Bangalore District Court
B. Madhu vs Ravi on 4 November, 2024
KABC020123642019
BEFORE THE COURT OF 10th ADDITIONAL SMALL CAUSES
AND MOTOR ACCIDENT CLAIMS TRIBUNAL, AT:
BENGALURU
(SCCH-16)
Present: Sri. Mohammed Yunus Athani
B.A.,LL.B.,
X Additional Court of Small Causes
& Member, MACT, Bengaluru.
MVC No.2871/2019
Dated this 4th day of November, 2024
Petitioners: 1. Smt. B. Madhu W/o Late Jaikar,
Aged about 32 years,
2. Kumari Ranitha Jasiel J.,
D/o Late Jaikar,
Aged about 2 ½ years,
Since petitioner No.2 is minor
Rep. by her mother and natural
guardian Smt. B. Madhu.
Both are residing at No.15,
1st Cross, 2nd Main, behind SBI,
HAL Old township, Vimanapura,
Bengaluru - 560017.
3. Smt. Arogya Mani W/o Late
Ravishekar @ Ravishegar,
2 MVC No.2871/2019
Aged about 51 years,
Residing at Ward No.23,
2nd Division, Near Anganavadi,
Bommanakatte, Hiriyur,
Shivamoga District.
(Sri B. H. Chikkanna, Advocate)
V/s
Respondents: 1. Ravi S/o Srinivas,
Age: Major,
Residing at No.9, 10th Main Road,
8th Cross, Shivanagar,
Bengaluru - 560 010.
(RC owner of the Canter 909
bearing No.KA-12-A-4411)
(Ex-parte)
2. The Manager,
Bajaj Allianz General Insurance Co.
Ltd., Golden Heights 4th Floor,
No.1/2, 59th C Cross, 4th M Block,
Rajajinagar, Bengaluru - 560 010.
(Insurer of Canter 909 bearing
No.KA-12-A-4411 vide Insurance
Policy No.OG-18-1701-1831-
00004461,
valid from 23-03-2018 to
22-03-2019)
(Sri Gururaj Salur, Advocate)
3. Shwetha W/o Jaikar,
Staff Nurse, No.G.5, Third Cross,
HAL Post, Bengaluru - 560 017.
3 MVC No.2871/2019
(Ex-parte)
4. Jaison Pal C/o Shwetha,
No.G.5, Third Cross, HAL Post,
Bengaluru - 560 017.
(Ex-parte)
JUDGMENT
This is petition filed under Section 166 of Motor Vehicles Act, 1988, seeking compensation of Rs.50,00,000/- from the respondents on account of death of Jaikar, who is husband of petitioner No.1, father of petitioner No.2 and son of petitioner No.3, in a road traffic accident.
2. The brief facts of the case are as follows:
On 16-06-2018 at about 2.30 p.m., the deceased Jaikar was driving his car bearing No.KA-03-AA-1336 on NH-206 road between Thimlapura-Biligere village, at that time the driver of the canter 909 bearing No.KA-12-A-4411 came from the opposite direction, with high speed, in a rash and negligent manner, endangering to human life, without 4 MVC No.2871/2019 observing traffic rules and regulations and dashed to the car of deceased. Due to the impact, the deceased sustained severe injuries and succumbed to the injuries. Earlier to the accident, the deceased was working as Technician at HAL, Bengaluru and was earning a sum of Rs.42,000/- per month. He was contributing his entire earnings to his family. Due to untimely death of a sole bread earner, the petitioners are struggling for their livelihood. On the basis of complaint lodged by the driver of canter 909 bearing No.KA-12-A-4411, the Kibbanahalli Police have registered the case against the deceased Jaikar, for the offences punishable under Section 279, 337 and 304(A) of I.P.C. Further contended that, at the time of accident the deceased was alone in the car and nobody was there for lodging the complaint against the canter driver. The accident has occurred due to rash and negligent driving of the driver of offending canter 909 bearing No.KA-12-A-4411. The respondent No.1 is the owner and respondent No.2 is the insurer of the offending vehicle. 5 MVC No.2871/2019 Hence, they are jointly and severally liable to pay compensation to the petitioners. Therefore, it is prayed to allow the petition and award compensation of Rs.50,00,000/- with interest.
3. On service of notice to the respondents, the respondent No.2 appeared through its counsel and filed the written statement. Whereas, the respondents No.1, 3 and 4 did not choose to appear and remained absent. Hence, the respondents No.1, 3 and 4 are placed ex-parte. It is pertinent to note that, vide order dated 11-08-2023 on I.A.No.V, filed by the respondent No.2, under Order I Rule 10 R/W Sec.151 of C.P.C., the respondent No.3 & 4 are impleaded in the present case, who are said to be wife and son of the deceased Jaikar.
4. The respondent No.2 in its written statement has denied all the allegations made in the petition. It has admitted the issuance of insurance policy in favour of the 6 MVC No.2871/2019 respondent No.1 in respect of Goods vehicle bearing No.KA- 12-A-4411 and its validity as on the date of accident. It has contended that, the driver of the alleged insured Goods vehicle was not holding valid and effective driving licence and the vehicle was not having valid permit and fitness certificate to ply in the public place as on the date of alleged accident. Further, it has sought for permission to contest even on behalf of respondent No.1 as per Section 170 of the Motor Vehicles Act. It has denied the age, income and avocation of the deceased and nexus between the accident and death of the deceased. It has contended that, in the alleged accident there is no negligence on the part of the driver of the vehicle bearing No.KA-12-A-4411, as he was driving the same in correct side of the road, in slow manner with following all traffic rules and regulations. At that time the deceased being driver of car bearing No.KA-03-AA-1336 drove the same with high speed, rash and negligent manner, lost control over the car, came to the wrong side of the road and dashed against 7 MVC No.2871/2019 the vehicle bearing No.KA-12-A-4411. Hence, the deceased was solely negligent and he himself has endangered his life by causing this accident. For his self negligence the petitioners have lost entitlement of any compensation and the present claim petition is not maintainable. It has further contended that, Kibbanahalli police after detail investigation have filed charge-sheet against the deceased himself and the deceased himself was a tort-feasor. It has further contended that, the deceased was proceeding in car without fastening seat belt which is violation of provisions of the Motor Vehicles Act and non using seat belt amounts to "volenti non fit injuria". It has contended that, the petition is bad for non compliance of provision under Sections 134(C) and 158(6) of Motor Vehicles Act. It seeks protection under Section 147 and 149 of Motor Vehicles Act. Further it is contended that, the compensation claimed is highly excessive and exorbitant. For the above denials and contentions, it is prayed to dismiss the petition.
8 MVC No.2871/2019
5. On the basis of rival pleadings of both the sides, the following issues are framed:
ISSUES
1. Whether the petitioners prove that, deceased Jaikar, succumbed to the injuries sustained in vehicular accident alleged to have occurred on 16-06-2018, due to the rash and negligent driving of the driver of the Canter 909 bearing Reg. No. KA-12-A-4411 ?
2. Whether the petitioners are entitled to compensation? If so, what is the quantum and from whom ?
3. What order or Award ?
6. In order to prove their case, the petitioner No.1 has got examined herself as P.W.1 and got marked 18 documents as Ex.P.1 to Ex.P.18. Further, they have got 9 MVC No.2871/2019 examined three more witnesses namely Priyanka Yadav, Mallesh and Paramesh @ Parameshwaraiah as P.W.2 to P.W.4 and closed their side. On the other hand, the respondent No.2 has got examined its Senior Executive as R.W.1 and got marked 2 documents as Ex.R.1 and 2 and closed its side.
7. I have heard the arguments of both the sides and perused the entire material placed on record.
8. My findings on the above issues are as under:
Issue No.1: Negative.
Issue No.2: Negative.
Issue No.3: As per the final order, for the following:
REASONS
9. Issue No.1: It is specific case of the petitioners that, on 16-06-2018 at about 2.30 p.m., when the deceased Jaikar was driving his car bearing No.KA-03-AA-1336 on NH-206 10 MVC No.2871/2019 road, between Thimlapura-Biligere village, the driver of the canter 909 bearing No.KA-12-A-4411 came from the opposite direction, with high speed, in a rash and negligent manner, without observing traffic rules and regulations and dashed to the car of deceased. Due to the impact, the deceased sustained severe injuries and succumbed to the injuries. Further it is contended that, earlier to the accident the deceased was working as Technician at HAL, Bengaluru and was earning a sum of Rs.42,000/- per month. He was contributing his entire earnings to his family. Due to untimely death of a sole bread earner, the petitioners are struggling for their livelihood.
10. In order to prove their case, the petitioner No.1 has got examined herself as P.W.1 by filing examination-in-chief affidavit, wherein she has reiterated the entire averments made in the petition. Further, in support of their oral evidence, the petitioners have got marked total 18 documents as Ex.P.1 to 18. Out of the said documents, 11 MVC No.2871/2019 Ex.P.1 is F.I.R., Ex.P.2 is First Information Statement, Ex.P.3 is sketch, Ex.P.4 is Spot-mahazar, Ex.P.5 is Motor Vehicle Accident report, Ex.P.6 is Post-mortem report, Ex.P.7 is Inquest, Ex.P.8 is Charge-sheet, Ex.P.9 is notarised copies of Aadhar cards (total 3), Ex.P.10 is notarised copy of Ration card, Ex.P.11 is copy of requisition letter submitted by the brother of deceased to investigation officer, Ex.P.12 is notarised copy of the marriage certificate, Ex.P.13 is pay-slip, Ex.P.14 certificates issued by the employer of deceased, Ex.P.15 is authorization letter, Ex.P.16 is pay slip, Ex.P.17 is appointment letter and Ex.P18 is death claim form and nominee form.
11. At the outset, is it pertinent to note that, the date, time and place of accident, involvement of canter 909 bearing No.KA-12-A-4411 in the accident and issuance of insurance policy in favour of the respondent No.1 with respect to said vehicle and its validity as on the date of accident, are not in dispute. Further, the oral and documentary evidence placed 12 MVC No.2871/2019 on record by the petitioners has remained un-challenged by the owner of canter 909 bearing No.KA-12-A-4411 i.e. respondent No.1, as he did not choose to appear and contest the case of the petitioners.
12. It is well settled principle of law that, in a case relating to the Motor Accident Claims, the claimants are not required to prove the case as required to be done in a criminal trial. The Hon'ble Supreme Court in the case of Parameshwari V/s Amir Chand and others, reported in (2011) SCC 635, has clearly held that, "in a road accident claim cases the strict principle of proof as in a criminal case are not required."
13. The Hon'ble Supreme Court, in the case of Bimla Devi and others V/s Himachal Road Transport Corporation and others, reported in (2009) 13 SCC 513, has clearly held that, "in a case relating to the Motor Accident Claims, the claimants are merely required to establish their case on 13 MVC No.2871/2019 touch stone of preponderance of probability and the standard of proof on beyond reasonable doubt could not be applied."
14. On meticulously going through the police documents marked as Ex.P.1 to 8, prima-facia it reveals that, the alleged accident has taken place due to self rash and negligent driving of the deceased Jaikar. On 16-06-2018 at about 2.30 p.m., on NH-206 road, in between Thimlapura-Biligere village, near the land of one Basavaraju of Managondanahalli village, the deceased Jaikar drove his car bearing No.KA-03-AA-1336 in high speed and in rash and negligent manner, from left side to right side of the road and dashed to the oncoming canter 909 bearing No.KA-12-A- 4411 and sustained grievous injuries on his head and other parts of his body and succumbed to said injuries.
15. It is pertinent to note that, admittedly, on the alleged date, time and place of accident, the deceased Jaikar was 14 MVC No.2871/2019 proceeding from Bengaluru to Bhadravati, via NH-206 road and the accident has taken place in between Thimlapura and Biligere village. The Ex.P.3 sketch and Ex.P.4 spot-mahazer clearly speaks that, the said accident has occurred on extreme right side of 22 feet wide Tumkur-Thimlapura road, in between Thimlapura and Biligere village, near the land of one Basavaraju of Managondanahalli village. This clearly goes to show that, the deceased Jaikar drove his car bearing No.KA-03-AA-1336 from left side to right side of the road and dashed to the oncoming canter 909 bearing No.KA-12-A- 4411. With regard to rash and negligent driving of deceased, the investigation officer in his final report/charge-sheet, which is marked as Ex.P.8 has clearly stated that, the said accident has occurred due to rash and negligent driving of the deceased Jaikar. Admittedly, the Ex.P.8 final report/charge-sheet has not been challenged by the petitioners or any other legal heirs of the deceased Jaikar. 15 MVC No.2871/2019
16. In order prove that, the said accident has occurred due to rash and negligent driving of the driver of canter 909 bearing No.KA-12-A-4411 and the Ex.P.8 final report/charge- sheet submitted by the investigation officer is false, the petitioners have examined the alleged eye-witnesses to the accident, as P.W.3 & P.W.4. The P.W.3 & P.W.4 have deposed in their examination-in-chief affidavit that, they have not witnessed the alleged accident, they were in deep sleep in their house at the time of accident, they are not at all aware of the alleged accident and they have not recorded any statement before the Police. But, during the cross- examination the P.W.4 has clearly admitted that, he does not know the contents of his examination-in-chief affidavit and he has just put his signature on it. Further, he has pleaded his ignorance to the suggestion made to him that, the said accident has taken place due to rash and negligent driving of the driver of car. Whereas, the P.W.3 has denied the said suggestion.
16 MVC No.2871/2019
17. Even if for a moment the oral evidence of P.W.1, P.W.3 & P.W.4 is taken to be true and held that, the P.W.3 & 4 are not the eye-witnesses to the alleged accident, then also in order to claim compensation from the owner and insurer of canter 909 vehicle bearing No.KA-12-A-4411, the burden is on the petitioners to prove that, the alleged accident has occurred due to rash and negligent driving of the drive of said vehicle and the deceased has succumbed to injuries sustained in the said accident. As the petitioners have filed the present petition under Sec.166 of Motor Vehicles Act, 1988, the proof of negligence is essential to maintain the claim petition for compensation. In the instant case, except the self serving statements of the petitioner No.1/P.W.1, there is absolutely no other oral or documentary evidence placed on record to show that, the alleged accident is caused due to rash and negligent driving of the driver of canter 909 vehicle bearing No.KA-12-A-4411. Even, nothing has been elicited in the cross-examination of R.W.1, with 17 MVC No.2871/2019 respect to same. The petitioners have failed to prove through cogent and corroborative evidence that, the Ex.P.8 final report/charge-sheet filed by the investigation officer is false. Admittedly, the Ex.P.8 final report/charge-sheet has not been challenged by the petitioners or any other legal heirs of the deceased Jaikar. In such circumstances, there is no impediment to believe the final report filed by the investigation officer and hold that, the said accident is caused due to rash negligent driving of the deceased driver of car bearing No.KA-03-AA-1336.
18. It is settled principle of law that, the tort-feasor cannot be third party and he is not entitled for any compensation under Sec.166 of Motor Vehicles Act, 1988. The liability to pay compensation to the injured or to the legal heirs of the victim is envisaged only in cases where such injury or death was caused because of tortuous act committed by another. In the instant case, the death of driver of car is caused on 18 MVC No.2871/2019 account of his own act of rashness and negligence, as such the claim of the petitioners is not maintainable.
19. Therefore, for the above stated reasons, this Court is of the considered opinion that, the petitioners have failed to prove through cogent and corroborative evidence that, the deceased Jaikar has succumbed to the injuries sustained in vehicular accident occurred on 16-06-2018, due to the rash and negligent driving of the driver of the Canter 909 vehicle bearing Reg. No. KA-12-A-4411. Hence, I answer Issue No.1 in Negative.
20. Issue No.2: While answering above issue, for the reasons stated therein, this Court has come to conclusion that, the petitioners have failed to prove through cogent and corroborative evidence that, the deceased Jaikar has succumbed to the injuries sustained in vehicular accident occurred on 16-06-2018, due to the rash and negligent driving of the driver of the Canter 909 vehicle bearing Reg. 19 MVC No.2871/2019 No. KA-12-A-4411. When the petitioners have failed to prove that, the deceased Jaikar has succumbed to injuries sustained in an accident caused due to negligent act of the driver of Canter 909 vehicle bearing Reg. No. KA-12-A-4411, the question of holding the owner and insurer of said vehicle liable to pay the compensation to the legal heirs of deceased i.e. petitioners, under Sec.166 of Motor Vehicles Act, 1988, does not arise at all.
21. Further it is made clear that, no doubt it is settled principle of law that, the claimants can seek for amendment of petition for conversion of petition filed under Sec.166 of Motor Vehicles Act, 1988, to petition under Sec.163A of Motor Vehicles Act, 1988, which allows the claimant to claim compensation without proving the negligent act of the driver or owner of the vehicle involved in the accident. Once it is established that, the death or permanent disablement has occurred during the use of the vehicle and the said 20 MVC No.2871/2019 vehicle is insured, the insurance company or the owner, as the case may be, shall be liable to pay the compensation to the claimant or the legal heirs of deceased. But, in the instant case, the petitioners have not taken any such steps for conversion of petition filed under Sec.166 of Motor Vehicles Act, 1988, to petition under Sec.163A of Motor Vehicles Act, 1988. Further, the petition under Sec.163A of Motor Vehicles Act, 1988, is maintainable only if the annual income of the victim is less than Rs.40,000/-. In the instant case, the petition and the examination-in-chief affidavit of P.W.1 itself discloses that, the income of the deceased as on the date of death was Rs.42,000/- per month, which will be around Rs.5,04,000/- per annum. In such circumstances, the petitioners are not entitled to claim compensation even under Sec.163A of Motor Vehicles Act, 1988.
22. The Hon'ble Supreme Court, in the case of Deepal Girishbhai Soni and others V/s United India Insurance 21 MVC No.2871/2019 Co. Ltd., Baroda, reported in AIR 2004 SC 2107, has clearly held that, "If a person invokes provisions of Sec.163A, the annual income of Rs.40,000/- per annum shall be treated as a cap. It was held that, provisions of Sec.163A being a social security provision, providing for a distinct scheme, only those whose annual income was upto Rs.40,000/- could take the benefit of Sec.163-A and all other claims are required to be determined in terms of Chapter XII of the Motor Vehicles Act."
23. Therefore, in the light of observations made in the above cited decision and for the reasons stated supra, this Court is of the considered opinion that, the petitioners are not entitled for compensation as prayed for. Hence, I answer Issue No.2 in Negative.
24. Issue No.3: In view of the above findings, I proceed to pass the following order:
22 MVC No.2871/2019
ORDER The petition is dismissed with costs. Draw award accordingly.
(Dictated to the stenographer, directly on computer, typed by him, corrected and then pronounced in the open Court this the 4th day of November, 2024) (Mohammed Yunus Athani) Member, MACT, Bengaluru.
ANNEXURE Witnesses examined on behalf of petitioners P.W.1: Madhu B., W/o Late Jaikar P.W.2: Priyanka Yadav W/o Gaurav P.W.3: Mallesh S/o Basavaiah P.W.4: Paramesh @ Parameshwaraiah S/o Shivalingaiah Documents marked on behalf of petitioners Ex.P.1: F.I.R.
Ex.P.2: First Information Statement
Ex.P.3: Sketch
Ex.P.4: Spot Mahazar
Ex.P.5: M.V.A. Report
Ex.P.6: Post-mortem report
Ex.P.7: Inquest
23 MVC No.2871/2019
Ex.P.8: Charge-sheet
Ex.P.9: Notarized copies of 3 Aadhar Cards
Ex.P.10: Notarized copy of Ration Card
Ex.P.11: Copy of requisition letter to the I.O. Ex.P.12: Notarized copy of Marriage Certificate Ex.P.13: Pay-slip Ex.P.14: Certificates issued by employer. Ex.P.15: Authorization Letter Ex.P.16: Pay Slip for the month of May-2018 Ex.P.17: Appointment Letter Ex.P.18: Death Claim Form and Nominee Form Witnesses examined on behalf of respondents R.W.1: Ruchitha Renukesh D/o Renukesha V. Documents marked on behalf of the respondents Ex.R.1: Authorization Letter Ex.R.2: True copy of Insurance Policy (Mohammed Yunus Athani) Member, MACT, Bengaluru.