Bangalore District Court
Smt.Veeramma vs Sri.Mahalingaiah.M.H on 7 May, 2015
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
BANGALORE. (SCCH-11)
DATED THIS 7TH DAY OF MAY, 2015
PRESENT: SRI. GANAPATI GURUSIDDA BADAMI, B.A,LL.B(SPL).
I ADDL.SMALL CAUSES JUDGE & XXVII ACMM
M.V.C No.2859/2014
PETITIONERS: 1. Smt.Veeramma,
W/o.Chinna Govindaswamy,
Aged about 50 years.
2. Sri.C.Yuvaraj,
S/o.Chinna Gonvindaswamy,
Aged about 35 years.
Both are residing at:
No-4-205,
M.Bandapalle village,
Puthalapattu Mandalam,
Chittor District.
(By pleader - Sri.S.N.Nagaraja)
- V/S -
RESPONDENTS: 1. Sri.Mahalingaiah.M.H,
S/o.Yellaiah,
# 46/1, 2nd Main Road,
4th Cross, Hosahally,
Vijayanagara,
Bangalore - 560 040.
(Exparte)
2. The Oriental Insurance Co., Ltd.,
Regional office,
Leo Shopping Complex,
Residency Road Cross,
SCCH - 11 2 MVC No.2859/2014
M G Road,
Bangalore - 560 001.
(By pleader - Sri.B.T.Rudra Murthy)
*******
JUDGMENT
Petitioners have filed this claim petition against the respondents claiming the compensation for the death of deceased Chinna Govindaswamy in the road traffic accident.
2) It is averred that, on 28.6.2013 at about 3:00am, the deceased by name Chinna Govindaswamy was walking on the extreme left side of Chittor-Kadapa Road, near M.Bandapalle Village, Puthalapattu Mandalam, Chittor district. At that time, driver of Toyotta Qualis Car bearing No.KA-35-3529 driven the said vehicle in rash and negligent manner endangering human life with high speed and came to the wrong side and dashed to the deceased.
3) Due to said impact, the deceased fell down and sustained grievous injuries and become unconsciousness and immediately he was shifted to Government Head Quarters Hospital Chittor where he had taken treatment and then he was referred to higher hospital for further treatment and on the way to SVRRGG Hospital, Thirupathi, he succumbed to the injuries. The accident taken place due to rash and negligent driving by the driver of offending vehicle.
SCCH - 11 3 MVC No.2859/2014
4) The deceased was aged about 60 years and he was doing coolie by profession and he was earning Rs.10,000/- per month and petitioners were entirely depending upon the earnings of deceased. The deceased was only earning member in the family of the petitioners and after the death of the deceased, the petitioners are not having any means for their livelihood. The petitioners are put to lot of mental agony and untold misery due to sudden demise of deceased. The petitioners have spent Rs.50,000/- towards treatment, medicines and conveyance and Rs.20,000/- towards transportation of dead body and funeral obsequies. The respondent No1 and 2 being owner and insurer of offending vehicle are jointly and severally liable to pay the compensation. Hence the petitioners have claimed the compensation of Rs.10,00,000/- along with interest and costs.
5) Though notice is served upon the respondent No1, he has not appeared and contested the claim petition.
6) Respondent No2 has appeared through counsel and filed Written Statement and denied the contents of claim petition. It is admitted that, respondent No2 is insurer of Toyotto Qualis Car bearing No.KA-35-3529. But the liability of the respondent No2 is subject to the terms and conditions of insurance policy and provisions of Motor Vehicle Act and effective driving licence by the driver of offending vehicle as on the date of the accident. As per section 134(c) of Motor Vehicle Act, it is mandatory duty on the part of respondent SCCH - 11 4 MVC No.2859/2014 no1 to furnish the particulars of vehicular documents like driving licence, permit, fitness certificate and insurance policy to the respondent No2 to seek indemnification and he has failed and neglected to perform statutory obligations to seek indemnification and violated terms and conditions of insurance policy and provisions of Motor Vehicle Act. The respondent No1 has not obtained valid and effective permit to ply the vehicle as on the date of alleged accident and respondent No1 knowingly well this fact plied the said vehicle on the road and thereby violated terms and conditions of insurance policy and provisions of Motor Vehicle Act. The respondent No1 may be permitted to take all defences available under Section 170 of Motor Vehicle Act to urge all grounds available to the insured if he fails to contest the case. As per decision of Hon'ble Supreme Court reported in National Insurance Company Ltd V/s Premabai Patel and others 2005 ACJ 1323, the petitioners have to prove and substantiate that, there was no negligence on the part of the deceased and he was not responsible for the accident. It can be safely gathered from police documents that, the deceased was walking on the road without using footpath and suddenly came on his right side without observing flow of traffic and dashed against the offending vehicle and due to his negligence, the accident taken place and no actionable negligence can be attributed against the driver of offending vehicle and deceased was solely responsible for the accident. As per police documents like FIR and other documents, the deceased was aged 70 years. Therefore it is prayed for dismissal of the claim petition.
SCCH - 11 5 MVC No.2859/2014
7) The petitioner No.2 himself examined as PW-1 and got
marked ExP-1 to 11 and closed the evidence. Though sufficient time has been granted, respondent No.2 has not adduced the evidence and hence respondent side evidence is closed.
8) Heard the arguments of learned counsel for respondent. Though sufficient time has been granted to the petitioner, he has not adduced the evidence and submitted the arguments. Hence petitioner side arguments are taken as not addressed and claim petition is taken for disposal on merits.
9) On the basis of the pleadings of the parties, following issues have been framed:
1. Whether the petitioners prove that, on 28.6.2013 at about 3.00 am., when deceased Chinnagovindaswamy was walking on the extreme left side of Chittor-Kadapa Road, near M.Bandapalle village, Puthalapattu Mandalam, Chittor district, at that time, driver of Toyota quails car bearing No.KA-35-3529 driven the said vehicle from Chittor side towards Kadapa in rash and negligent manner endangering human life with high speed and dashed to the Chinnagovindaswamy who succumbed to the injuries on the spot?
2. Whether respondent No.2 proves that, as on the date of the accident, offending vehicle was plied on the road without valid permit and the respondent No.1 violated terms and conditions of insurance policy?
3. Whether the petitioners are entitled for the compensation as prayed in the petition? If so, SCCH - 11 6 MVC No.2859/2014 what is quantum of compensation and from whom?
4. What order or award?
10) My findings on the above issues are as under:
Issue No.1: In the Affirmative.
Issue No.2: In the Negative.
Issue No.3: Partly Affirmative; the petitioner is entitled to compensation of Rs.4,90,000/- with interest @ of 6% p.a. from the date of petition till complete realisation, from respondent No.2.
Issue No.4: As per final order for the following:
REASONS
11) ISSUE No.1:- PW.1has stated in his evidence that, on 28.6.2013 at about 3:00am, he and his deceased father by name Chinna Govindaswamy were walking on the extreme left side of Chittor-Kadapa Road, near M.Bandapalle Village, Puthalapattu Mandalam, Chittor district at that time, driver of Toyotta Qualis Car bearing No.KA-35-3529 driven the said vehicle in rash and negligent manner endangering human life with high speed and came to the wrong side and dashed to his father. He has also stated that, due to said impact, the deceased fell down and sustained grievous injuries and died in the hospital.
12) In the cross examination of PW.1, he has stated that, the tar road at the place of the accident is having width of 30 feet and Qualis Car came from opposite direction and he had not seen the said SCCH - 11 7 MVC No.2859/2014 vehicle prior to the accident. He has also stated that, he was proceeding along with his father on his right side and they were not going by talking with each other. He has denied the suggestion of learned counsel for respondent No.2 that, the accident taken place due to negligence of deceased and not due to negligence on the part of driver of offending vehicle.
13) Petitioners have produced true copy of FIR and complaint which are marked as Ex.P.1 and 2 and they have produced translated version of said documents and as per said documents, on 28.6.2013 at about 3:00am, the deceased by name Chinna Govindaswamy was walking on the extreme left side of Chittor-Kadapa Road, near M.Bandapalle Village, Puthalapattu Mandalam, Chittor district, at that time, driver of Toyotta Qualis Car bearing No.KA-35-3529 driven the said vehicle in rash and negligent manner endangering human life with high speed and came to the wrong side and dashed to the deceased who succumbed to the injuries in the hospital. The petitioners have also produced true copy of charge sheet and hand sketch map which are marked as Ex.P.3 and 4. On perusal of police documents, they clearly reveal that, the accident taken place due to rash and negligent driving by the driver of offending vehicle and after investigation, the police have filed charge sheet against the driver of offending vehicle for the offences punishable under Section 279 and 304-A of IPC. In the cross examination of PW.1, nothing has been elicited to disbelieve his SCCH - 11 8 MVC No.2859/2014 evidence and his oral evidence is supported by the documentary evidence. So I answered issue No.1 in affirmative.
14) ISSUE No.2: Though respondent No.2 has taken contention that, as on the date of the accident, offending vehicle was not having valid permit and fitness certificate and the driver of offending vehicle was not holding valid and effective driving licence. But the respondent No.2 has not placed any materials to that effect and there are no documents to show that, driver of offending vehicle was not holding valid and effective driving licence as on the date of the accident. Even the police have filed charge sheet against the driver of offending vehicle for the offences punishable under Section 279,304A of IPC and they have not filed charge sheet against the accused driver for violation of provisions of Motor Vehicle Act. So I hold that, the respondent No.2 has failed to prove the contention raised in the Written Statement. Therefore I answered issue No.2 in negative.
15) ISSUE NO.3: PW1 has stated in his evidence that, his father was taken to the SVRRGG Hospital, Thirupathi from the Government hospital, Chittur and he succumbed to the injuries at about 4.30 a.m. He has stated that, they taken dead body to her native village and buried and they have spent Rs.20,000/- towards transportation of dead body and funeral obsequies. Since the petitioners would have spent Rs.20,000/- towards transportation of dead body and funeral obsequies, it is just and proper to award SCCH - 11 9 MVC No.2859/2014 Rs.20,000/- under the head of transportation of dead body and funerals. Hence petitioners are awarded compensation of Rs.20,000/- under the head of transportation of dead body and funeral expenses.
16) Due to sudden demise of the deceased Chinnagovindaswamy, the petitioner no1 has lost her loving husband and petitioner no2 has lost his loving father at young age. Considering this fact, I feel it just and proper to award the compensation of Rs.40,000/- under the head of loss of love and affection. Hence the petitioners are awarded the compensation of Rs.40,000/- under the head of loss of love and affection.
17) Due to sudden and untimely death of the deceased in the family, the petitioners have lost their earning member and they have been put to economical loss and their life has become miserable and they have lost income towards estate. Considering this fact, I feel it just and proper to award the compensation of Rs.30,000/- under the head of loss of estate. Hence the petitioners are awarded the compensation of Rs.30,000/- under the head of loss of estate.
18) Petitioner No.1 has lost her husband at her old age and she has lost companionship, love, affection, care and protection etc as being wife of the deceased. It is the right of the petitioner No.1 to the company, society, solace, affection, and sexual relations with her deceased husband and it is just and proper to award the SCCH - 11 10 MVC No.2859/2014 compensation of Rs.1,00,000/- under the head of consortium and compensate the loss of spouse's action, comfort, solace, companionship, society, assistance, protection, care and sexual relations in future days as held in the decision of Hon'ble Supreme Court reported in Rajesh V/s Rajbir Singh 2013 ACJ 1403. Hence the petitioner no1 is awarded the compensation of Rs.1,00,000/- under the head of loss of consortium.
19) PW-1 has stated in his evidence that, the deceased was aged about 60 years and he was hale and healthy and doing coolie work and earning Rs.10,000/- per month. But petitioners have not produced any documents about avocation of deceased and income of the deceased. The petitioners have produced true copy of charge sheet, accident information report, inquest panchanama and post mortem report and in the said documents, the age of the deceased is shown as 70 years. The petitioners have produced true copy of ration card and as per the said document, the age of the deceased is shown as 66 years. But the said document was issued on 29.06.2006 and as on that date, he was aged about 66 years. This goes to show that, as on the date of death of the deceased, he was aged about 70 years. As per the decision of Hon'ble Supreme Court reported in AIR 2009 SC 3104 (Sarla Verma), the multiplier applicable to the facts of the case is 5. If the notional income of deceased is taken at Rs.5,000/-, there shall be 30% addition towards future prospectus as held in the decision reported in AIR 2009 SC 3104 (Sarla Verma). Then, notional SCCH - 11 11 MVC No.2859/2014 income will be Rs.7,500/-. If 1/3 is deducted towards personal expenses, the actual income will be Rs.5,000/-. Then loss of income will be as under:
Rs.5,000/- x 12 x 5 = Rs.3,00,000/-
Hence petitioners are entitled for compensation of Rs.3,00,000/- under the head of loss of income.
20) Since petitioner No.2 has attained age of majority and he is not dependant upon the income of the deceased, he is not entitled for compensation and only petitioner No.1 is entitled for compensation. So, I hold that petitioner No.1 is entitled for compensation under different heads which is calculated as under:
1) Loss of dependency Rs. 3,00,000/-
2) Transportation of dead body and Rs. 20,000/-
funeral expenses
3) Loss of love and affection Rs. 40,000/-
4) Loss of estate Rs. 30,000/-
5) Loss of consortium Rs. 1,00,000/-
Total Rs. 4,90,000/-
Therefore, in total the petitioner No.1 is entitled to
compensation of Rs.4,90,000/- with simple interest @ 6% p.a. from the date of petition till complete realisation.
21) The respondent No.1 is the owner of offending vehicle and respondent No.2 is the insurer of the offending vehicle and as on the SCCH - 11 12 MVC No.2859/2014 date of accident, insurance policy was inforce. Hence the respondent No.2 is liable to indemnify the respondent No.1. So I hold that respondent No.2 is liable to pay the compensation of Rs.4,90,000/-
along with interest at the rate of 6% per annum from the date of petition till its realization. Accordingly, I answer this issue No.3 in the partly affirmative.
22) ISSUE No.4: In view of answers to issues No.1 to 3, I proceed to pass the following:
ORDER The petition filed under Section 166 of M.V. Act is partly allowed with costs.
The petitioner No.1 is entitled for compensation of Rs.4,90,000/- with interest at the rate of 6% p.a. from the date of petition till complete realization.
The respondent No.2 is hereby directed to deposit the entire awarded amount with accrued interest, within one month, from the date of this award.
Out of the awarded compensation amount, Rs.2,00,000/- shall be deposited in the name of petitioner No.1 in any nationalized or scheduled bank for a period of 5 years and remaining amount of Rs.2,90,000/- along with accrued interest on awarded amount shall be SCCH - 11 13 MVC No.2859/2014 released to the petitioner No.1 by way of account payee crossed cheque, on proper identification and verification.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
(Typed to dictation by the Stenographer and corrected by me, then pronounced in Open court on this 7th day of May 2015.) (GANAPATHI GURUSIDDA BADAMI) I ADDL.SMALL CAUSES JUDGE & XXVII ACMM ANNEXURE WITNESSES EXAMINED FOR PETITIONERS:
PW.1 - C.Yuvaraj
DOCUMENTS MARKED FOR PETITIONERS:
Ex.P.1 - CC of FIR
Ex.P.2 - CC of complaint & transcription copy
Ex.P.3 - CC of charge sheet
Ex.P.4 - CC of rough sketch
Ex.P.5 - CC of accident information report
Ex.P.6 - CC of inquest panchanama
Ex.P.6(a) - CC of transcription copy
Ex.P.7 - CC of PM certificate
Ex.P.8 - CC of Accidental Inspection Report from Motor
Vehicles Inspector
Ex.P.9 - Notarised copy of ration card
Ex.P.10 - Notarised copy of election identity card
Ex.P.11 - Notarised copy of election identity card
SCCH - 11 14 MVC No.2859/2014
WITNESSES EXAMINED FOR RESPONDENTS :
- Nil-
DOCUMENTS MARKED FOR RESPONDENTS :
- Nil -
I ADDL.SCJ. & MACT.