.1 has not placed any materials nor examined any authority to show that as on the date of the alleged accident the offending vehicle driver was not holding valid and effective driving licence and moreover Ex.P7 is the charge sheet filed by the I.O., nowhere discloses that the offending vehicle driver was not holding valid and effective driving licence as on the date of alleged accident. If at all the offending vehicle driver was not holding the valid and effective driving licence the I.O., would have charge sheeted against the offending vehicle driver for the offence punishable under Section 181 of MV Act. So on record there is no material to show that the offending vehicle driver was not holding valid and effective driving licence as on the date of the alleged accident, that itself is clear that as on the date of the alleged accident the offending 38 (SCCH-8) M.V.C.No.3695/2014 vehicle driver was holding valid and effective driving licence. So one thing is clear that as on the date of the alleged accident the policy was in existence and the offending vehicle driver was holding valid and effective driving licence. Therefore, the respondent Nos.1 and 2 being the insurer and owner are jointly and severally liable to pay the compensation. But in view of the valid insurance policy the respondent No.1 alone is liable to pay the compensation to the petitioners with interest at 8% p.a. in view of the decision of the Hon'ble Supreme Court reported in 2012 (5) KAR LJ 292 in between Laxman @ Laxman Mourya vs. Divisional Manager, Oriental Insurance Co. Ltd., and another from the date of petition till its realization. In the result, the issue No.2 is answered as partly in the affirmative.
29. Issue No.3:
In view of my finding on issue Nos.1 & 2, I proceed to pass the following:
39 (SCCH-8) M.V.C.No.3695/2014 ORDER The petition filed by the petitioners under section 166 of M.V. Act is partly allowed, with costs. The petitioners are entitled for compensation of Rs.62,26,000/- together with interest at the rate of 8% p.a. from the date of the claim petition till its realisation.
The respondent No.1 and 2 are jointly and severally liable to pay the compensation. In view of the valid insurance policy the respondent No.1 being the insurer shall pay the compensation amount with interest at the rate of 8% p.a. from the date of the claim petition till its realisation within a period of 30 days from the date of this order.
On deposit of the compensation amount together with interest, 40% is allotted to the share of petitioner No.1 and 20% each is allotted to the share of petitioner Nos.2 to 4 by way of apportionment of compensation amount.
40 (SCCH-8) M.V.C.No.3695/2014 Out of the share amount of petitioner Nos.1 & 4, 40% of the amount shall be deposited in their names in any nationalised or scheduled bank of their choice for a period of three years and the remaining 60% shall be released to them by means of a/c payee cheque on proper identification. However, they are at liberty to withdraw the periodical interest accrued on their deposit amount from time to time.
Out of the share amount of petitioner No.2 being the minor entire her share amount shall be deposited in any nationalised or scheduled bank till attaining her age of majority. However, the petitioner No.1 being the natural guardian of the petitioner No.2 is at liberty to withdraw periodical interest accrued on her deposit. After attaining her age of majority the entire amount shall be released to her without any further proceedings.
Out of the share of the petitioner No.3 considering his age the entire amount shall be released to him by means of a/c payee cheque on proper identification. 41 (SCCH-8) M.V.C.No.3695/2014 Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
Dictated to the stenographer, transcript thereof, corrected by me and then pronounced in the open court on this 11th day of September 2015.
(P.J. Somashekar), XII Addl. Judge-Member, MACT, Bangalore.
ANNEXURE List of the witnesses examined on behalf of petitioners:
PW1 Shri D.Rajani 9.4.2015 PW2 Binoy K.V. 27.4.2015
List of the documents exhibited on behalf of petitioners:
Ex.P1 True copy complaint Ex.P2 True copy of FIR Ex.P3 Statement of Police Sub-inspector Ex.P4 True copy of Mahazar Ex.P5 True copy of Sketch Ex.P6 True copy of IMV report Ex.P7 True copy of charge sheet Ex.P8 True copy of P> report Ex.P9 True copy of inquest mahazar 42 (SCCH-8) M.V.C.No.3695/2014 Ex.P10 Deceased D.L. Ex.P11 Passport Ex.P12 Election I.D. Ex.P13 Election I.D. Ex.P14 School document Ex.P15 Appoint letter Ex.P16 Pay slip Ex.P17 Pay slip
Ex.P18 Income tax returns for the year 2011-12 Ex.P19 Income tax returns for the year 2012-13 Ex.P20 Income tax returns for the year 2013-14 Ex.P21 Income tax returns for the year 2014-15 Ex.P22 Bank Statement Ex.P23 Election I.D. Ex.P24 Election I.D. Ex.P25 Authorisation letter Ex.P26 Identity card Ex.P27 Pay slip Ex.P28 Bank statement Ex.P29 Bank account statement regarding salary Ex.P30 Receipt of gratuity amount Ex.P31 P.F. Amount receipt Ex.P32 Attendance Register Ex.P33 Submission of Income Tax returns for the year 2013-14 from the TIA Technology 43 (SCCH-8) M.V.C.No.3695/2014 Ex.P34 Submission of Income Tax returns for the year 2013-14 from the TIA Technology Ex.P35 Intimation U/s 143(1) of Income Tax Act, 1961 List of the witnesses examined on behalf of respondents:
RW1 Shri Pape Gowda 13.7.2015 RW2 Shri Hari T.D. 13.3.2015 RW3 Smt.Yamuna 18.8.2015
List of the documents marked on behalf of respondents:
Ex.R1 True copy of policy
(P.J. Somashekar),
XII Addl. Judge-Member, MACT,
Bangalore.