Bangalore District Court
Smt. Vani K. Raj vs Sri. Muhasir. V.P on 9 September, 2019
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND ADDL
MACT., BANGALORE, (SCCH-7)
Dated this the 9th Day September 2019
PRESENT: SMT.SUJATHA.S, B.COM., LL.B.,
IX Addl. Small Causes Judge & ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C. NO.4790/2018
PETITIONERS:
1. Smt. Vani K. Raj,
W/o Belle Krishna Raju,
Aged about 52 years,
2. Sri. Belle Krishna Raja,
S/o Srinivasa Bhat,
Aged about 56 years,
Both are residing at No.3023,
2nd Floor, 2nd Block, Janapriya Township,
Kadabagere,
Bangalore - 562 130.
(By Sri. Chikkanna B.H., Adv.)
-VS-
RESPONDENTS:
1. Sri. Muhasir. V.P.,
S/o M.C. Muhammedali,
Major in aged,
Residing at No.13/8,
2nd Main, 5th Cross,
Kalasipalyam,
Bangalore - 560 002.
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(R.C. Owner of Lorry bearing registration No.KA-01-AA-8004)
2. The Regional Manager,
The United India Insurance Company Ltd.,
Krishi bhavana, 6th Floor,
Hudson Circle,
Bangalore - 560 001.
(Insurer of Lorry bearing registration No.KA-01-AA-8004
vide Insurance Policy No.1023003117P109198774
valid from 28.09.2017 to 27.09.2018)
(R.1 - Exparte)
(R.2 - By Sri. B.A. Ramakrishna, Adv.,)
JUDGMENT
1. This petition is filed under Section 163-A of I.M.V. Act.
2. The Brief facts of the petitioners' case is that: On 03.01.2018 at about 6-00 a.m., the deceased was passenger of the Car bearing registration No.KA-05-ME-1798 traveling on NICE road near Rushabavathi River Bridge, the driver of Car drove the same in high speed and dashed against the Lorry bearing registration No.KA-01- AA-8004 from the back side and caused accident and due to impact deceased Akshaya Kumar and driver Prashanth were sustained injuries and succumbed to the injuries on the spot. Petitioners stated that prior to the accident the deceased was hale and healthy and had no vices and the deceased was aged about 25 years and he was working in Private company, Bangalore and earning a sum of Rupees 3,300/- p.m., and the Petitioners No.1 and 2 are the parents of the deceased and they are entirely depending upon the earnings of the 3 M.V.C.No.4790/2018 SCCH-7 deceased for their livelihood. Petitioners stated that they have transported the body of deceased by hiring ambulance by spending a sum of Rupees 10,000/- and they have incurred a sum of Rupees 50,000/- towards transportation, funeral and obsequies ceremonies. Petitioner stated that the driver of Lorry bearing registration No.KA- 01-AA-8004 is solely responsible for the cause of the said accident and Kengeri Traffic police have registered a case in Crime No.01/2018 for the offence punishable under Section 279 and 304(A) of IPC against the driver of Car bearing registration No.KA-05-ME- 1798. Petitioners stated that the Respondent No.1 is the R.C. Owner and the Respondent No.2 is the insurer of Lorry bearing registration No.KA-01-AA-8004 are jointly and severally liable to pay compensation to them. Under these circumstances, the Petitioners prayed to allow the petition.
3. After service of summons, Respondent No.1 not appeared before the court, hence he was placed Exparte. The Respondent No.2 appeared before the court and filed objection statement.
4. In the objection statement Respondent No.2 stated that the petition is not maintainable either in law or on facts. The Respondent No.2 stated that as alleged accident is between two vehicles, the owner and insurer of other vehicle, i.e., the Car in which the deceased was traveling are necessary parties as such the petition is bad for non-joinder of necessary parties. Respondent No.2 stated that admittedly the driver of the Car in which the deceased Akshay Kumar. B.K., was traveling was guilty of driving the same in a rash and negligent manner and causing the accident and was Charge 4 M.V.C.No.4790/2018 SCCH-7 Sheeted for the same and as such the question of the driver of the Lorry bearing registration No.KA-01-AA-8004 driving the same in a rash and negligent manner does not arise and as such the petition making such an allegation, which is false and petition is not maintainable. Respondent No.2 admits having issued the policy of insurance, in respect of Lorry bearing registration No.KA-01-AA-8004 for the period from 28.09.2017 to 27.09.2018. Respondent No.2 stated that the liability if any of it, is subject to terms, conditions, scope, ambit and also the exceptions of the policy. Further the liability if any, of the Respondent No.2 is subject to the driver of the vehicle having a proper and valid driving licence to drive the vehicle allegedly involved in the accident at the relevant time. Respondent No.2 denied the age, avocation and income of deceased. Respondent No.2 denies all the averments and allegations made in unnumbered paragraph 5 of column No.22 with regard to the alleged rash and negligent driving of the Lorry bearing registration No.KA-01-AA-8004 and the consequent death of one Akshay Kumar.B.K., and stated that, the same was on account of the negligent driving of the Car bearing registration No.KA-05-ME-1798 by its driver in which the deceased was admittedly traveling as a passenger, which becomes manifest by a perusal of the petition averments and the police records, which the Petitioners are relying on and in view of the same the Respondent No.2 is not liable to pay any compensation and to indemnifying the insured. Respondent No.2 stated that the owner of the vehicle allegedly involved in the accident has not kept it informed of the accident and has also not furnished the necessary information in this regard and even in contesting the said claim petition the owner 5 M.V.C.No.4790/2018 SCCH-7 has not extended any co-operation to it and it has reason to believe that the owner has colluded with the Petitioners and in the circumstances explained supra, it craves leave of this Court to contest the said claim petition on all counts including the one of actionable negligence and the quantum of compensation as per the provisions of Section 170 of M.V. Act. Respondent No.2 stated that any award that may be passed is subject to the condition that the Petitioners have not filed any claim petition on the same cause of action anywhere in India before any claims Tribunal or any other Authority and that they have not received any compensation from them including the one from the insurer of the Car bearing registration No.KA-05-ME-1798. Under these circumstances the Respondent No.2 prayed to dismiss the petition.
5. On the basis of the above pleadings, issues are framed as follows:
ISSUES
1. Whether the Petitioners prove that they are legal heirs of deceased Sri. Akshay Kumar B.K., S/o Belle Krishna Raja?
2. Whether the Petitioners prove that Akshay Kumar B.K., was died on account of road traffic accident took place near Vrushabhavathi River Bridge, Nice Road, Kengeri, Bengaluru due to rash and negligent driving of the driver of the Lorry bearing registration No.KA-01-AA-8004 dated 03.01.2018 at about 6-00 A.M.,?
3. Whether the Petitioners are entitled for compensation? If so, what is the quantum? From Whom?6 M.V.C.No.4790/2018
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4. What Order or Award?
Since the petition is filed under Section 163-A of IMV Act this court deleted issue No.2 and reframed issue No.2 as follows:
REFRAMED ISSUE NO.2 Whether the Petitioners prove that, the Car bearing registration No.KA-05-MV-1798 and Lorry bearing registration No.KA-01-AA-8004 are used and involved in the road traffic accident and in the said accident, Sri. Akshay Kumar B.K., sustained fatal injuries and succumbed injuries?
6. In order to prove the case of Petitioners, the Petitioner No.2 got examined as P.W.1 and got marked 11 documents as per Exs.P1 to P11. The Respondent No.2 not adduced any evidence.
7. Heard the arguments. The Learned Counsel for Petitioner No.2 relied on decision laid-down in AIR 2017 Supreme Court Page 5710.
The Learned Counsel for Respondent No.2 relied on decision laid- down in 2007 AIR SCW 3591, 2011 (4) AIR KAR - R- 334 and 2011(2) AIR - KAR-R-21. This Court taken note of ratio laid down in these citations.
8. My findings on the above said issues are as under:
Issue No.1 : Partly in the Affirmative
Issue No.2 : Deleted
Reframed Issue No.2 : In the Affirmative
Issue No.3 : Partly in the Affirmative.
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Issue No.4 : As per final order.
for the following:
REASONS
9. Issue No. 1 : P.W.1 stated that he is the father and Petitioner No.1 is the mother of deceased Akshay Kumar.B.K., who died in a road traffic accident occurred on 03.01.2018. P.W.1 stated that, he and his wife are legal heirs and dependants of deceased Akshay Kumar. In this regard PW.1 has produced Ex.P.19 Notarized copy of SSLC Marks Card of Akshyakumar.B.K., Ex.P.10 Notarized copy of his Adhar Card and Ex.P.11 Notarized copy of Adhar Card of Petitioner No.2. On going through these documents it is clear that the Petitioner No.1 is the mother and the Petitioner No.2 is the father of deceased Akshay Kumar.B.K. Petitioner No.1 being the mother can be considered as dependent of deceased Akshay Kumar.B.K. However Petitioner No.2 being the father cannot be considered as dependent of deceased Akshay Kumar. B.K. Accordingly I have answered Issue No.1 Partly in the Affirmative.
10. REFRAMED ISSUE No.2 : P.W.1 stated that, on 03.01.2018 at about 6-00 a.m., his son was proceeding as a passenger in the Car bearing registration No.KA-05-ME-1798 on NICE road near Rushabavathi River Bridge, the driver of Car drove the same in high speed and dashed against the Lorry bearing registration No.KA-01- AA-8004 from the back side and caused accident and due to impact his son Akshaya Kumar and the driver of car by name Prashanth were sustained injuries and succumbed to the injuries on the spot. P.W.1 stated that the driver of the Lorry bearing registration No.KA-
8 M.V.C.No.4790/2018SCCH-7 01-AA-8004 is solely responsible for the accident and Kengeri Traffic police have registered a case against the driver of Car bearing registration No.KA-05-ME-1798.
11. In order to prove the case of Petitioners, P.W.1 has produced Ex.P1 - FIR, Ex.P2 - Complaint, Ex.P.3 Spot Mahazar, Ex.P.4 Sketch, Ex.P.5 IMV Report, Ex.P.6 Inquest Report, Ex.P.7 Postmortem Report and Ex.P.8 Charge Sheet. In the cross-examination by the counsel for Respondent No.2 P.W.1 stated that his son was proceeding in the Car along with Prashanth and Prashanth was driving the said Car. He admitted that FIR registered against Prashanth and after investigation the police filed Charge Sheet against the Prashanth. He admitted that in the complaint it is stated that the driver of Car tried to overtake the Lorry from left side and dashed against the Lorry, as a result the said accident occurred. He admitted that the documents produced by him shows that the accident occurred due to the rash and negligent act of driver of Car. He admitted that at the time of drawing Ex.P.6 Inquest Report he has given statement before the Police that, the accident occurred due to rash and negligent act of driver of Car.
12. In this case on going through Ex.P.1 FIR and Ex.P.2 Complaint it is noticed that one H.K. Bommegowda has lodged complaint on 03.01.2018 and based on said complaint Kengeri Traffic Police registered crime No.01/2018 against the driver of Car bearing registration No.KA-05-ME-1798 for the offences punishable under Section 279 and 304(A) of IPC. Ex.P.3 Spot Mahazar and Ex.P.4 Sketch reveals that the accident occurred near Vrushabhavathi River 9 M.V.C.No.4790/2018 SCCH-7 Bridge, NICE Road, Kengeri, Bengaluru City. In Ex.P.5 IMV Report the Motor Vehicle Inspector reported that rear chassis, rear indicator, rear mudguard and rear side indicator of vehicle bearing registration No.KA-01-AA-8004 sustained damages and front both head light, front bumper, front fender, front bonnet and radiator of vehicle bearing registration No.KA-05-ME-1978 sustained damages. Ex.P.6 Inquest Report reveals that the inquest of dead body of Akshay Kumar B.K., was conducted at Rajarajeshwari Hospital, Bengaluru. In Ex.P.7 Postmortem Report the doctor opined that the cause of death is due to shock and hemorrhage as a result of multiple injuries sustained. Further in Ex.P8 Charge Sheet it is stated that the driver of Car bearing registration No.KA-05-ME-1798 driven the same in rash and negligent manner and dashed against the on going Lorry bearing registration No.KA-01-AA-8004 and as result the driver of Car and Akshay Kumar who was proceeding in the said Car died on the spot and abated Charge Sheet is filed against Prashanth.G., the driver of Car bearing registration No.KA-05-ME-1798 for the offences punishable under Section 279 and 304(A) of IPC.
13. The counsel for the 2nd Respondent argued that the accident occurred due to the rash and negligent act of driver of Car in which deceased Akshaya Kumar was proceeding, Charge Sheet is filed against the driver of Car and the driver of the Lorry is no way responsible for the cause of accident, hence the Respondent No.2 being the Insurer of Lorry is not liable to pay compensation to the petitioners and petition is bad for non joinder of necessary parties since owner and Insurer of Car are not made as parties to the 10 M.V.C.No.4790/2018 SCCH-7 proceedings. It is to be noted that, the present petition is filed under Section 163(A) of IMV Act. As per documents produced by the petitioners accident took place between Car and Lorry. Since the petition is filed U/s.163A of the M.V.Act, the Petitioners need not prove rash and negligent act and only involvement of the vehicle is sufficient to claim the compensation U/s.163A of the M.V.Act. From the above said material evidence, both oral and documentary, it is clearly proved that, both the Car bearing registration No.KA-05-ME- 1798 and the Lorry bearing registration No.KA-01-AA-8004 are very much used in the said road traffic accident, wherein, the deceased had sustained injuries and died on the way to the Hospital. Accordingly I have answered re-framed Issue No.2 in the Affirmative.
14. ISSUE No.3 : Since the present petition is filed under Section 163 (A) of IMV Act to compute the quantum of compensation, this Court has relied on the Gazette Notification of The Ministry of Road Transport and Highways Notification, New Delhi, 22 nd May, 2018 S.O.2022(E)-In exercise of the powers conferred by sub section(3) of section 163A of the Motor Vehicles Act, 1988, (59 of 1988) the Central Government, keeping in view the cost of living, hereby makes the following amendment to the Second Schedule to the said Act viz.,.
In the Motor Vehicles Act, 1988 for the Second Schedule, the following Schedule shall be substituted viz., 11 M.V.C.No.4790/2018 SCCH-7 "The SECOND SCHEDULE OF S.163A SCHEDULE FOR COMPENSATION FOR THE THIRD PARTY FATAL, ACCIDENT/INJURY CASES CLAIMS
1)(a) Fatal accidents:
Compensation payable in case of Death shall be five lakhs Rupees.
On and from the date of 1 st day of January 2019, the amount of compensation specified in the clauses of paragraph (1) shall stand increased by 5 per cent annually."
The notifications shall come into form on the date of its publication in the Official Gazette".
15. On applying the principles of Gazette Notification, it is just and proper to award Rs.5,25,000/- towards loss of dependency. Further the Petitioners are entitled for compensation of Rs.2,500/- under the head of loss of estate and Rs.2,000/- under the head of funeral and obsequies ceremony expenses.
16. Hence, the Petitioners are entitled for total compensation of Rupees 5,29,500/- under different heads as below.
Sl.No. Head of Compensation Amount/Rs.
1. Loss of dependency 5,25,000-00
2. Loss of estate 2,500-00
3. Funeral & Obsequies 2,000-00
ceremony expenses
Total 5,29,500-00
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17. While answering reframed Issue No.2, this Court has already observed and come to the conclusion that, both the Car bearing registration No.KA-05-ME-1798 and the Lorry bearing registration No.KA-01-AA-8004 are very much used in the said road traffic accident, wherein, the deceased had sustained injuries and died on the spot. The Petitioners have filed the present petition under Section 163-A of the M.V. Act as against the Respondents, who are the owner and insurer of the Lorry bearing Registration No.KA-01-AA-8004. The Petitioners can file the petition claiming compensation either as against the present Respondents or the owner and insurer of the Car bearing registration No.KA-05-ME-1798, wherein, the deceased was proceeding at the time of accident.
18. Respondent No.2 admitted the issuance of Insurance Policy to Lorry bearing registration No.KA-01-AA-8004. This Court gone through the decision laid down by the Hon'ble High Court of Karnataka in M.F.A.No.103557/2015 (MV). In the said Judgment the Hon'ble High Court of Karnataka observed that the rate of interest is to be 6% p.a., keeping in line with statutory ceiling limit. Under the circumstances, Respondent No.1 being the owner and Respondent No.2 being the insurer of offending vehicle are jointly and severally liable to pay compensation to the Petitioner with interest at the rate of 6% P.A. from the date of petition till realization. Accordingly, Issue No. 3 is answered partly in the Affirmative.13 M.V.C.No.4790/2018
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19. Issue No.4: In view of above discussions, I proceed to pass the following:
ORDER The petition filed by the petitioners under Sec. 163-A of I.M.V Act is hereby partly allowed with costs.
The Petitioners are entitled for total compensation of Rupees 5,29,500/- along with future interest at the rate of 6% p.a. from the date of petition till realization of entire amount.
The respondent No.2 being the insurer of offending vehicle is directed to deposit compensation amount within two months from the date of award.
Out of the total compensation amount, Petitioner No.1 is entitled for 70% share and Petitioner No.2 is entitled for 30% share.
The entire share of Petitioner No.1 and 2 are ordered to be released in their favour by issuing an account payee cheque with proper identification.
The Advocate's fee is fixed at Rs.1,000/-.
Draw award accordingly.
(Dictated to the stenographer, computerized by him, corrected by me and then pronounced in the open Court on 09.09.2019).
(SUJATHA S), IX Addl. Small Causes Judge & ACMM, Court of Small causes, Member, MACT-7, Bangalore.14 M.V.C.No.4790/2018
SCCH-7 ANNEXURE
1. LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONERS;
P.W.1. Sri. Belle Krishna Raju
2. LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONERS:
Ex.P1 FIR
Ex.P2 Complaint
Ex.P3 Spot Mahazar
Ex.P4 Sketch
Ex.P5 IMV Report
Ex.P6 Inquest Report
Ex.P7 Postmortem Report
Ex.P8 Charge Sheet
Ex.P9 Notarized copy of SSLC Marks Card of Akshaya
Kumar.B.K.
Ex.P10 Notarized copy of Adhar Card of Vani. K. Raj Ex.P11 Notarized Xerox copy of Adhar Card of Belle Krishna Raja
3. LIST OF WITNESSES EXAMINED FOR THE RESPONDENTS:
- NIL -
4. LIST OF DOCUMENTS MARKED ON BEHALF OF RESPONDENTS:
- NIL -
(SUJATHA S), IX Addl. Small Causes Judge & ACMM, Court of Small causes, Member, MACT-7, Bangalore.