Bangalore District Court
In : 1. Smt.Shabana Begum vs Shanawaz S on 11 January, 2022
( 1 ) MVC NO.1935/2018 & 1936/2018
BEFORE THE COURT OF XXIV ADDITIONAL SMALL
CAUSES JUDGE AND THE MOTOR ACCIDENT CLAIMS
TRIBUNAL & A.C.M.M. (SCCH26) AT BENGALURU
DATED THIS THE 11th JANUARY 2022
PRESENT: SRI.R.MAHESHA. B.A.L.LLB.,
XXIV ADDL. SCJ &
ACMM & MEMBER MACT
BENGALURU.
M.V.C No.1935/2018
c/w
M.V.C No.1936/2018,
PETITIONER IN : 1. Smt.Shabana Begum
MVC NO. W/o Late.Babajan,
1935/2018 Muslim, Aged 31 years
2. Shahid Baig
S/o Late Babajan,
Muslim, aged 13 years
3. Mubarak Baig
S/o Late.Babajan,
Muslim, aged 11 years
Petitioners 2 and 3 are minors and
are
r/by their mother as natural
guardian
4. Shabir Baig
(died on 292020)
S/o Late Baji Baig,
Muslim, aged 60 years
2 MVC NO.1935/2018 & 1936/2018
(since dead, petitioner No.4 is
deleted as other petitioners on
record are his LR's)
5. Smt.Shehanaz
W/o Shabir Baig, Muslim,
aged 50 years
All petitioners are residing at No.735,
I cross to V cross, Madras E Gousia
Patar Kote, Nayandanahalli,
Bangalore39.
(By Sri.T.C.S., Adv.,)
PETITIONER IN : Shamsuddin Khan
MVC NO. S/o Abdul Kuddus Khan,
1936/2018 Muslim aged 35 years
r/at 13th cross, I stage,
Chandralayout, Bangalore north,
Nagarabhavi, Bangalore72.
(By Sri.T.C.S.Advocate )
V/s
RESPONDENTS : 1.Shanawaz S
IN MVC No. 1935 S/o Shahazad B.N.
and 1936/2018 Muslim, Major, r/at No.305,
6th cross,
Macca Masjid,
Ahmed Nagar, Gangondanahalli,
Banglaore39
(By Sri.K.N.PAdvocate)
2. The Branch Manager,
3 MVC NO.1935/2018 & 1936/2018
Cholamandalam MS General Inurance
co., Ltd., 59th cross, Golden eye, 9th floor
(level6)
4th M block, Rajajinagar,
Bangalore10.
(By Sri.B.N.S.Advocate)
****
::COMMON JUDGMENT::
These two petitions are filed by the Petitioners under Sec.166 of Motor Vehicles Act, 1989 seeking compensation of Rs.31,50,000/ in MVC No.1935/2018 for the death of Babajan in MVC No.1935/2018 and Rs.29,00,000/ in MVC No.1936/2018 for the injuries sustained by him in a road traffic accident.
2. The brief facts of the case of the Petitioners in both cases are as follows:
That Babajan was working as coolie/loader and unloader under respondent No.1, the owner of the truck bearing No.KA02AA7879 and was proceeding towards Ahamadabad to unload the said material and on reaching Thorangan near Nasik road on 2012018 at about 6.00 a.m., driver of the truck suddenly applied break to avoid on 4 MVC NO.1935/2018 & 1936/2018 coming vehicle and in that process the said truck was moved to road side big ditch and toppled, consequently the respondent No.1 being the owner cum driver of truck has jumped form the said lorry to save his life and whereas the loader and unloader Babajan was struck inside the cabin and sustained multiple grievous injuries on his head an don other parts of body and thereby lost his breath at the spot and Shamsuddin Khan i.e., petitioner in MVC No.1936/2018 sustained grievous injuries.
3. The postmortem on the body of Babajan (in MVC No.1935/2018) was conducted by the doctor attached to Mokhada rural hospital, Palghar and petitioners have spent Rs.1,50,000/ towards death ceremony, obsequies including transportation of deadbody. The petitioners being wife, sons and parents of deceased Babajan have lost their husband/father, son in their middle, young and old ages and are all left in lurch. That Babaan was the sole earning member in the family. That the petitioners are put to irreparable pain and untold sufferings by taking them to 5 MVC NO.1935/2018 & 1936/2018 mental unstability for untimely death of their husband/father/son. Hence petitioners in MVC No.1935/2018 prays to award compensation of Rs.31,50,000/ from the respondents.
4. That in the said accident, the petitioner in MVC No.1936/2018 sustained multiple grievous injuries i.e., crush injuries on right foot, right leg, rupture of peroneal and extensor tendons with loss of skin and muscle, contaminated wounds with avulsion, fractures of right fibula at lower end and right side chest, injury over abdomen and concussive head injury. That the injured was shifted to Sarthak hospital Pvt., Ltd., at Nasik and treated as inpatient from 2012018 to 2512018 and underwent wound debridment with multiple tedons repair, Kwire fixed to left index finger and further shifted to Mysore road High Tech hospital in Bangalore and treated as inpatient from 2612018 to 52 2018 and is continuing followup treatment. That the petitioner has spent more than Rs.4,00,000/ towards treatment, conveyance, nourishment and attendant charges 6 MVC NO.1935/2018 & 1936/2018 and is required to spend considerable amount towards future treatment. That due to accidental injuries, petitioner is suffering from disability and sustained loss of earnings. Hence petitioner prays to award compensation of Rs.29 lakhs from the respondents.
5. After service of summons, in both cases, respondent No.1RC owner of the offending vehicle and respondent No.2 insurance company appeared through their respective counsel and filed their respective written statement.
6. Respondent No.1 in her written statement stated that the petitioners by assigning the reason of death of their husband/father/son out of the motor accident injuries, is determined to make huge money under this claim petition. That the compensation claimed by the petitioner is exorbitant, fanciful and abnormal claim and same is made without any basis. That this respondent admits that he is the owner of the truck/lorry bearing No.KA02AA7879 as on 2012018 and same was insured with respondent No.2 7 MVC NO.1935/2018 & 1936/2018 which is valid from 3062017 to 2962018. That allegations made by the petitioners against this respondent are not admitted hereby above are denied as false and frivolous. Hence prays to dismiss the petitions in both cases.
7. The 2nd respondent filed written statement wherein stated that this respondent is not liable to pay the compensation to the petitioners. That the claimant is the passenger in a goods vehicle and passenger in the goods vehicle is not permissible in law and passenger in the goods vehicle cannot be constituted as a third party. That in the event if the said fact is true and correct, the very act of traveling as coolie for a distance itself is not permissible in law. That according to the rule 100 of the Karnataka motor vehicle rules specifically barred in this regard. That when the law downs to permit to carry them in the vehicle as an employee namely coolies, this act on the part of the owner of the truck/lorry bearing No.KA02AA7879 amounts to violation of law. That the compensation claimed by the petitioner is highly excessive, astronomical and imaginary 8 MVC NO.1935/2018 & 1936/2018 and the same has been claimed without any legal basis whatsoever. That the investigation officer failed to forward the copy of the report of the accident to the jurisdiction claim tribunal and also failed to forward the copy of the same to the first respondent as required under section 158 (6) of the IMV Act and also as per the direction of the Hon'ble Supreme court. Hence prays to dismiss the petitions in both cases.
8. On the basis of the above pleadings, this tribunal has framed the following:
:: ISSUES IN MVC NO.1935/2018 ::
1. Whether the petitioners prove that, they are the legal heirs of the deceased Babajan?
2. Whether the petitioners prove that Babajan was died on account of road traffic accident took place on Nasik road, near Torangan in Maharashtra state due to rash and negligent driving of the driver Truck/lorry bearing reg.No.KA02AA7879 dated :
20012018 at about 6.00 a.m.?
3. whether the petitioners are entitled for compensation? If so, to what extent and from whom?
4. What order or award?9 MVC NO.1935/2018 & 1936/2018
:: ISSUES IN MVC NO.1936/2018
1. Whether Petitioner proves that, he has sustained injuries on account of road traffic accident due to involvement of truck/lorry bearing No.KA02AA7879 on 2012018 at about 6.00 a.m. by its rash and negligent as alleged in the petition?
2. whether the petitioner is entitled for compensation? If so, to what extent and from whom?
3. What Order or Award?
9. In order to prove the above said issues, petitioner No.1 in MVC No.1935/2018 got examined as PW1 and got marked ExP1 to 10 and ExP20 and 21.
10. Petitioner in MVC No.1936/2018 has been examined as PW2 and got marked Ex.P.11 to 19 and ExP22 to 24. Dr.S.U.Shiva Prakash got examined as PW3 and got marked ExP25 to 28.
11. The respondent No.2 got examined one Mahesh Prasad Claims Manager as RW1 and got marked ExR1. 10 MVC NO.1935/2018 & 1936/2018
12. Heard arguments of learned counsel for the Petitioners and Respondents.
13. My findings on the above issues in both cases are as under:
Issues No.1 and 2 in : In the Affirmative MVC No.1935/2018 and issue No.1 in MVC No.1936/2018 Issue No.3 in MVC : Partly in the affirmative No.1935/2018 and Issue No.2 in MVC No.1936/2018 Issue No.4 in MVC : As per final order for the No.1935/2018 and following:
Issue No.3 in MVC No.1936/2018 REASONS
14. Issue No.1 in MVC No.1935/2018:
The case of the petitioner that petitioner No.2 and 3 are sons of petitioner No.1 and deceased Babjan and petitioner No.4 and 5 are inlaws of petitioner No.1. In order to prove their relationship, the petitioner No.1/PW1 produced ExP6 to 10. On perusal of ExP6 to 10, they are 11 MVC NO.1935/2018 & 1936/2018 the adhar cards of petitioner No.1 to 5, its clearly shows in ExP6 the petitioner No.1 shown as wife of late Babajan and in ExP7 and 8 petitioner No.2 and 3 shown as sons of late Babajan and petitioner No.1. ExP9 shows that he is the father of Late.Babajan and fatherinlaw of petitioner No.1. ExP10 shows that petitioner No.5 shown as mother of late.Babajan and motherinlaw of petitioner No.1. There is no dispute from respondent regarding relationship of petitioners. The respondent No.1 counsel verified original adhar cards i.e., ExP6 to 10 during course of trial, so the petitioners able to prove before this tribunal, petitioner No.1 wife of late.Babajan, petitioner No.2 and 3 are sons of late.Babajan and petitioner No.1. Petitioner No.4 reported as dead. Therefore petitioner No.4 deleted as per order of this tribunal. Petitioner No.5 mother of late.Babajan and motherinlaw of petitioner No.1. Hence point No.1 is answered in the affirmative in this case.
15. ISSUE No.2 in MVC NO.1935/2018 and Issue No.1 in MVC No.1936/2018 : 12 MVC NO.1935/2018 & 1936/2018 In order to avoid the repetition of the facts, both issues taken together for common discussion.
16. In order to prove the actionable negligence, the petitioner No.1 in MVC No.1935/2018 was examined as PW1 and petitioner in MVC No.1936/2018 examined as PW2 in both cases themselves entered into the witness box and filed their affidavits in lieu of examinationin chief and got examined as P.W.1 and 2. PW1 and 2 reiterates the averments and the allegations made in the claim petition and deposed that, the accident was occurred solely due to the rash and negligent driving of the truck/lorry bearing reg.No.KA02AA7879 by its owner cum driver i.e., respondent No.1. The respondent No.1 admitted accident and inmates are the cleaner and loader in the lorry. The present complaint lodged by police officer PC 1624 Pradeep Sukhdev Vitkar in the Palghar police station on 24012018. The alleged accident occurred on 2012018 at 6.00 hours, after due 13 MVC NO.1935/2018 & 1936/2018 investigation by investigation officer, they charge sheeted against driver of truck vehicle bearing reg.No.KA02AA 7879 u/s 304A, 279, 338, 337, 427 of IPC and 184, 134, 177 of IMV Act by Mokhada police station. There is no dispute by the respondent regarding occurrence of the accident and death of Babajan and injuries get by one Shamsuddin Khan. The respondent No.1 himself admitted in his written statement, the petitioner/claimant in MVC No.1936/2018 was cleaner and deceased Babajan was loader in truck lorry bearing No.KA02AA7879 at the time of accident. The respondent No.1 driver at the time of occurring accident on 1912018 the said truck lorry bearing No.KA02AA7879 was loaded with til at Dhond in Maharastra state and proceeding towards Ahmadabad to unload the same and on reaching Torangan near Nasik road at about 6.00 a.m. the respondent No.1 driver cum owner suddenly applied break to avoid coming vehicle and thereby the truck was moved to road side deep ditch and toppled, at that time, the respondent No.1 driver cum 14 MVC NO.1935/2018 & 1936/2018 owner has jumped from the truck and saved his life and whereas coolie/loader and unloader Babajan stuck inside the cabin and sustained multiple grievous injuries on his head and other parts and he died at the spot. The cleaner Shamsuddin Khan sustained grievous crush injuries of right foot, right leg, rupture of peroneal and extensor tendons with loss of skin and mussle and contaminated wounds with avulsion, fracture of right fibula at lower end and right side chest, injury over abdomen and concussive head injury. He immediately shifted to Sarthak hospital at Nasik and treated as inpatient from 2012018 to 2512018 and he underwent wound debridement with multiple tendon repair, left index finger fixed with Kwire and further he shifted to Mysore road Hitech hospital, Bangalore and treated as inpatient from 2612018 to 52 2018. PW1 produced ExP1 to 5 they are the copy of FIR and translated copy of FIR, copy of complaint, translated copy of complaint, copy of PM report, copy of advanced death certificate, copy of inquest and translated copy of 15 MVC NO.1935/2018 & 1936/2018 inquest. PW2 produced ExP11 to 19, they are copy of medical certificate, copy of discharge summary, copy of OPD slip, copy of scanning report, medical bills, prescriptions and lab reports. On perusal of entire documents, it is forthcoming on 2012018, due to rash and negligent driving of respondent No.1 driver cum owner the alleged accident occurred and due to this accident, the inmate of lorry Babajan was died and inmate of said lorry Shamsuddin Khan sustained grievous injuries to all over body and he get treatment in Sarthak hospital at Nasik as inpatient and then he shifted to Hitech hospital, Mysore road, Bangalore and he still in followup treatment in said hospital.
17. In the present case the accident is not disputed. The involvement of the vehicle in the accident is also not disputed. From the police documents, it is seen that, the jurisdictional police have registered the criminal case against the driver of the lorry bearing No.KA02AA7879. 16 MVC NO.1935/2018 & 1936/2018
18. Admittedly the petitioners have produced FIR, statement, spot mahazar, IMV report and charge sheet before the Tribunal to know the occurrence of accident and to evaluate the things. From FIR and charge sheet, it clearly depicts that, the accident occurred and police have filed criminal case No.CR 9915/2018 in the court of first grade Magistrate Jahvar, Palagar district, Madhya Pradesh state and charge sheeted U/s 304A, 279, 337, 338, 427 of IPC and 174, 134, 177 of IMV Act.
19. Therefore on the basis of records available as stated, I came to conclusion that the accident occurred due to the negligence on the part of the offending truck lorry bearing No.KA02AA7879. Thus, the contents of the police documents and oral evidence of PW.1 and 2 primafacie establishes the rash and negligence on the part of the driver of the truck lorry bearing No.KA02AA7879. Under these circumstances, the evidence of P.W.1 and 2 coupled with FIR, charge sheet, wound certificates and discharge summaries establishes that the accident has 17 MVC NO.1935/2018 & 1936/2018 caused solely due to rash and negligent driving of the truck lorry bearing No.KA02AA7879 by its Babajan died at spot and Shamsuddin sustained grievous injury on all over his body in the said accident.
20. Besides, it is well settled that, in motor vehicles claim compensation cases, the strict proof of negligence is not required. For the foregoing reasons, I have no doubt in mind to conclude that, the accident in question had taken place because of the actionable negligence of the driver of lorry bearing No.KA02AA7879. From the documents produced by the petitioners easily concluded that, there was a road accident and petitioner in MVC No.1936/2018 sustained grievous injuries and Babajan died at spot, in the said road accident taken place because of exclusive negligence of the driver cum owner of truck lorry bearing No.KA02AA7879. With this I answer issue No.1 & 2 in MVC 1935/2018 and issue No.1 in MVC 1936/2018 in the Affirmative.
18 MVC NO.1935/2018 & 1936/2018
21. ISSUE NO.3 IN MVC NO.1935/2018 AND ISSUE NO.2 IN MVC NO.1936/2018:
In order to avoid the repetition of the facts, both issues taken together for common discussion. This tribunal while discussing issue No.1 in MVC No.1936/2018 and issue No.2 in MVC No.1935/2018 came to conclusion that due to the rash and negligent driving of the driver truck lorry bearing No.KA02AA 7879 dt.2012018 at about 6.00 a.m. due to this accident the Babjan died at spot and Shamsuddin sustained grievous injury to all over his body. The petitioners No.1 to 3 and 5 are legal heir of deceased Babjan and petitioner Shamsuddin was injured in the said accident. Therefore they are entitle to just and fair compensation from respondents. The respondent No.2 clearly admitted in his written statement the manner of accident and the deceased and petitioner was inmates at the time of accident. The respondent No.2 specifically contended in this case that the deceased and injured were unauthorised 19 MVC NO.1935/2018 & 1936/2018 passengers in said lorry. It is specifically barred under rule 100 of Karnataka motor vehicles rules. Law does not permit to carry them in the vehicle as an employee namely coolies. This act on the part of owner amounts to violation of law. Therefore this respondent is not liable to pay any compensation. The respondent No.1 being owner of the vehicle has not lodged any claim with this respondent the respondent No.1 involved in the accident. Therefore respondent No.1 is liable to pay compensation. Further during course of argument, the counsel for respondent No.2 mainly contended that the respondent No.2 is liable to pay compensation if any under employees compensation Act not by IMV Act. Further he submitted before this tribunal mainly that the respondent No.1 not paid additional premium for the wider liability coverage of the coolie/loader and unloader as per the Indian Motor tarrif Act provision u/s 4 (10) (a) r/w endorsement IMT/39.20 MVC NO.1935/2018 & 1936/2018
22. On the other hand the counsel for petitioner canvassed his argument mainly before this tribunal that 100 of Karnataka motor vehicles rules permitted to carrying cleaner and loaders in interstate transit of the goods there is no prohibition under MV Act or rule 100 to carrying cleaner and loader in case of breakdown of vehicles and goods. Further the petitioner counsel mainly contended before this tribunal that Section 147 (1) (I)(c) squarely applied to the persons carried in goods carriage who are employees of insured, includes loader and unloader, as of statutory liability and he took this tribunal attention about section 167 of IMV Act. It provides to file petition u/s 8 of Employees compensation Act and petition u/s 166 of IMV Act,but they cannot took benefit of both. Therefore the petitioners have filed this petition u/s 166 of IMV Act, they are absolutely entitle to get compensation under IMV Act. In this background rival arguments addressed by respected both counsel, this tribunal meticulously perused relevant provisions of IMV Act, 21 MVC NO.1935/2018 & 1936/2018 Employee Compensation Act and policy issued by respondent No.2.
Sec.167 option regarding for claims in certain cases: Notwithstanding anything contained in the Workmen's Compensation Act 1923(8 /1923) where the death of, or bodily injury to, any person gives raise to a claim for compensation under this Act and also under the Workmen's Compensation Act, 1923 the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both. As per above provision it is clear that option is provided under IMV Act or ECA. But not permitted to seek remedy on both Acts. In the instant case, the respondent No.2 not produced any materials to show that the petitions have filed claim petition before jurisdictional commissioner under ECA Act. The petitioners have filed this petition before this tribunal only. They not filed any petitions before any other tribunal or commissioner.
22 MVC NO.1935/2018 & 1936/2018
23. The respondent No.2 contended that claim petition u/s 166 of Motor Vehicles Act is erroneous we are not in agreement with as such as under section 167 of MV Act. The claimant has right to choose the forum to seek the compensation either before the motor vehicle compensation court u/s 166 or under employees compensation Act. In any event the liability of the insurer will be confined to the compensation that is payable under the workmen compensation Act/employees compensation Act and not under motor vehicles Act. They issued policy for offending vehicle as per ExR1 if any liability subject to terms and conditions mentioned in ExR1. As on the date of accident, policy is in force the owner/respondent No.1 has not paid additional payment of Rs.25/ per employee as per Section 4 tariff or commercial vehicles and sub clause 10(a). Therefore they are not liable to pay compensation as per IMV Act. In this background, this tribunal meticulously verify the relevant provision referred by respondent No.2, the same provision extracted here.
23 MVC NO.1935/2018 & 1936/2018
Section 4 Tariff for commercial vehicles regulations SECTION 10 (a) LEGAL LIABILITY TO PERSONS EMPLOYED IN CONNECTION WITH THE OPERATION AND OR MAINTENANCE AND/OR LOADING AND/OR UNLOADING OF THE INUSRED GOODS CARRYING VEHICLE (INCLUDING TRACTORS AND ALL MISCELLANEOUS VEHICLES OF CLAUSE (D) OF COMMERCIAL VEHICLES VEHICLE TARIFF) Liability to any paid driver or cleaner or conductor or persons employed in loading unloading may be covered on payment of additional premium at Rs.25/ per employee. The premium being chargeable on the total number of such employees registered to be carried in the vehicle. The additional premium of Rs.25/ per employee is net irrespective of any period of insurance not exceeding 12 months.
ENDORSEMENT IMT 39 is to be used.
On careful perusal of ExR1, it indicates that the policy issued by respondent No.2 for the goods carrying vehicle 24 MVC NO.1935/2018 & 1936/2018 bearing reg.No.KA02AA7879 on 3062017 and it is valid till 2962018. The type of vehicle is Ashok Leyland goods carrier and gross vehicle weight 25000/ licenced passenger carrying capacity 6, driver 1, cleaner 0, conductor 0, total seating capacity including driver 7. The limits of liability u/s 2 (1)(I) of the policy : death or bodily injury such amount as is necessary to meet requirements of MV Act 1988.U/s 2 (1) (II) of the policy : damage to 3 rd party property Rs.7,50,000=00 p.a. cover for the owner cum driver u/s 4 (CSI) Rs.2 lakh. Subject to IMT.
24. The respondent No.2 while filing his written statement on 242018 he did not took above defence in his written statement regarding section 4 (10) A Indian Motor Tariff Act r/w endorsement IMT 39 he filed application u/o 8 rule 9 r/w sec.151 CPC to file additional written statement on 542021. On contest the said application dismissed by this tribunal on 2842021. The respondent No.2 did not challenged the order passed by this tribunal before Appellate court, so this order attained 25 MVC NO.1935/2018 & 1936/2018 finality. The respondent No.2 without pleaded in his pleadings he stated and took fresh ground in evidence affidavit of RW1 even his additional written statement rejected by this tribunal. Vide order dt. 2842021. It is pertinent to refer Apex court decision in the case of Biraji @ Brijraj and another Vs Surya Prathap and others the Supreme court of India held that " In the absence of pleadings submitted at the appropriated stage within the stipulated time, any amount of evidence submitted later on, will not be taken into consideration by the court. In absence of pleading, any amount of evidence will not help the party in a civil suit". On careful perusal of ExR1 there is no mention of IMT 39 and as per the case of petitioners at the time of accident 3 persons traveled in lorry i.e., respondent N.1 driver cum owner deceased Babajan and injured Shamsuddin. Admittedly the respondent No.1 jumped from lorry and saved his life he did not lodged any claim petition against respondent No.2 As per ExR1 the said lorry permitted to carrying 26 MVC NO.1935/2018 & 1936/2018 passengers six and including driver 7 persons were permitted carrying in said lorry. During course of cross examination of RW1, he clearly admitted that ಕ ಕಲ 100 ಪ ಕಕರ ಹವ ವಹಕಲ 12500 ತಕಕವನನ ಐ.ಎಎ.ವ ಆಕಕ ನ ಸಗಣಕ ಮಡಲನ ಅನನಮತ ಇದ ಎಎದರ ಸರ . ಎಕಕಕ ಕಲಕಕ ಮಡದದ ಇದದರಕ ಎಎಪಪಯಸಸ ಪರಹರ ಕಕಡಬದಕಎಬ ಭದದತ ಇದ ಎಎದರ ಸಕ ಇದನ ಪ ಕಕರಣದ ವಸನಸ ಸದತಗಳನನ ನ ಅವಲಎಬಸರನತಸದ ಎಎದನ ಹದಳನತಸರ. ರಕಲ113 ಐ.ಎಎ.ವ ಆಕ ಕ ಪ ಕಕರ ಅಎತರ ರಜದ ಸರಕನ ಸಗಣಕ ವಹನದಲ ಕಪದನರ ಮತನಸ ಲಕದಡರ ಯವದದರನ ಮಕದನಕಲ ತಕಎದರ ಆದಗ ಅಗತದಕಕ ಬದಕಗನತಸದಎದನ ಆ ವಹನದಲ ಪ ಕಯಣ ಮಡಲನ ಅನನಮತ ಇದ ಎಎದರ ಸರ . ಸಕನ147 ಎಎ ವ ಆಕ ಕ ಪ ಕಕರ ಶಸನ ಬದದ ಹಕಣಗರಕ ವಮ ಕಎಪನ ಮದಲ ಇದ ಎಎದರ ಸರ .
In this background, this tribunal meticulously perused rule 100 (3) Karnataka Motor vehicles Rules 1989 which is relevant to extract same for benefit of stake holders. Hence same is extracted.
100. Carriage of persons in goods vehicle 27 MVC NO.1935/2018 & 1936/2018 (1) subject to the provisions of this rule, no person shall be carried in a goods vehicle.
Provided that the owner or the hirer or a bonafide employee of the owner or the hirer of the vehicle carried free of charge or a police officer in uniform traveling on duty may be carried in a goods vehicle, the total number of persons so carried.
I. In light transport goods vehicle having registered laden weight less than 990 kgs not more than 1 II. in any other light transport goods vehicle not more than 3 and III. In any goods vehicle not more than 7. Provided that the provisions of sub clauses II and III of the above proviso shall not be applicable to the vehicles plying on inter state routes or the vehicles carrying goods from one city to another city.
28 MVC NO.1935/2018 & 1936/2018Learned counsel for petitioner placed mainly reliance on decisions of Apex court and Hon'ble High Court of Karnataka.
1. AIR 2013 SC 1853 Civil Appeal No.937/2013 Oriental insurance company Ltd., vs Dyamavva and others wherein Apex court discussed related to option of claimants to make claim either under MV Act or under EC Act but not under both, is in consoance with section 167 of MV Act.
2. MFA No.3553/2009 (MV) clubbed with MFA 7179/2009 Oriental insurance co., Vs Smt.Chandravathi and others single bench Karnataka High Court DD 972012. Wherein Hon'ble High Court of Karnataka discussed in this case related to premium of Rs.50/ received under policy not only relates to the driver but to clause of employees mentioned in section 147 (1) of MV Act to cover wider liability.
3. MFA 3757/2011 (mv ) CLUBBED WITH MFA 9963/2011 DD 11082021 High Court of Karnataka 29 MVC NO.1935/2018 & 1936/2018 single bench. Smt.Yashodamma and others Vs the Manager Reliance insurance company Ltd., wherein Hon'ble High Court of Karnataka discussed related to IMT 40 endorsement cleaner also covered in terms of policy.
4. MACA No.2281/2010 Kerala High Court at Yernakulam Division Bench DD on 292015. Oriental insurance company Ltd., Vs Velayudhan and others wherein Kerala High court held that section 147 (1) (I) and (c) would squarely applicable to the persons carried in goods carriage who are employees of insured, includes loader and unloader as of statutory liability.
5. 2018 ACJ 2081 Karnataka High Court DD 212 2017 single bench United India insurance co., Ltd., Vs Muni Anjanappa and others wherein Karnataka High Court discussed and held that even though loader and unloader appointed for limited period, they become employees of goos vehicle rule 100 statutorily covers 30 MVC NO.1935/2018 & 1936/2018 the risk of the loader, unloader working on the goods vehicle. Insurance company cannot escape its liability as policy covered the risk of employees engaged for loading/unloading.
6. MFA No.31423/2009 and other club cases single bench Karnataka High court, circute bench at Gulbarga DD 632013. The oriental insurance co., Ltd., Vs Mastan S/o Mallaiah and others wherein Karantaka High court held that section 147 of MV act and rule of 100 Karnataka vehicles rules 1989 permits carrying of 6+ 1 hamalies in heavy goods vehicle.
7. MFA 21045/2011 and another connected clubbed matter Karnataka High Court DD 2412019 single bench Dharwad bench. The branch Manager, the oriental insurance co., Ltd., Vs Smt.Fakkirawwa wherein held in this case that rule 100 provides for carrying cleaner and loaders in interstate transits of the goods in case of breakdown of vehicle and goods there is no prohibition under MV Act or rule 100. For 31 MVC NO.1935/2018 & 1936/2018 the inter state goods carriage is not prohibited from employing, cleaner or second driver or loader etc.,
8. AIR 2017 Supreme court page 515 National insurance co., Ltd. Vs Pranay sethi and others. Providing future prospects of deceased to arrive at compensation.
9. Civil Appeal No.9581/2018 SC Magma General isnruance co., Ltd., Vs Nanuram @ Chuhruram and others loss of love and affection and consortium.
25. On the other hand respondent No.2 counsel placed decision of Hon'ble High Court of Karnataka and 3 documents in supporting of his arguments.
1. copy of the bare provision of section 4 (10) (a) under the India Motor tariff
2. copy of the bare provision of endorsement IMT 39 under the India motor tariff.
3. official Gezette notification under SO 71 (e) issued by the ministry of labour and employment dt.312020. 32 MVC NO.1935/2018 & 1936/2018
4. MFA No.101768/2015 (ECA) single bench Karnataka High court, Dharwad bench dd3092020.
26. Further learned counsel for petitioner took this tribunal attention about who is 3rd party and how Act only policy includes "PA" risk.
First party is the owner of the vehicle, 2nd party is the insurance company and 3rd party is the the person who gets injured in case the vehicle gets involved in any accident. A 3rd party insurance cover offers protection to the 3rd parties from injuries/death in an accident. So the 3rd party can claim for compensation under 3rd party cover of your auto insurance. This component is most of the times part of a comprehensive insurance coverage for a commercial vehicle. The Motor Vehicle Act 1988 u/s 145(g) " 3rd party" includes the government. "3 Rd party"
includes everyone (other than the contracting parties to the insurance policy.), be it a person traveling in another vehicle, one walking on the road, or a passenger in the 33 MVC NO.1935/2018 & 1936/2018 vehicle itself which is the subject matter of insurance policy.
What is 'act only' cover, act only or 3rd party policy covers only your legal liability for the damage caused to a 3rd party like bodily injury, death and damage to 3 rd party property while using your vehicle. 3Rd party insurance does not cover damages to your own vehicle. HOW 'ACT ONLY' POLICY INCLUDES "PA" RISK 3rd party or act only policy also includes personal accident, risk of an owner cum driver in the event of permanent disability or death in an accident. An in built coverage of Rs.1 lakh in two wheelers and Rs.2 lakhs in all other vehicles for the owner cum driver while traveling, mounting or dismounting from the vehicle is available. Accidental cover for copassenger is optional. WHO ARE THE BENEFICIARS Motor 3rd party insurance are the 'act only' cover, is a statutory requirement under the motor vehicles Act. It is 34 MVC NO.1935/2018 & 1936/2018 referred to as a '3rd party' covers since the beneficiary of the policy is some one, other than the two parties involved in the contract i.e., the insured and the insurance company. The policy covers the insured legal liability for death/disability of 3rd party loss or damage to 3rd party property. The victim can claim for compensation under 'no fault liability' or 'fault liability' of the motor vehicles Act 1988. However, unlimited compensation is available only for bodily injury or loss of life in case of damage to a property, The insurers liability is limited to maximum Rs.7.5 lakh.
27. With due respect for principle of law laid down by Apex court which were placed by both counsel and in the background of submission made by both counsel, perused the entire materials, it disclose that accident was not in dispute and due to road accident the passengers in truck lorry bearing No.KA02AA7879 one Babajan succumbed due to this accident and Shamsuddin got grievous injury in all over his body. As per section 167 of IMV Act, the 35 MVC NO.1935/2018 & 1936/2018 claimants have option to get compensation under IMV Act or ECA Act, but not by both Acts. Now question remains before this tribunal whether petitioners have entitle compensation under IMV Act or ECA Act?.
28. It is the case of the petitioners in both petition that on 2012018, the alleged accident occurred. The Babajan was working as coolie/loader and unloader under respondent No.1. The Shamsuddin working as cleaner in said lorry, the said lorry is heavy transport vehicle, the said lorry insured with respondent No.2 as on the date of accident the policy issued by respondent No.2 was in force and valid. The respondent No.2 contended that if any compensation ordered for payable to claimants this respondent liability was under ECA Act not IMV Act. If this tribunal ordered under IMV Act excess amount would payable by respondent No.1 i.e., owner cum driver of lorry bearing KA02AA7879. The respondent No.2 produced ExR1 and examined its official as RW1 he always deposed before this tribunal if liability if any subject to 36 MVC NO.1935/2018 & 1936/2018 terms and conditions of policy. During course of cross examination, he denied the suggestion of petitioner the first respondent and 2nd respondent are parties to policy and other parties are 3rd parties and definition of 3rd party inclusive and he voluntarily stated before this tribunal its all depend on interpretation of definition and RW1 admitted asper rule 100 of IMV Act, there is a permission to took cleaner and loader for inter state transport vehicle and he admitted section 147 of IMV Act, the insurance company has statutory liability to comply award passed by tribunal. Further he admitted during course of cross examination IMV Act rules 100 permitted to carry 12500 kgs even they not collected extra premium, they liable to pay compensation to their employees and witness clarified before this tribunal, its depend on facts and circumstance of each case. It is contention of the respondent No.2 the owner had not paid premium to cover his employees since it is a goods carriage that too transporting goods from one state, another state and 37 MVC NO.1935/2018 & 1936/2018 intercity also, the insurance company is not liable for wider liability. Therefore they contending they are liable for limited liability. Rule 100 of IMV Act permitted to carrying coolies/loader/unloader for heavy truck vehicle which carries to from one state to another state. As perEx R1 the permission to carry passengers 6+1. In the present case, the respondent No.1 driver cum owner did not claim any compensation from respondent No.2. At the time of accident, 3 persons were traveled in the said heavy truck lorry. Out of 3, one died at spot and another one get grievous injury. As per Section 145 (g) the deceased and injured were 3rd parties, the respondent No.2 could not have issued a limited liability policy since rule 100 is applicable to this vehicle having ladden weight more than 12500 net weight of vehicle along with load. ExR1 permitted capacity of carries in the cabin 6+1, they already collected Rs.50/ for risk of driver, even though not collected additional premium for other employees the insurance company liable to pay compensation under 38 MVC NO.1935/2018 & 1936/2018 IMV Act. In any goods vehicle not more than 7 persons carried in cabin, it is in that context proviso except applicability of (1) (3) of 100 to vehicles plying inter state and vehicle carriage of goods from one city to another city in order to assist lorry and care the traveling of hamalies in heavy motor vehicle permitted. In present instant case Truck lorry clearly comes under the rule Karnataka Motor Vehicle rules proviso III i.e., in any goods vehicle not more than 7. Therefore this tribunal opinion the petitioners are 3rd parties to the alleged accident and they are entitle compensation under IMV Act.
29. Issue No.2: It is the case of petitioner in MVC No.1935/2018 that the petitioners are the wife, sons and parents of deceased Babajan, the said Babajan before this accident was working as coolie/loader and unloader under respondent No.1, the said Babajan was getting wages of Rs.15,000/p.m. and bata of Rs.200/ per day outside the state. To substantiate above facts, admittedly they have not placed any materials before this tribunal before this accident 39 MVC NO.1935/2018 & 1936/2018 and during his life time, the said Babajan working as coolie/loader and unloader with respondent NO.1 and he getting salary of Rs.15,000/p.m. and bata for Rs.200/in the outside state. PW1 during course of cross examination clearly admitted that ನನನ ಯಜಮನರಗ ಲರ ಮಲಕರನ ರಕ. 15000 ತಎಗಳಗ ವದತನ ಮತನಸ ರಕ. 200 ಬಟ ಕಕಡನತಸದದರನ ಎನನ ನ ವ ಬಗಸ ಯವದದ ದಖಲ ಇರನವದಲಪ.
30. So this admission clears the petitioners did not produced any materials to show deceased avocation and income. So it is worthful to take notional income. As per the recent decision of Hon'ble High Court of Karnataka in the case between MFA 4893/2016(MV) Smt.Yashodamma Vs M.D., BMTC disposed on 16102020 (DB) held that in case no document produced by the petitioners to prove their avocation and income, in such a situation, court can refer or rely the guidelines issued by Karnataka State Legal Service Authority to assess notional income of deceased. Hence, as per the chart prepared by Karnataka State Legal Service 40 MVC NO.1935/2018 & 1936/2018 Authority, dt.13082020, the notional income of the deceased is taken as Rs.12,500/. Therefore Notional Income of Rs.12,500/ p.m. has to be considered for calculating the compensation.
31. The next question would be what is the age of deceased is ? It must be noted in this case the petitioners have stated that at the time of accident, the deceased was aged 35 years. During course of cross examination, PW1 admitted her husband age mentioned in ExP5 as 36 and it is correct. On perusal of ExP3 PM report and inquest report i.e., ExP5, the age of deceased mentioned as 36 years. So it is safe to take medical record, hence the age of deceased at the time of accident is 36 years.
32. It is relevant to note that in the decision reported in 2009 (6) SCC page 12 in the case of Sarala Varma Vs Delhi corporation, Hon'ble Apex court after considering the decisions in Susamma Thamas and Trilokchandra and Charlis case has concluded that the multiplier applicable to person between age group of 36 to 40, multiplier is 15. 41 MVC NO.1935/2018 & 1936/2018
33. As per decision reported in Special Leave Petition (civil NO.25590/2014 in between national insurance co., Ltd., Vs Pranaya Sethi, the Hon'ble Apex court has made it clear that a addition of 40% to be added to the monthly income if the deceased was self employed or fixed salary as fixed prospects 12,500/ x 40%=17,500/.
34. In the present petition, petitioner No.1 was wife of late Babajan and petitioner No.2 and 3 are sons of late Babajan, petitioner No.4 father of late.Babajan during pending proceedings, he died. Therefore petitioner No.4 deleted as per order dt.23112020 and petitioner No.5 is mother of late.Babajan. Therefore the number of dependents are four.
35. As per Sarla Varma case, out of the said amount 1/4th has to be deducted towards personal expenses of the deceased, if he would have been alive, as the number of dependents of the deceased are four. So the loss of dependency for the petitioners would be Rs.13,125/p.m. So 42 MVC NO.1935/2018 & 1936/2018 the total loss of dependency for the petitioners would be ( 13,125 x 12 x 15 ) Rs.23,62,500/ only.
36. As per recent decision of Hon'ble Supreme Court of India decided on 18th September 2018 between Magma General Insurance Co., Ltd., Vs Nanu Ram @ Chuhru Ram and others, as the petitioner No.1 is the wife, petitioner No.2 and 3 are the sons, petitioner No.5 is the mother of the deceased Babajan, Due to the death of Babajan, they lost parental aid, protection, affection, society, discipline, guidance and training. Hence, petitioner No.1 to 3 and 5 are entitled for compensation of Rs.40,000/ each under the head of loss of Filial Consortium.
37. Petitioners might have also spent some amount towards transportation of the dead body and funeral expenses. So, it is just and proper to award a compensation of Rs.15,000/ under this head. Since, the petitioners lost the earning member of the family, it is proper to award Rs.15,000/ towards loss of estate.
38. In view of the above reasoning, petitioners are entitled for the compensation under the following Heads: 43 MVC NO.1935/2018 & 1936/2018
SL.NO. HEAD COMPENSATION
AWARDED
1 Income Rs.12,500/
2. Future prospects Rs. 5,000/ (i.e., 40% of
the income)
3. Deductions : Rs. 4,375/( i.e., 1/4th
deductions towards of the income)
4. Personal expenditure Rs.13,125/
total income
5 Multiplier 15
6 Loss of future income Rs.13,125/ x 12 x
15=Rs.23,62,500/
7 Loss of consortium to Rs.1,60,000/
petitioner No.1,2,3 and 5
8 Funeral expense Rs. 15,000/
7 Loss of estate Rs. 15,000/
TOTAL COMPENSATION Rs.25,52,500/
AWARDED
The said total amount of Rs.25,52,500/ is rounded off to Rs.25,53,000/. Thus, the petitioners in MVC No.1935/2018 are entitled for the total compensation of Rs.25,53,000/ only.
39. IN MVC NO.1936/2018: The petitioner states that he was aged about 35 years as on the date of accident, due to the accident, he has 44 MVC NO.1935/2018 & 1936/2018 sustained grievous crush injuries of right foot, right leg, rupture of peroneal and extensor tendons with loss of skin and muscle, contaminated wounds with avulsion, fracture of right fibula at lower end and right side chest, injury over abdomen and concussive head injury. PW2 deposed that when he was in lorry on 1912018 lorry bearing No.KA02AA7879 as a cleaner at Dhond in Maharastra state, the driver applied break suddenly and thereby the truck was moved to road side deep ditch and toppled. The respondent No.1 jumped from the trick and saved his life and where as the cleaner sustained multiple grievous injuries and loader and unloader, Babajan was struck inside the cabin and sustained multiple grievous injury on his head and on other parts and died at spot. The petitioner stated in the petition he was 35 years at the time of accident and he was cleaner in said lorry with respondent No.1. In ExP11 his age mentioned by the medical officer as 35 years and he did not produced any document to show to prove his avocation as stated in the 45 MVC NO.1935/2018 & 1936/2018 petition. So considering the year of the accident, and notional income of petitioner taken Rs.12,500/p.m., multiplier is 16. Due to the accident the petitioner sustained above injuries, immediately he was shifted to Nasik hospital at Maharastra and he admitted and treated as inpatient from 2012018 to 2512018 (6 days) later he shifted to Bangalore Hitech hospital, Mysore road, Bangalore and he admitted as inpatient and treated from 2612018 to 522018 for a period of 12 days he produced ExP11 medical certificate and ExP12, 13 copy of discharge summary, ExP14, 15 copy of OPD slip, Ex P16 scanning report, ExP17 medical bills (138 in Nos) for sum of Rs.2,60,734/ and ExP18 prescriptions (63 in Nos). ExP19lab reports. Due to this accident, he was treated conservatively and discharged on 2512018 with an advice for regular followup treatment and life long medication. He continued his treatment and he get treatment with PW3, he was also examined before this court, he deposed that the petitioner came to his clinic 46 MVC NO.1935/2018 & 1936/2018 on 522020 complaining of (a) pain in right ankle (b) deformity in right ankle (c) deformity in walking (c) difficulty in attending to his normal work and he assessed disability to the injuries that he had sustained in an RTA dt.2012018. The PW3 opinion and assessed physical disability of the petitioner, total disability to the limb 24% and wholebody disability is 12% and is permanent. PW3 has been subjected cross examination. During course of cross examination he admitted that he was not a treated doctor and he did not give any reasons from serial No.1 to 8 disabilities. Further he admitted the mobility component assessed to ankle is incorrect, disability found only in plantar flexion, (plantar flexion is a movement in which the top of your foot points away from your leg ). Further PW3 admitted that earlier doctors have not suggested to petitioner for any surgery and he denied he assessed higher side disability to petitioner. As per evidence of PW3, the petitioner had problem only in plantar flexion, he assessed particular limb 24% and total 47 MVC NO.1935/2018 & 1936/2018 body disability is 12% and doctor stated on examination he made list from sl.No.1 to 8, the petitioner having problem above list, but during course of cross examination he voluntarily made sl.No.1 to 8 the petitioner did not had any problem on examination. In support of his oral evidence, he produced ExP25 to 28. The petitioner has not produced any document to show he was cleaner in said lorry. By the evidence of PW3, he did not assessed any avocational disability. Considering the nature of injuries and doctors evidence, the total functional disability is considered at 10%. The loss of future earnings due to permanent disability is calculated as Rs.12,500/ x 12 x 16 x 10%= Rs.2,40,000/.
40. Pain and sufferings : So far as the compensation udner non pecuniary damages, considering the fact that the petitioner has suffered permanent disability to the extent of 10% due to the accident which cause to him immeasurable mental agony and pain, I am opinion that an amount of 48 MVC NO.1935/2018 & 1936/2018 Rs.25,000/ would be just and fair compensation under the head of paid and sufferings.
41. Loss of Amenities of Life : For loss of amenities of life, undoubtedly he has to lead to his life ahead and he is sure to suffer on his day today activities. Hence petitioner is awarded Rs.20,000/ under loss of amenities of life.
42. Medical Expenses: Under the pecuniary damages, expenses relating to treatment, hospitalisation and medicines ExP17 produced by the petitioner. On perusal of it shows that the petitioner was admitted in Sarthak hospital pvt., Ltd., at Nasik, Maharastra state and treated as inpatient from 2012018 to 2512018. He underwent wound debridement with multiple tendons repair K wire fixed to left index finger and further he shifted to Mysore road Hitech hospital, Bangalore and treated as inpatient from 2612018 to 522018 and he is continuing followup treatment. The petitioner contending in the petition he has spent more than Rs,4 lakhs towards treatment, he produced medical bills as per ExP17 (138 in 49 MVC NO.1935/2018 & 1936/2018 Nos) for a sum of Rs.2,60,734/ and he produced ExP18 prescriptions (63 in Nos). On careful perusal of ExP17 and 18, the petitioner sustained pecuniary loss for the purpose of treatment he expend Rs.2,60,734/, there is no objection from respondent No.2 regarding genuinity of medical bills. Therefore he is entitle full medical bills under this head. This tribunal awarded compensation of Rs.2,60,734/ under the medical expense.
43. Food and nourishment, Conveyance and Attendant charges: The petitioner i.e., PW2 stated in his evidence affidavit and in petition that after the accident, he immediately admitted inpatient in Sarthak hospital, Nasik, he get preliminary treatment for a period of six days and he shifted further treatment to Mysore road Hitech hospital, Bangalore and treated as inpatient from 2612018 to 52 2018 conservatively for a period of 10 days. Therefore it is just and reasonable to award compensation of 50 MVC NO.1935/2018 & 1936/2018 Rs.25,000/ under the head of Food and nourishment, Conveyance and Attendant charges.
44. Loss of income during the period of treatment: With regard to loss of earnings during treatment, considering 15 days admitted in the hospital as inpatient and around 90 days for rest is considered and loss of earning during treatment calculated for 90 days, notional monthly income of the petitioner is already considered as Rs.12,500/p.m. and hence loss of earning during treatment would be Rs.37,500/ under the head Loss of income during the period of treatment.
45. In view of the above reasoning, petitioners are entitled for the compensation under the following Heads:
SL.N HEAD COMPENSATION
O. AWARDED
1 Loss of future earnings due Rs.2,40,000/
to permanent disability
2. Pain and sufferings Rs. 25,000/
3. Loss of amenities of life Rs. 20,000/
4. Medical expenses Rs.2,60,734/
5 Food, nourishment, Rs. 25,000/
conveyance and attender
51 MVC NO.1935/2018 & 1936/2018
charges
6 Loss of income during the Rs. 37,500/
period of treatment
TOTAL COMPENSATION Rs.6,08,234/
AWARDED
The said total amount of Rs.6,08,234/ is rounded off to Rs.6,09,000/. Thus, the petitioners in MVC No.1935/2018 are entitled for the total compensation of Rs.06,09,000/ only.
46. As far as awarding of interest on the compensation amount is concerned, in a recent decision reported in 2018 ACJ 1300 between Mangla Ram V/s. Oriental Insurance Co., Ltd., and others (in CA Nos.2499 of 2018 arising out of SLP(C) Nos.2814142 of 2017 decided on 06.04.2018) wherein the Hon'ble Supreme Court with regard to interest at the rate of 9% p.a. on the compensation amount, in para No.28 of the judgment held that, 'The appellant would also be entitled to interest on the total amount of compensation at the rate of 9 per cent per annum on the compensation from the date of filing of the claim petition 52 MVC NO.1935/2018 & 1936/2018 till date of realization" and also by following the principles laid down in (2018) ACJ 1020 in between ICICI Lombard General Insurance Co., Ltd., V/s. Ajay Kumar Mohanty and another decided on 6.3.2018 (in CA Nos.7181 of 2015 and 1879 of 2016) at para No.1 and 12 Hon'ble Supreme Court held that: "QuantumInterestTribunal allowed interest at the rate of 7.5 per cent which was reduced by High Court to 7 per centApex Court allowed interest at 9 per cent per annum from the date of filing of claim application". In view of the above judgments with regard to the rate of interest and also it is settled principles of law that, while awarding interest on the compensation amount, the Court has to take into account the rate of interest on the Nationalized Bank and the rate of interest at the rate of 9% p.a. cannot said to be on the higher side. Accordingly, the Petitioner is entitled to interest at the rate of 9% p.a.
47. Coming to the question of fixing the liability to pay the compensation to the Petitioner, it is held supra by this 53 MVC NO.1935/2018 & 1936/2018 Tribunal that the accident has occurred due to the rash and negligent driving of the car by its driver. Respondent No.1 is the RC owner, respondent No.2 is the insurer of truck lorry are jointly and severally liable to pay compensation to the petitioners in all the cases. Hence, Respondent No.2 is liable to pay the compensation to the petitioners in all the cases. Accordingly, issue No.3 in MVC No.1935/2018 and issue No.2 in MVC No..1936/2018 is answered partly in the Affirmative.
48. Issue No.4 in MVC No.1935/2018 and issue No.3 in MVC No.1936/2018:
For the foregoing reasons and the discussions as stated above, the petition filed by the petitioners in both cases deserves to be allowed in part with costs.
In result, I proceed to pass the following:
: O R D E R : The claim petitions filed under Section 166 of Motor Vehicles Act by the petitioners in both cases is hereby allowed in part with costs.54 MVC NO.1935/2018 & 1936/2018
The petitioners are awarded a total compensation of Rs.25,53,000/in MVC No.1935/2018, Rs.6,09,000/ in MVC No.1936/2018 with interest at the rate of 9% per annum from the date of petition, till deposit.
The Respondent No.1 and 2 are jointly and severally liable to pay the compensation awarded in both cases to the petitioners.
In both cases, respondent No.2 shall deposit the said compensation amount into the Tribunal within 60 days from the date of the order.
Out of the compensation amount in MVC No.1935/2018, the petitioner No.1 being wife entitle 30%, the petitioners No.2 and 3 being sons are entitle 25% each and petitioner No.5 being mother of deceased Babajan is entitle to 20% with proportionate accrued interest.
In MVC No.1935/2018, out of the compensation amount, 50% amount to be released in favour of petitioners No.1 and 5 through Epayment directly to the petitioners No.1 and 5 Account by obtaining the bank account details and remaining 50% shall be deposited in the name of petitioner No.1 and 5 in any nationalized bank for a period of three years.
55 MVC NO.1935/2018 & 1936/2018
Since the petitioner No.2 and 3 (in MVC No.1935/2018) are minor sons of Babajan, their entire share shall be deposited in any nationalised bank till they attains the age of majority.
Out of the compensation amount in MVC No.1936/2018, 50% shall be released in favour of the petitioner through E payment directly to the petitioner's Account by obtaining bank account details on proper identification and remaining 50% shall be deposited in the name of petitioner in any nationalized bank for a period of three years.
Advocate's fee is fixed at Rs.1,000/ each in both cases.
Keep original Judgment in MVC No.1935/2018 and copy in other case.
Draw Award Accordingly.
(Dictated to the stenographer, directly through online computer, thereof is corrected and then pronounced by me in the open Court on this the 11th January 2022) (R.MAHESHA.) XXIV ADDL. SCJ & XXII ACMM, MEMBER, MACT, BENGALURU.
56 MVC NO.1935/2018 & 1936/2018::A N N E X U R E::
LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONERS IN BOTH CASES: PW1 : Smt.Shabana Begum PW2 : Shamsuddin Khan PW3 : Dr.S.U.Shiva Prakash LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONERS IN BOTH CASES: Ex.P1 Copy of FIR Ex.P1(a) Copy of translated of FIR Ex.P2 Copy of complaint Ex.P2(a) Copy of translated copy of complaint Ex.P3 Copy of PM report Ex.P4 Copy of advanced death certificate Ex.P5 Copy of inquest Ex.P5(a) Translated copy of inquest Ex.P6 to Ex.P10 5 Notarized copy of Aadhar cards (original verified and returned back) Ex.P11 Copy of medical certificate Ex.P12 and Ex.P13 Copy of discharge summary Ex.P14 and 57 MVC NO.1935/2018 & 1936/2018 ExP15 Copy of OPD Slip Ex.P16 Scanning report Ex.P17 Medical bills (138 in Nos.) Rs.2,60,734/ Ex.P18 Prescriptions (63 in Nos.) Ex.P19 Lab reports (23 in Nos.) Ex.P.20 : Copy of charge sheet Ex.P.21 : Translated copy of charge sheet Ex.P.22 and 23 : 3 photos and one CD Ex.P.24 : Inpatient bill Ex.P.25 : Clinical examination report Ex.P.26 to 28 : Xrays films ( 3 in Nos) LIST OF WITNESSES EXAMINED ON BEHALF OF THE RESPONDENTS IN BOTH CASES: RW1 : Mahesh Prasad LIST OF DOCUMENTS MARKED ON BEHALF OF THE RESPONDENTS IN BOTH CASES: Ex.R1 : Certified copy of policy (R.MAHESHA) XXIV ADDL. SCJ & ACMM, MEMBER, MACT, BENGALURU.58 MVC NO.1935/2018 & 1936/2018