Bangalore District Court
Gangaraju H vs Srinivasa H.U on 4 March, 2020
IN THE COURT OF THE XI ADDL. SMALL CAUSES AND ADDL.
MACT., BANGALORE, (SCCH-12)
Present: Shri. MOHAMED ARIFULLA C.F.
B.Sc., LL.B.,
XI Addl. Small Causes Judge & ACMM,
Court of Small Causes,
Member, MACT12, Bengaluru.
Dated this the 4th day, of March 2020
MVC. NO.3468/2019
Petitioners : 1. Gangaraju H,G.
S/o Ganganna,
Aged 58 years.
2. Ravikumar H.G,
S/o Gangaraju H.G.,
Aged 30 years.
3. Ramya H.G,
D/o Gangaraju H.G.,
W/o Suresh .R,
Aged 28 years,
Subramanayanagara,
Ganeshnagudi,
Sundekuppa Road,
Nelamangala Taluk,
Bangalore Rural Dist.
The petitioners No.1 and 2
are R/at No.125,
Harokethanahalli, Makali Post,
Dasanapura Hobli,
Bangalore North.
(By.Sri. Manjappa, Advocate.)
V/s
SCCH-12 2 MVC No.3468/2019
Respondents: 1. Srinivasa H.U,
S/o Ugregowda,
No.7, 1st Main 'D' Cross,
Nagadevanahalli,
Bangalore560 056.
2. The Manager,
Iffco Tokio General Ins. Co. Ltd.,
No.141, 3rd Main Road,
5th Cross, Shanthi Towers,
Kasthuri Nagar,
N.G.E.F. Layout,
Banglaore.
Car bearing Reg. No.KA41C6516,
Policy No.110GBE0PH
Covering from 23012019 to 22012020
(R1 Exparte
R2 By Sri. T. Ramesh, Advocate)
JUDGMENT
The petitioners have filed this petition U/sec. 166 of M.V.Act for claiming compensation of death of Smt. Gangarajamma who died in the Motor Vehicle Accident.
2. Brief Facts of the Petition: The case of the petitioners is that on 01.05.2019 at about 4.15 p.m., near Doddabele Flyover, Nice road, Kengeri, Bangalore, when the deceased Gangarajamma was proceeding as pillion rider in TVS Jupiter bearing Reg. No.KA 02JY7015 from Sompura towards Tumkur road, at that time, one Car bearing Reg. No.KA41C6516 came from behind in rash and negligent manner by its driver dashed against the TVS Jupiter SCCH-12 3 MVC No.3468/2019 Back side and as a result of it, he sustained grievous injuries and died while shifting to the hospital.
3. Further contended that the deceased was hale and healthy and she was aged about 45 years at the time of accident and she was doing agriculturist and earning Rs.20,000/ p.m. and she was contributing her entire income for the maintenance of her family. Due to the said accident, the Petitioners lost their affectionate family member. The Petitioners were deprived of their love, affection, care and services due to the death of the deceased. The petitioners who were entirely depending upon the earnings of the deceased and they are facing lot of problems mentally and physically in day to day life apart from huge financial loss. Therefore the present petitioners prays for the compensation amount of Rs.35,00,000/ with interest.
4. After service of notices, the respondent no.1, inspite of service of notice has not appeared before this court and hence he was placed exparte.
Respondent no.2 being the insurer of the vehicle has filed objection contending that the petition is not maintainable either in law or on facts and same is laible to be dismissed in limine. Further admitted the issuance of insurance policy in respect of Car bearing reg.No.KA41C6516 and liability to indemnify the respondent no.1 is subject to the terms and conditons of the policy, provisions of M.V.act, valid and effective driving license and also subject to confirmation of Sec 64 VB of Insruance Act. Further contended that the insured has not complied Sec.134(c) of the M.V. Act and the SCCH-12 4 MVC No.3468/2019 Police authorities have not complied Section 158(6) of M.V.Act. Further stated that the driver of the Car bearing reg.No.KA41C 6516 had no valid and effective driving license authorizing him to drive such class or type of vehicle allegedly involved in the alleged accident. Though the owner was aware of this fact willfully and consciously allowed such a person to drive the vehicle in question. Hence, there was breach of contract and condition of policy. Further denied the age, avocation and income of the petitioner and also denied the manner of accident. Further seeks permission of this court to contest the matter on all grounds available to the insured under section 170 of M.V.Act, if the owner fail to contest the claim in collusion with the petitioner. Further stated that, he may be permitted to file additional written statement in due course of law under the change circumstances. The claim petition filed by the petitioner is exorbitant and highly disproportionate and without any basis. Hence, prayed to dismiss the claim petition.
5. On the basis of the above pleadings, the following issues were framed as under, by my Predecessor;
ISSUES
1. Whether the Petitioner proves that, on 01.05.2019 at about 4.15 p.m, Smt. Gangarajamma was proceeding in TVS Jupiter bearing Reg.No.KA02JY7015 as pillion rider from Sompura towards Tumkur road at that time, the driver of Car bearing Reg.No.KA41C6516 came at high speed in a rash and negligent manner and dashed against the TVS Jupiter from back side and caused accident, due to which Gangarajamma fell down, sustained grievous injuries and SCCH-12 5 MVC No.3468/2019 succumbed to the injuries while shifting to hospital?
2. Whether the Petitioner is entitled for compensation as sought for? If yes, How much and from whom?
3. What Order or Award?
6. In order to prove the above issues, the petitioner no.1 examined himself as P.W.1 and got marked documents at Ex.P.1 to P.14 and closed his side. On the other hand, the learned counsel for the respondent no.2 got examined its Assistant Managerlegal as R.W.1 and got marked documents at Ex.R.1 and Ex.R.2. Further got examined one K.T.Shivaiah, RTO as R.W.2 and got marked documents at Ex.R.3 and Ex.R.4.
7. Heard the arguments of both side and perused the entire materials placed on record and my answers to the above issues are as follows: Issue No.1 : In the Affirmative, Issue No.2 : In the Affirmative, Issue No.2 : In Partly Affirmative, Issue No.3 : As per final order for the following REASONS
8. ISSUE NO.1: According to the petitioner 01.05.2019 at about 4.15 p.m., near Doddabele Flyover, Nice road, Kengeri, Bangalore, when the deceased Gangarajamma was proceeding as SCCH-12 6 MVC No.3468/2019 pillion rider in TVS Jupiter bearing Reg. No.KA02JY7015 from Sompura towards Tumkur road, at that time, one Car bearing Reg. No.KA41C6516 came from behind drove the same in rash and negligent manner by its driver dashed against the TVS Jupiter Back side and as a result of it, he sustained grievous injuries and died while shifting to the hospital.
9. Further contended that the deceased was hale and healthy and she was aged about 45 years at the time of accident and she was doing agriculturist and earning Rs.20,000/ p.m. and she was contributing her entire income for the maintenance of her family. Due to the said accident, the Petitioners lost their affectionate family member. The Petitioners were deprived of their love, affection, care and services due to the death of the deceased. The petitioners who were entirely depending upon the earnings of the deceased and they are facing lot of problems mentally and physically in day to day life apart from huge financial loss. Therefore the present petitioners prays for the compensation amount of Rs.35,00,000/ with interest.
10. The petitioner no.1 i.e. husband of the deceased has filed his chief examination affidavit by reiterating the averments of the petition. P.W.1 has stated that, in the above said accident, his wife Gangarajamma sustained injuries and succumbed to the same. In support of the oral evidence, P.W.1 has produced Ex.P.1 copy of FIR, Ex.P.2 copy of Complaint, Ex.P.3 copy of spot mahazaar, Ex.P.4 copy of spot sketch, Ex.P.5 copy of M.V.report, Ex.P.6 copy of inquest report, Ex.P.7 copy of P.M report, Ex.P.8 SCCH-12 7 MVC No.3468/2019 Charge sheet, Ex.P.9 to 12 Notarized copy of Aadhaar cards, Ex.P.13 Notarized copy of D.L of petitioner no.1, Ex.P.14 Notarized copy of death certificate.
11. The respondent no.2 has not denied the negligence of the driver of the offending vehicle and it has taken a defense that the rider of the motor cycle bearing No.KA02JY7015 was riding the motor cycle with two pillion riders and therefore he was not having control over the vehicle and due to this the accident took place. In this regard the learned counsel for the respondent no.2 has canvassed judgment of our Hon'ble High Court of Karnataka AIR 2003 KAR 258 between P.S.Somaiah Vs Director, Bangalore Diary.
In the above reported judgment the rider of the motor cycle was riding the motor cycle with his three children as pillion riders and when he was overtaking the milk tanker belonging to the respondent of that case the children were thrown off the motor cycle and landed on the road and due to this the accident occurred.
12. The learned counsel for the respondent no.2 has also canvassed the judgment of Hon'ble High Court of Madras reported in 2004 ACJ 1827 Mad between Managing Director Vs Abdul Salam.
In the above reported judgment the rider of the motor cycle was also riding the motor cycle with two pillion riders and without noticing the bus which was coming in the opposite direction the SCCH-12 8 MVC No.3468/2019 rider of the motor cycle overtook the lorry and consequently the accident occurred.
13. However in the present case on hand, the police documents i.e., F.I.R., complaint, Mahazars, IMV report, Inquest report which have been marked as Ex.P.1 to 5 and these documents clearly disclose that the accident took place when the motor cycle was proceeding in front of the offending car and the car hit the motor cycle towards its back side and the deceased fell down from the motor cycle. As far as the supra judgments are concerned, the accident in the above cases took place when the riders of both cases were proceeded to takeover another vehicle, but in the present case on hand, though three riders were proceeding in the motor cycle, but they did not takeover any vehicle or committed any mistake or fault and only due to rash and negligent manner of the driving of the driver of the offending Car bearing Reg. No.KA41C6516, the accident took place and not due to the fault of the rider of the motor cycle. As such, it cannot be said that there was a contributory negligence on the part of the rider of the motor cycle only because he was riding with two pillion riders.
14. The Ex.P.5 and 6 inquest and P.M.report show that the death was caused due to the injuries sustained by her in the accident. Though the Respondent No.2 has taken a defense that the accident took place due to the negligence of the rider of the motor cycle, but, respondent No.2 has not produced any material before this Court in support of its defense and moreover the respondent no.2 has not challenged the FIR, charge sheet and SCCH-12 9 MVC No.3468/2019 other documents and the same remained unchallenged and undisputed.
15. The oral and documentary evidence of the petitioner discloses that, there was an accident as stated by him due to rash and negligent manner of driving of Car bearing Reg. No.KA41C 6516 by its driver, the wife of the petitioner died in the said accident. Moreover the learned counsel for the respondent No.2 has not at all elicited from the mouth of the petitioners to say that there was also a contributory negligence on the part of the rider of the motor cycle and also there is no material produced by the respondent no.2 to that effect. This fact clearly goes to show that the driver of the said car caused accident by driving the said vehicle in a rash and negligent manner and due to this the wife of the Petitioner no.1 and mother of the petitioner no.2 and 3 died in the said accident.
16. After considering all these facts and circumstances of the case, I come to conclusion that, the petitioners have proved that, in the above said accident, due to the rash and negligent driving by the driver of the offending Car bearing Reg. No.KA41C 6516, the wife of Petitioner No.1 sustained injuries in the above said accident and succumbed to the same. Hence, I answer issue No.1 in the Affirmative.
17. ISSUE NO.2 : As already discussed in issue No.1, the deceased Gangarajamma died in the accident and the petitioners SCCH-12 10 MVC No.3468/2019 being the legal heirs of deceased is entitled to get compensation. The petitioner has stated in the petition that the deceased was having 45 years age at the time of accident. The petitioner has not produced any birth certificate or any other material documents to show the age of the deceased Gangarajamma. However, the Inquest and post mortem report produced by the petitioner which have been marked as Ex. P.5 and 6 shows that the deceased was having the age of 45 years at the time of the death. Therefore, the appropriate multiplier is applicable as per the Sarla Verma's case is "14".
18. P.W.1 has stated in his evidence that the deceased was doing agricultural work and having income of Rs.20,000/ per month. In support of this, the petitioners have not produced any material. As such, this Tribunal comes to conclusion that the avocation of the deceased as unskilled labour and on considering the avocation and the age and also the relevant period, the notional income of the deceased is taken as Rs.10,000/ per month.
19. The petitioners being the husband, major son and major daughter of the deceased and therefore, they cannot be considered as dependents of the deceased.
20. In this regard the learned counsel for respondent no.2 has canvassed judgement of our Hon'ble High Court reported in ILR 2003 KAR 4672 between T.S.Rukmini and Another Vs M.B. Aiyappa and others, wherein it is held that;
SCCH-12 11 MVC No.3468/2019Motor Vehicles Act, 1988 (Central Act No.59 of 1988Sections 166(1) (c) and 173 (1) of the ActLoss of Dependency Claim petition by the widow and son of the deceased In law, the widow, though was living separately should be deemed to be a Dependent on the income of the deceased as the deceased had legal obligation to maintain her till the date of his death On facts, HELD There is no evidence to show that the appellant/widow of the deceased was judicially separately or she was self relaint She remained to be the legally wedded wife of the deceased till his death She is entitled to be compensated under the head 'loss of dependency' as she is the 'Dependent' and she is the LR of the deceased within the meaning of Section 166(1) (c) of the Act As the second appellant was major and a labourer by occupation, the deceased had no obligation in law to maintain his son.
and also canvassed another judgment of our Hon'ble High Court reported in ILR 2004 KAR 3268 between A.Manavalagan Vs A.Krishnamurthy and Others, wherein it is held that;
Motor Vehicles Act, 1988 Section 173(1)Compensation Method of computation of HELD Law contemplates two categories of damgaes on the death of a person The first is the pecuniary loss sustained by the dependent members of his family The second is the loss caused to the estate of the deceased In the first category, SCCH-12 12 MVC No.3468/2019 the action is brought by the legal representatives, as trustees for the dependents beneficially entitled In the second category the action is brought by the legal representatives, on behalf of the estate of the deceased and the compensation, when recovered, forms part of the assets of the estate.
21. In the above reported judgments, the Hon'ble High Court of Karnataka has laid down a propostition of law that though the petitioners are not dependent of the deceased, but they are entitled for compensation on the head of loss of estate.
22. As per Sec. 166(1)(c) of MV Act all the legal representatives of the deceased are entitled to claim compensation and even the married sons and daughters are also entitled for compensation under the loss of estate
23. The petitioners and deceased were financially independent and therefore, she should have spent 75% of her income towards her maintenance, personal and living expenses and the deceased would have saved or contributed to the family nest about 25% of her income. As the tribunal has determined the income of the deceased as Rs.10,000/ and took 25% thereof as the contribution to the family saving fund, which works out at Rs.30,000/ P.A. As per the Serla Verma's case, the multiplier of 14 is applicable to the case on hand and thus the loss of income SCCH-12 13 MVC No.3468/2019 under the loss of estate to the petitioner is at Rs.30,000X14 = Rs.4,20,000/.
24. The petitioners being the husband, son and daughter of the deceased and have lost their nearest family member and therefore, Rs.1,00,000/ is awarded under the head of loss of love and filial affection.
25. The petitioner has stated that he has performed the funeral ceremony of the deceased and also he has transported the body and therefore, it is just and fair to award Rs.10,000/ towards the funeral expenses and towards transportation charges.
Thus the calculation table stands as follows;
01 Loss of estate : Rs.4,20,000=00
02 Love & filial Affection : Rs.1,00,000=00
03 Funeral Expenses & : Rs. 10,000=00
Transportation
Total Rs.5,30,000=00
26. As already discussed in the issue no.1 the accident took place due to the negligence of the driver of the car bearing reg.No.KA41C6516 and the driver of the car was not possessing transport D.L at the time of the accident. The offending car is a passenger vehicle and the driver was not having transport endorsement/badge at the time of the accident. The respondent no.2 has got examined the official of the RTO as R.W.2 and his company official as R.W.1 and both of them have stated that the SCCH-12 14 MVC No.3468/2019 driver of the offending vehicle was not holding transport D.L to driver of the offending vehicle. In this regard, Ex.R.2 and R.4 D.L extracts have been produced and these docuements discloses that the driver of the offending vehicle was not possessing valid transport D.L and therefore the petition against the respondent no.2 is not maintainable. The learned counsel for the respondent no.2 has argued that the driver offending vehicle was not holding the driving licence at the time of the accident and therefore, prays to absolve the liability against the respondent no.2.
27. However the learned counsel for the petitioners has canvassed judgments of Hon'ble Supreme Court reported in AIR 2018 SC 592 between Pappu and others Vs Vinod Kumar Lamba and another, wherein it is held that;
Motor Vehicles Act, (59 of 1988) Section 149 Insurer's liability Accident ocurred due to rash and negligent driving of truck Insurer taking plea that driver of offending truck had no valid licence Except copy of driving licence of person, owner of offending truck not producing any evidence establishing that it was driven by authorised person having valid driving licence Fact that offending truck was duly insured would not per se make insurance company liable however, insurance company directed to pay award amount to claimants in first instance and in turn, recover same from owner of vehicle.
SCCH-12 15 MVC No.3468/201928. In the above reported judgments also the driver of the offending vehicle was not possessing D.L at the time of the accident and therefore the Hon'ble Supreme Court laid down a proposition of law that, in case of having policy with the insurer and not possessing of D.L by the driver, the insurance company shall pay the award amount to the claimants and inturn recover the same from the owner of the vehicle.
29. In view of the above discussion, I come to the conclusion that the Petitioners are entitled for compensation of Rs.5,30,000/ along with interest at the rate of 6% p.a., from the date of filing of petition till realization. The respondent No.1 is liable to pay compensation and whereas, the respondent no.2 insurance company is liable to satisfy the award and then recover the amount from the respondent No.1. Hence I answer the Issue no.2 in the Partly Affirmative.
30. ISSUE NO.3 : In view of the above discussion on Issue no.1 and 2, I proceed to pass the following;
ORDER The petition filed by the petitioners U/Sec. 166 of M.V Act is hereby partly allowed with cost.
The petitioners are entitled to get compensation of Rs.5,30,000/ with interest at the rate of 6% p.a. from the date of petition till its deposit.
SCCH-12 16 MVC No.3468/2019The respondent No.1 is liable to pay compensation and whereas, the respondent no.2 insurance company is liable to satisfy the award and then recover the amount from the respondent No.1.
Respondent No.2 is directed to deposit the compensation amount within a period of two months from the date of award.
Out of the above amount, the petitioner no.1 being the husband of the deceased, therefore he is entitled for 60% of the award amount and the petitioner no.2 and 3 being the son and daughter of the deceased are entitled for 20% each out of the award amount.
The petitioners shall deposit 50% out of the award amount in any Nationalized Bank/Scheduled Bank for a period of 3 years and the remaining 50% shall be paid to petitioners.
Advocate fee is fixed at Rs. 1,000/ .
Draw an award accordingly.
(Dictated to the stenographer on computer, computerized and printout taken by her, then corrected and pronounced in the open court on this the 4th day of March ,2020.) (Mohamed Arifulla C.F) XI Addl. Small Causes Judge & ACMM, Bengaluru.
SCCH-12 17 MVC No.3468/2019ANNEXURES List of witnesses examined for the petitioner/s:
P.W.1 : Gangaraju H.G. List of documents got marked for the petitioner/s:
Ex.P.1 : True copy of FIR
Ex.P.2 : True copy of Complaint
Ex.P.3 : True copy of Spot Mahazar
Ex.P.4 : True copy of Spot sketch
Ex.P.5 : True copy of MV report
Ex.P.6 : True copy of Inquest report
Ex.P.7 : True copy of PM report
Ex.P.8 : Charge sheet
Ex.P.912 : Notarized copy of Aadhaar cards (Original verified
and returned)
Ex,P,13 : Notarized copy of DL of 1st petitioner (Original
verified and returned)
Ex.P.14 : Notarized copy of Death Certificate
List of witnesses examined for the respondent/s:
RW.1 : Gireesha RW.2 : Vishnu Prasad
List of documents marked for the respondent/s:
Ex.R.1 : Copy of policy
Ex.R.2 : DL Extract
Ex.R.3 : Memo
Ex.R.4 : DL extract
(Mohamed Arifulla C.F)
XI Addl. Small Causes Judge
& ACMM, Bengaluru.