Bangalore District Court
Smt.Vinoda.R.S vs Sri.Krishnappa on 4 January, 2022
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS
TRIBUNAL, BANGALORE CITY.
SCCH14
Present: Smt.Parveen A Bankapur,
B.Com.LL.B.(Spl),
Member, MACT,
XVI ADDL. JUDGE,
Court of Small Causes,
BENGALURU.
MVC No.7685/2019
Dated this the 4th day of January 2022
Petitioner/s : 1.Smt.Vinoda.R.S.
W/o Late No.Mohan Babu,
Aged about 23 years.
2.Kum.Jeegisha Gowda,
D/o Late N.Mohan Babu,
Aged about 3 years.
3.Kum.Ghanavi H.M.
D/o Late N.Mohan Babu,
Aged about 1 year.
4.Smt.Bhagyamma,
W/o Nagarajappa,
Aged about 47 years.
5.Sri.Nagarajappa,
S/o Laxmayya @ Lakshmappa,
Aged about 50 years.
Since the petitioners No.2 & 3
are minors, R/by their mother
and natural guardian the 1st
petitioner herein
All are residing at
SCCH14 2 MVC.7685/2019
Hulagummanahalli Village,
Kaiwara Post,
Chinthamani Taluk,
Chikkaballapura District.
(By pleader Sri.N.M)
V/s
Respondent/s 1.Sri.Krishnappa,
S/o K.Veerappa,
R/at Konganhalli Village,
Thalagavara Post,
Chinthamani Taluk,
Chikkaballapura District
563125.
(By pleader Sri.B.N)
2.United India Insurance
Company Limited,
Regional Office,
5th Floor, Krushi Bhavana,
Nrupathunga Road,
Hudson Circle,
Bengaluru 560 001.
(By pleader Sri.V.R)
:JUDGMENT:
The petitioners have filed this claim petition U/Sec.166 of M.V. Act for awarding compensation of Rs.45,00,000/ on account of death of N.Mohan Babu S/o Nagarajappa in a road traffic accident dated 15.11.2019.
SCCH14 3 MVC.7685/20192. In brief, the case of the petitioners may be stated as under:
It is alleged that, on 15.11.2019 at about 6.20 p.m., when the deceased N.Mohan Babu was riding a Hero Honda glamour motor cycle bearing No.KA40L6225. When he reached near Munaganahalli gate, on Bengaluru Kadapa road, Chinthamani Taluk, Chikkaballapura District, at that time, one Tractor & Trailer bearing Reg.No.KA08T4512 & KA08T4513 was parked negligent and unmindfully on the middle of the road without exhibiting parking lights or any other indications or signal. The deceased inspite of taking due care and caution, could not see the said tractor and trailer parked on the road due to darkness and there were no parking lights and also due to glazing lights emitted from opposite coming vehicles. As a result, the deceased was unable to avoid his vehicle from dashing against the said tractor and trailer from behind. Due to impact, the deceased sustained grievous head injuries and succumbed to the said injuries on the spot.
Prior to this accident, deceased N.Mohan Babu was hale and healthy person and he was working as a cook under various contractors for marriages and functions and earning a sum of Rs.30,000/p.m. It is stated by the petitioners that, the said accident was occurred due to negligent parking of tractor and trailer bearing No.KA08T4512 & KA08T4513.SCCH14 4 MVC.7685/2019
The respondent No.1 is the owner and respondent No.2 is the insurer of the said offending vehicle. Therefore, the petitioners are constrained to file this claim petition.
3. After service of notice, the respondent no.1 and 2 appeared through their respective counsel and filed separate writtenstatement.
The respondent No.1 admits that he is the owner and he got insurance in respect of tractor and trailer and it was valid on the date of accident. The respondent No.1 denies the entire averments made in the petition. Further denied the age, avocation and income of the deceased. Hence, on other grounds, the respondent No.1 prayed for dismissal of the claim petition with costs.
The respondent No.2 admitted the issuance of insurance policy in respect of tractor bearing No.KA08T4512 & KA 08T4513 and policy is in force as on the date of the accident, then the liability will be subject to the terms and conditions of the policy. It is further contended that the accident took place due to rash and negligent riding of motor cycle and the rider of motor cycle was not possessing valid and effective licence at the time of accident. It is necessary to bring on record the owner and insurer of motor cycle. Further denied the age, avocation and income of the petitioner. The respondent No.2 contended that, the compensation amount claimed by the petitioners are SCCH14 5 MVC.7685/2019 excessive and exorbitant. Hence, Respondent No.2 has sought for dismissal of the petition with costs.
4. On the basis of above pleadings, the following issues have been framed:
ISSUES
1. Whether the petitioners prove that, they are the legal representatives of the deceased?
2. Whether the petitioners prove that N.Mohan Babu S/o Nagarajappa died due to injuries sustained by him in an accident occurred on 15.11.2019 at about 6.20 p.m., near Munaganahalli gate, on BengaluruKadapa road, Chinthamani Taluk, Chikkaballapura District, arising due to rash and negligent driving of driver of tractor and trailer bearing Reg.No.KA 08T4512 & KA08T4513?
3. Whether the Petitioners are entitled for compensation? If so, how much and from whom?
4. What Order or Award?
5. In order to prove their case, petitioner No.1 is the wife of the deceased has been examined as PW1 and got marked documents as Ex.P.1 to Ex.P.18. On the other hand, respondents have not adduced any oral or documentary evidence.
6. I have heard both sides. The learned counsel for the petitioner has relied on the citations reported in 2021 SCCH14 6 MVC.7685/2019 ACJ 734 (Narasamma and others Vs. Magma HDI General Insurance Company Ltd., and another) Perused the materials available on record and citations relied by the counsel for the petitioner.
7. My findings to above raised issues are as follows;
Issue No.1 : In the Affirmative
Issue No.2 : In the Affirmative
Issue No.3 : Partly in the affirmative
Issue No.4 : As per final order,
for the following;
:R E A S O N S:
8. Issue No.1: In this case, the petitioner No.1 is the wife, petitioner No.2 and 3 are daughters and petitioner No.4 and 5 are parents of the deceased N.Mohan Babu. In order to prove that they are legal heirs of the deceased, the PW.1 has produced notarized copies of Aadhar cards of deceased and petitioner No.1 to 5 at Ex.P.9 to 14 respectively. Further the petitioners have produced Ex.P15 to 18 Election ID of deceased and petitioners. These documents reveals that, Petitioner No.1 is wife, petitioner No.2 and 3 are daughters and petitioner No.4 & 5 are parents of the deceased. Hence, petitioner No.1 to 5 are the dependents and legal representatives of the deceased. Hence, I answer the Issue No.1 in the affirmative.SCCH14 7 MVC.7685/2019
9. Issue No.2: Since the petitioners have filed this petition U/s.166 of M.V. Act therefore, the burden is upon them to prove the said accident and not only the said accident but also the alleged negligent parking of tractor and trailer bearing Reg.No.KA08T4512 & KA08T4513.
10. On perusal of evidence available on records, it reveals that, to prove their case, the petitioner No.1 has examined herself as PW1 and she has stated in her evidence by reiterating the contents of petition. To prove the involvement of the alleged vehicle in the accident and to prove the negligent parking of the driver of tractor and trailer, in support of her oral evidence, the petitioners have relied upon the copy of prosecution papers and the same are marked as Ex.P.1 to P.7 i.e.,FIR with complaint, spot panchanama, seizer mahazar, IMV report, inquest panchanama, PM report and charge sheet. On perusal of Ex.P.1 and P.7 i.e., FIR with complaint and charge sheet, it reveals that, Chinthamani Rural Police station have registered a case in Cr.No.422/2019 against the driver of tractor and trailer bearing Reg.No.KA08 T4512 & KA08T4513 and after completion of investigation, the investigating police officer has filed the charge sheet as against the driver of tractor and trailer alleging that the driver of tractor and trailer has committed an offence punishable under Section 337 and 304A of IPC.SCCH14 8 MVC.7685/2019
11. The documents marked at Ex.P1 to Ex.P7 makes it clear that, the accident was taken place on 15.11.2019 at about 6.20 p.m., The driver of the tractor and trailer bearing Reg.No.KA08T4512 & KA08T4513 parked negligently without signal lights. In the result, deceased was unable to avoid his vehicle from dashing against the said tractor and trailer from behind. Due to the impact, deceased sustained grievous injuries and succumbed to injuries on the spot.
12. The complaint was lodged on the same day by brother of deceased. On the same day of the incident the police have conducted the spot mahazar and conducted the inquest panchanama of the deceased body. After detailed investigation I.O. has filed chargesheet against the driver of the tractor and trailer, these documents would support the case madeout by the petitioners in respect of alleged negligent parking by the driver of the said offending vehicle.
13. The counsel for the respondent No.2 subjected PW1 to the crossexamination and suggested PW1 that they have falsely got implicated the said tractor & trailer in this case and no negligence on the part of the driver of the tractor & trailer, which is denied by the PW1.
14. On the other hand, the respondents have not adduced any oral or documentary evidence.SCCH14 9 MVC.7685/2019
15. Besides, as stated above, the jurisdictional police have investigated the accident in question and filed the 'A' charge sheet at Ex.P7 wherein the police have made specific allegation that the accident in question had taken place because of the actionable negligence of the driver of the offending vehicle. Besides, the respondents have not produced anything to show that they have challenged the correctness of the 'A' charge sheet filed by the jurisdictional police; hence, it is sufficient to conclude that the materials available on record are sufficient to conclude that the accident in question had taken place because of the actionable negligence of the driver of the offending vehicle.
16. Besides, it is well settled that in motor vehicle accident compensation cases the strict proof of negligence is not required. This view of this court receives support from the law declared by the Hon'ble Apex Court in the decision reported in 2009 (13)SCCpage530 in the case of Bimla Devi and others Vs Himachalapradesh Road Transport Corporation and another and another decision reported in AIR 2011SC1504 in the case of Paraeshwari Vs Amir Chand and others. Thus, even this ratio laid down by the Hon'ble Apex Court is also sufficient to conclude that this court is not supported to look for strict proof of negligence on the part of the driver of tractor & trailer bearing Reg.No.KA 08T4512 & KA08T4513.SCCH14 10 MVC.7685/2019
17. It is relevant to note that the petitioners have produced Ex. P.5 and 6 i.e., Inquest panchanama and PM report of deceased N.Mohan Babu. Therefore, after considering all the police documents and evidence of PW1 in my opinion, the petitioners have proved that the said accident was only because of actionable negligence on the part of the driver of offending vehicle and deceased was sustained grievous injuries in the said accident and died. With these observations, I have answered issue No.2 in the Affirmative.
18. Issue No.3: The petitioners have proved the Issue No.1 and the Issue No.2. The respondent No.2 has not seriously disputed the existence of insurance policy.
Therefore, under these circumstances, petitioners No.1 to 5 being the legal heirs of the deceased N.Mohan Babu are entitled for compensation.
19. The contentions of the petitioners in the petition that deceased was working as an agriculturist and also working as a cook and earning income of Rs.30,000/ per month and PW1 deposed in her evidence that deceased was working as agriculturist and cook and earning Rs.30,000/ per month. But the petitioners have not produced any documents with respect that, deceased was working as agriculturist and cook and earning income of Rs.30,000/ per month nor they have examined any witnesses. Therefore, only oral evidence of the PW1 is not sufficient to hold that SCCH14 11 MVC.7685/2019 deceased had monthly income of Rs.30,000/ p.m. Therefore, this tribunal has to assess the notional income of the deceased by taking into consideration of his age, his occupation, place of residence and minimum wages and date of accident etc. After considering all these aspects, I am inclined to take notional income of the deceased as Rs.12,000/ p.m.
20. As already discussed in issue No.1, petitioner No.1 is the wife, petitioner No.2 & 3 are minor daughters and petitioner No.4 and 5 are parents of deceased who is aged 30 years. Under these circumstances, petitioners No.1 to 5 can be treated as dependents on the income of the deceased.
21. As per Ex.P5 and 6 Inquest Panchanama and PM report, the age of the deceased at the time of accident was 30 years. In the Aadhar card of deceased as per Ex.P9, the year of birth is mentioned as 1989. The date of accident is 15.11.2019. Therefore, the age of the deceased is 30 years as on the date of accident. Hence, the proper multiplier for the age group from 26 to 30 years is "17".
22. Besides, so far as adding of future prospects to the income of deceased is concerned, however, I have relied upon the ruling reported in 2018 ACJ 5(SC) (Hemraj Vs Oriental Insurance Co., Ltd., & Ors) wherein it is held as under:
"QuantumFatal accident Principles of assessmentFuture prospectsDeceased aged SCCH14 12 MVC.7685/2019 40Upholding objection of insurance company that principle of addition on account of future prospects is not applicable where income of the deceased is determined by guesswork, High court disallowed the addition of 50 percent made by the tribunal for future prospects while computing compensationWhether addition on account of future prospects is admissible where minimum income is determined on guesswork prospects is admissible where minimum income is determined on guesswork in the absence of proof of income Held: yes; there cannot be distinction where there is evidence of income and where minimum income is determined on guesswork; executing court directed to recompute entitlement of claimants by addition 40 percent of income for future prospects and make corresponding deduction towards personal expenses."
And also considering recent judgment passed by the Hon'ble Supreme Court in Civil Special Leave Petition(Civil No.25590/2014 dated 31102016 (National Insurance Company Ltd., VS Pranay Sethi and others). Wherein it is held that, the person who is self employed and his age is below 40 years at the time of accident, 40% future prospects and his age is above 50 years and below 60 years at the time of accident, 25% and 10% respectively future prospects has to be added to the income of the deceased.
23. In this case, the deceased was aged about 30 years as on the date of accident. Considering the same, if 40% SCCH14 13 MVC.7685/2019 future prospects is added to the income of the deceased, it would work out at Rs.16,800/ per month (12,000 + (40%)
24. Further as stated above that, petitioner No.1 is wife, petitioner No.2 and 3 are daughters and petitioner No.4 and 5 are parents of deceased are dependents on the income of the deceased, hence, there are 5 dependents, so, 1/4 th of the income of the deceased shall be deducted towards his personal and living expenses. On such deduction, income of the deceased comes to Rs.12,600/p.m.
25. The income of the deceased is taken as Rs.12,600/ p.m. and the multiplier 17 is applied, then the loss of dependency comes to Rs.25,70,400/ (Rs.12,600 x 12 x 17). Considering the above facts, I deem it just and reasonable to grant compensation of Rs.25,70,400/ under the head of loss of dependency.
26. Further, so far as awarding compensation under other conventional heads are concerned, the petitioner has stated that, they have spent huge amount towards shifting of dead body and performing of funeral and obsequies ceremony. In this regard, the Hon'ble Supreme Court judgment passed in Civil Special Leave Petition(Civil No.25590/2014 dated 31102016 (National Insurance Company Ltd., VS Pranay Sethi and others). Wherein it is held that, as far as conventional heads are concerned the SCCH14 14 MVC.7685/2019 petitioner is entitled funeral expenses of Rs.15,000/ and the petitioner No.1 being wife of the deceased is entitled for compensation of Rs.40,000/ under the head for filial consortium and Rs.15,000/ under the head of loss of estate.
27. Considering the above facts and circumstances of the case and for the above reason, I am of the opinion that, the petitioners entitled for total compensation under the following heads:
1. Loss of dependency Rs.25,70,400/
2. Medical expenses
3. Transportation of dead body Rs. 15,000/ and Funeral Expenses
4. Filial consortium Rs. 40,000/
5. Loss of estate Rs. 15,000/ Total Rs.26,40,400/ So, petitioners are entitled for the total compensation of Rs.26,40,400/ only.
28. Liability: The petitioners have proved that said accident occurred because of negligence on the part of driver of offending vehicle and there was no any dispute about insurance coverage to the said vehicle as on the date of accident. The respondent No.2 has taken several contentions like, petitioners have not examined the eye witness of the accident. And offending vehicle was not involved in the SCCH14 15 MVC.7685/2019 accident. It is already proved that accident was occurred due to negligence of the driver of offending vehicle. Therefore, the objection raised by the respondent No.2 cannot hold any water. Therefore, I held that the respondents have failed to prove the violation of terms and conditions of insurance policy. Therefore, the petitioners are entitled for compensation from respondent No.2.
Further, by considering the present days FD rate of interest in the nationalized bank it is just and necessary to direct the respondent to pay the compensation amount with interest at the rate of 7% per annum from the date of petition till realization of entire compensation. Hence, I have answered issue No.3 under consideration partly in the affirmative.
29. Issue No.4: For the foregoing reasons, I proceed to pass the following;
ORDER The claim petition filed by the petitioners U/Sec.166 of M.V.Act is hereby allowed partly with costs.
The petitioners are entitled for total compensation of Rs.26,40,400/ along with interest at the rate of 7% per annum from the date of petition till its realization.
The respondents No.1 & 2 are jointly and severally liable to pay said compensation amount SCCH14 16 MVC.7685/2019 to the petitioners. The respondent No.2 being insurer, shall deposit the compensation amount within two months from the date of this order.
After deposit of compensation amount, 60% share is apportioned in favour of petitioner No.1 and 10% each share is apportioned in favour of petitioner No.2 to 5.
After deposit, 50%shall be deposited in the names of the petitioner No.1, 4 and 5 in any nationalized or scheduled bank for a period of 3 years and remaining balance amount with accrued interest shall be released in their favour through RTGS/NEFT by way of Epayment.
Entire amount shall be deposited in the names of the petitioner No.2 & 3 in any nationalized or scheduled bank until they attain the age of majority with accrued interest in their favour through RTGS/NEFT by way of Epayment.
Advocate fee is fixed at Rs.2,000/.
Draw award accordingly.
(Dictated to the stenographer, transcript thereof, corrected, signed & then pronounced by me in open court on this 4th day of January, 2022) (Parveen A Bankapur) XVI ADDL.JUDGE, Court of Small Causes, Bengaluru.
SCCH14 17 MVC.7685/2019ANNEXURE Witnesses examined for the petitioners:
PW1 : Vinoda.R.S Documents marked for the petitioners: Ex.P1 True copy of FIR along with complaint Ex.P2 True copy of spot panchanama Ex.P3 True copy of seizer mahazar Ex.P4 True copy of IMV report Ex.P5 True copy of inquest panchanama Ex.P6 True copy of PM report Ex.P7 True copy of charge sheet Ex.P.8 Record of rights Ex.P.9 to 14 Notarised copy of aadhar cards Ex.P.15 to 18 Notarised copy of Election ID card
Witnesses examined for the respondents: NONE Documents marked for the respondents:
NIL XVI ADDL.JUDGE , Court of Small Causes & MACT., Bengaluru.