Bangalore District Court
In Mvc 1. Smt. Rathnamma vs Mr. Anand Kumar on 18 January, 2021
IN THE COURT OF III ADDL. JUDGE AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, BANGALORE (SCCH-18)
DATED THIS THE 18TH DAY OF JANUARY 2021
PRESENT: SHRI MAHANTESH S.DARGAD B.Sc., LL.B.,
III ADDL. JUDGE
& MEMBER, MACT.
COURT OF SMALL CAUSES,
BENGALURU.
M.V.C.NO.2253/2017 & 2254/2017
Petitioner in MVC 1. Smt. Rathnamma,
2253/2017 W/o Late Chikka Appanna,
Aged about 35 years,
2. Mr.Ashoka.S.A.
S/o. Late Chikka Appanna,
Aged about 25 years,
3. Mr.Maresha,
S/o. Late Chikka Appanna,
Aged about 23 years,
4. Kumari.Nagalakshmi,
Daughter of Late Chikka Appanna,
Aged about 11 years,
(Since the Petitioner No.4
is minor she is duly
2 SCCH-18 MVC 2253/2017 & 2254/2017
represented by her mother
i.e., natural Guardian, the Petitioner No.1)
All are Residing at
Shattahalli village,
Abbaludu Post,
Sidlaghatta Taluk,
Chikkaballapura District.
(By Pleader Shri K.N. Harish Babu)
Petitioners in MVC 1. Mr. Harish Kumar S.D.,
2254/2017 Son of Dyavappa,
Aged about 21 years,
Residing at Shattahalli Village,
Abbaludu Post,
Sidlaghatta Taluk,
Chikkaballapura Dist 562 105.
(By Pleader Shri K.N. Harish Babu)
V/s
Respondents 1. Mr. Anand Kumar,
Son of Late Dasappa,
Aged about 36 years,
No.176, Ullurupete East,
Sidlagahatta Town,
Chikkaballapura District.
(R.C.Owner of Car bearing registration
No.KA-02MD-8010)
(Ex-parte)
3 SCCH-18 MVC 2253/2017 & 2254/2017
2.The Branch Manager,
IFFCO-TOKIO General Insurance Co. Ltd.,
No.2262, 7th B Main, 3rd Stage,
Near Yelahanka New Town, Bus-stand,
Bengaluru-560 106.
(Policy No.1-4G5BKMY-P40097015787
valid from 14.3.2016 to 13.3.2017)
(By Pleader Shri S.R.Murthy)
COMMON JUDGMENT
The petitioners have filed these respective claim petitions
in MVC 2253/2017 & 2254/2017 as against the respondents U/S.
166 of Motor Vehicles Act for seeking compensation of
Rs.25,00,000/- for the death of Chikka Appanna and
Rs.15,00,000/- for the injuries sustained by the petitioner in MVC
2254/2017 in a road traffic accident.
2. All these petitions are arising out of the same accident,
hence, these petitions are clubbed and taken together for
common discussion.
4 SCCH-18 MVC 2253/2017 & 2254/2017
3. The brief contents of both the petitions are as
under:
The allegation of the petitioners is that, on 29.8.2016 at
about 9.30 a.m. the petitioner in MVC 2254/2017 was riding the
motorcycle bearing registration No.KA-40-W-8304 along with
pillion rider by name Chikka Appanna from their village to
Sidlaghatta hospital, when they came near Mallahalli gate,
Sidlaghatta Taluk, Chikkaballapura District, at that time the
driver of the car bearing No.KA-02-MD-8010 came with high
speed in a rash and negligent manner, so as to endanger human life
and safety of others dashed against the motor cycle. Due to the
impact, the petitioner in MVC 2254/2017 sustained grievous
injuries. Immediately he was shifted to Government hospital,
Sidlaghatta, wherein he took the treatment as an inpatient.
Further Chikka Appanna has sustained grievous injuries and
immediately he was shifted to General Hospital, Sidlaghatta,
5 SCCH-18 MVC 2253/2017 & 2254/2017
wherein he took the first aid treatment and then shifted to
Victoria hospital and admitted as an inpatient and inspite of
treatment, he succumbed to the injuries and died on 1.9.2016 at
about 9.00 a.m.
4. The contention of the petitioners in MVC No.2253/2017
is that, Chikka Appanna was hale and healthy at the time of
accident, aged about 50 years, doing coolie and earning a sum of
Rs.15,000/- per month. Due to the demise of the Chikka Appanna
the petitioners have put into deep mental shock and agony. The
deceased was contributing the entire income to the family
members.
5. The contention of the petitioner in MVC No.2254/2017 is
that, deceased was hale and healthy at the time of accident, aged
about 21 years, doing coolie and earning a sum of Rs.15,000/- per
month. Due to the said accidental injuries, he could not do the
work as earlier.
6 SCCH-18 MVC 2253/2017 & 2254/2017
6. The contention of the petitioners is that, the accident
occurred due to the rash and negligent driving of the driver of
the car bearing KA-02-MD-8010. So, the respondents are jointly
and severally liable to pay compensation to the petitioners.
Contending the above facts, the petitioners have filed these
respective claim petitions and prays to grant for compensation
with interest and cost.
7. In response to the petition notice, the respondent No.1
has not appeared before the court, placed exparte. The
respondent No.2 has appeared before the court and filed its
written statement.
8. The brief contents of written statement of
respondent No.2 in both the cases are as under:
The contention of the respondent No.2 is that, petition is
not maintainable either in law or on facts. Further contended
that the policy in respect of car bearing No.KA-02-MD-8010 has
not issued in favour of the respondent No.2 and it has issued in
7 SCCH-18 MVC 2253/2017 & 2254/2017
the name of Jayaramappa and the said Jayaramappa has not made
as party in this case. Further contended that neither the owner
of the vehicle nor the jurisdictional police have complied
mandatory provision u/s 134(c) and S. 158(6) of the M.V. Act in
furnishing the better particulars. Further contended that the
accident has not occurred due to the rash and negligent driving of
the driver of the car bearing No.KA-02-MD-8010, on the other
hand, the accident occurred due to the negligence of the rider of
the motor cycle bearing No.KA-40-W-8304, as he was riding his
vehicle in a zigzag manner on the centre of the road and dashed
against the car. The petitioner was solely responsible for the
accident. Further contended that the driver of the offending
vehicle had no valid and effective driving license to drive the said
vehicle. Further denied the age, avocation and income of the
petitioner in MVC 2254/2017 and age, avocation and income of
the deceased Chikka Appanna and relationship of the deceased
8 SCCH-18 MVC 2253/2017 & 2254/2017
with the petitioners in MVC 2253/2017. Contending the above
facts, he prays to dismiss the petition with costs.
9. On the basis of the above pleadings, the following issues
were framed in both the cases:-
ISSUES in MVC 2253/2017
1. Whether the petitioner proves that Sri.Chikka
Appanna died due to injuries sustained by him in a
motor vehicle accident that was taken place on
29.8.2016 at about 9.30 p.m. near Mallahalli gate,
Sidlaghatta Taluk, Chickaballapura District,
involving Car bearing No.KA-02-MD-8010 belonging
to respondent No.1 and the said vehicle insured
with second respondent?
2. Whether the petitioners prove that the accident
was mainly occurred due to the rash and negligent
driving of the driver of the said vehicle?
3. Whether the petitioners prove that they are the
only legal heirs and dependants of the deceased?
4. Whether the petitioner is entitled for
compensation as prayed for? If so, at what rate?
From whom?
5. What order or award?
9 SCCH-18 MVC 2253/2017 & 2254/2017
ISSUES in MVC 2254/2017
1. Whether the petitioner proves that he sustained
grievous injuries in an accident that was occurred
due to rash and negligent driving of the driver of
the Car bearing No.KA-02-MD-8010 on 22.8.2016
at about 9.30 p.m. near Mallahalli Gate, Sidlaghatta
Taluk, Chickballapura?
2. Whether the petitioner is entitled for
compensation as prayed for? If so, at what rate?
From whom?
3. What order or award?
10. In order to prove their case, petitioner in MVC
2254/2017 is examined as PW1 and got marked the documents at
Ex.P1 to Ex.P5 and petitioner No.1 in MVC 2253/2017 is examined
as PW2 and got marked the documents at Ex.P6 to Ex.P14.
11. To disprove the version of the petitioners and to prove
the defence, the respondent No.2 has examined its Senior
Executive Legal as RW1 and got marked the document at Ex.R1
10 SCCH-18 MVC 2253/2017 & 2254/2017
and RMO, General Hospital, Sidlaghatta is examined as RW2 and
got marked the documents at Ex.R2 & Ex.R3.
12. Heard the arguments.
13. My answers to the issues in MVC 2253/2017 are as
follows:
Issue No.1: In affirmative
Issue No.2: In affirmative
Issue No.3: In affirmative
Issue No.4: Partly affirmative
Issue No.5: As per final order for the
following:
14. My answers to the issues in MVC 2254/2017 are as
follows:
Issue No.1: In affirmative
Issue No.2: Partly affirmative
Issue No.3: As per final order for the
following:
R E A S O N S
15. ISSUE No.1 and 2 in MVC 2253/2017 & Issue No.1
in MVC 2254/2017:- During the course of arguments, the learned
11 SCCH-18 MVC 2253/2017 & 2254/2017
counsel for the petitioners argued by reiterating the contents of
the petition and also evidence put forth by PW1 & PW2. Further
he argued that as per police investigation papers the alleged
accident occurred due to the rash and negligent driving of the
driver of the car bearing NO.KA-40-W-8304. Further contended
that the petitioners have proved their case as contended in the
petition by producing oral and documentary evidence.
16. Per contra the learned counsel for the respondent No.2
has argued that policy has not issued in the name of respondent
No.1 and the policy issued in the name of one Jayaramappa and
further more contended that the vehicle is not involved in the
accident. Further contended that the complaint has been lodged
belatedly for a day. Further contended that the complainant in
his complaint noted the accident was took place due to white
colour Martui omni and further contended that as admitted by
the PW1, they were proceeding on a motor cycle by three persons
12 SCCH-18 MVC 2253/2017 & 2254/2017
and he had no driving license. In support of his evidence he has
examined RW1 Girish Senior Executive legal and RW2 as RMO of
General Hospital, Sidlaghatta as RW1. Further he argued that the
petitioner has failed to prove his case as contended in the
petition. Accordingly, prays to dismiss the petition against the
respondent No.2. He has furnished the following judgements;
1)AIR 1999 PUNJAB AND HARYANA 219 in case
of Ram Chander Vs. Naresh Kumar and others
2)2006 ACJ 2771 in case of New India Assurance
Co.Ltd., Vs. G.N. Gopalagowda & another
3)2007(1) AIR KAR R. 115 in case of Branch
Manager, United India Insurance Co. Ltd., Vs.
Lalshavali & Another
4)2008 ACJ 113 in case of National Insurance
Co.Ltd Vs. N.Gangadevamma and others
13 SCCH-18 MVC 2253/2017 & 2254/2017
5)2012 ACJ 1604 in case of Oriental Insurance
Co.Ltd., Vs.Khiramani and others
6)MFA 30284/2008 in case of Ramalingappa Vs.
Shivarao and Others
7) 2009 (1) T.A.C. 488 (Ker.) in case of Pournami
Vs. Sandhya Sudheer
8)2007 ACJ 1928 in case of Oriental insurance Co.
Ltd., Vs. Premalata Shukla and others
17. On rival contention urged by both the parties, I intend
to discuss the case on merits.
18. To prove the case, the petitioner in MVC 2254/2017 is
examined as PW1 and petitioner No.1 in MVC 2253/2017, who is
said to be the wife of the deceased Chikka Appanna is examined
as PW2 and got marked the documents at Ex.P1 to Ex.P14.
Thereafter the learned counsel for respondent No.2 has cross-
14 SCCH-18 MVC 2253/2017 & 2254/2017
examined PW1 and PW2 at length, but nothing has been elicited to
disprove the case of the petitioner.
19. The main contention of the learned counsel for
respondent No.2 is that the complaint was lodged belatedly, it
means vehicle was implicated. Further on perusal of FIR it
reveals that there was delay of one day in lodging the complaint.
At this juncture this Court drawn its attention on the decision of
the Hon'ble Supreme Court reported in (2011) 4 SC 693
in between Ravi vs. Badrinarayan and others reads like
thus;
A. Motor Vehicles Act, 1988 - Ss. 166,
168 and 173 - Delay in lodging FIR -
Dismissal of claim petition based thereon -
Legality of - Held, delay in lodging FIR
Cannot be a ground to doubt claimant's case
in genuine case - In Indian conditions, it is
not expected that a person would to rush to
police station after accident - Treatment of
victim is given priority over lodging FIR -
15 SCCH-18 MVC 2253/2017 & 2254/2017
Kith and kin of victim are not expected to
act mechanically with promptitude in
lodging FIR - Hence, delay in lodging FIR
not a ground to dismiss claim petition -
Criminal Procedure Code, 1973, S.154.
20. On careful perusal of the above said decision, it is
clear that in Indian conditions, it is not expected that a person
would to rush to police station after accident, treatment of
victim is given priority over lodging FIR. But on perusal of
contents of complaint it reveals that accident occurred on
29.8.2016 at about 9.30 p.m. and the complaint has been lodged
30.8.2016 at about 6.00 p.m. So, delay cannot be a ground to
doubt claimant's case in genuine case. So, delay in lodging FIR not
a ground to dismiss claim petition.
21. Further the respondent No.2 has contended that the
car bearing No.KA-02-MD-8010 was not at all involved in the
accident and falsely implicated the car in the alleged accident for
the purpose of getting compensation. The rider of the motor
16 SCCH-18 MVC 2253/2017 & 2254/2017
cycle Harish Kumar has filed complaint that the driver of the
white colour Maruthi Omni car came in a rash and negligent
manner and dashed against the petitioner, it clearly shows that
the car bearing NO.KA-02-MD-8010 was not all involved in the
accident. In this regard he has examined Senior Executive legal
of the respondent No.2 company. He has reiterated the similar
facts as stated in the written statement. Further respondent
No.2 has examined RMO of General Hospital, Sidlaghatta as RW2.
He has produced the documents marked at Ex.R2 and Ex.R3 i.e,
MLC extract and police intimation.
22. On careful scrutiny of the complaint, which is marked
at Ex.P2, complaint has been lodged on 30.8.2016 at about 6.00
a.m. On perusal of spot mahazar marked at Ex.P3 reveals that on
the same day the police have drawn mahazar at the spot of the
accident between 10.30 a.m. to 11.45 a.m. and mentioned vehicle
number viz., No.KA-02-MD-8010 and also stated that "for
17 SCCH-18 MVC 2253/2017 & 2254/2017
further investigation the said car and the two wheeler was
seized." On going through the same, the police document itself
speaks that the vehicle No.KA-02-MD-8010 was involved in the
accident.
23. At this juncture this court has drawn the attention
on the Judgment of Hon'ble High Court of Karnataka in the
case of MFA No.7493-2007 dated 25-09-2007 in page 7 & 8
reads thus;-
Then, coming to the question of involvement
of the vehicle, admittedly charge- sheet is filed
against the driver of the vehicle, the owner has
not denied the accident. FIR is registered in
Crime No.10/05 by the Malur police. If really the
vehicle was not involved, if a false case has been
lodged and if the owner has colluded with the
claimants, it was for the insurance company to
challenge the same to quash the charge-sheet and
to direct the police to investigate properly and file
an appropriate case for having lodged a false case
18 SCCH-18 MVC 2253/2017 & 2254/2017
when there was no accident and vehicle in question
had not been involved. The learned counsel for the
appellant submits that after case was filed, the
matter was entrusted to a private agency for
investigation and according to the report of the
investigation of a private agency, the vehicle in
question had not been involved in the accident.
But, we cannot place reliance on a report submitted
by a private agency when a charge-sheet is filed
by the police after a detailed investigation and
when the driver and owner of the vehicle have not
disputed about the involvement of the vehicle in
question.
24. On going through the said citation, it is clear that
insurance company has to challenge the same to quash the
charge-sheet, when charge sheet was filed against the insured
vehicle.
25. In the present case, charge sheet was filed against
the insured vehicle. The respondent No.2 has not challenged the
charge sheet before the competent authority.
19 SCCH-18 MVC 2253/2017 & 2254/2017
26. Further in the present case owner has placed exparte,
if the owner of the vehicle does not step into the witness box
and specifically stated on oath that his vehicle was not involved in
the accident, it would be very difficult for the Tribunal for a
view that no accident had occurred. The said deposition of law
held in MFA 782/2017 disposed on 6th February 2020 of Hon'ble
High Court of Karnataka.
27. In order to prove the rash and negligent driving of the
driver of the car bearing No. KA-02-MD-8010, the petitioner has
produced the prosecution papers and same are marked as Ex.P1 to
Ex.P7 i.e., FIR, complaint, spot mahazar, sketch, wound
certificate, charge sheet, inquest mahazar, and P.M. report. On
perusal of Ex.P1, Ex.P2 and Ex.P5 i.e., FIR, complaint and charge
sheet reveals that the case has been registered by the
Sidlaghatta Police in Cr.No.233/2016 and after completion of
investigation I.O. has filed the charge sheet against the driver of
20 SCCH-18 MVC 2253/2017 & 2254/2017
the car bearing registration No.KA-02-MD-8010 for the offences
punishable u/s 279, 337, 338 and 304(A) of IPC. Looking to the
oral evidence of PW1 & PW2 and the documents placed before the
court, it reveals that the petitioners have proved their case that
the accident occurred due to the rash and negligent driving of the
driver of the car bearing No.KA-02-MD-8010.
28. In addenda of this, in a claim for compensation
U/S.166 of MV Act, 1988, the claimant has to prove the incident
only on preponderance of probabilities and the standard of proof
beyond reasonable doubt is not required as held by Hon'ble Apex
Court in the decision reported in 2011 SAR (Civil) 319 (Kusum and
others Vs. Satbir and others).
29. Considering the above facts and circumstances of the
case and on perusal of evidence of PW1 coupled with documents
and for the above reason, I am of the opinion that, the
petitioners in the both the cases have proved the issue No.1 in
21 SCCH-18 MVC 2253/2017 & 2254/2017
MVC 2254/2017 and issue No.1 & 2 in MVC 2253/2017 by
producing proper documents. Accordingly, I answer the issue No.1
in MVC 2254/2017 and issue No.1 & 2 in MVC 2253/2017 as
affirmative.
30. Issue No. 2 in MVC 2253/2017:
The specific contention of the petitioners is that,
petitioner No.1 is the wife and petitioner No.2 & 3 are the major
sons of deceased Chikka Appanna and the petitioner No.4 is the
minor daughter of the deceased Chikka Appanna and they are the
legal representatives and dependants of the deceased Chikka
Appanna.
31. On the other hand, the respondent No.2 has denied the
above contention of the petitioners in toto.
32. To prove the relationship, the petitioners in order to
prove the relationship of the petitioners with the deceased, the
petitioner No.1 has produced Aadhar card of deceased and
petitioner Nos. 1 to 4, which are marked at Ex.P9 to Ex.P13. On
22 SCCH-18 MVC 2253/2017 & 2254/2017
perusal of the same, it reveals that the petitioner No.1 is the wife
of the deceased and the petitioner No.2 & 3 are sons of the elder
wife of the deceased and petitioner No.4 is the minor daughter of
the deceased.
33. Further the contention of learned counsel for
respondent No.2 is petitioner no.2 & 3 are major sons of deceased
are not entitled for compensation. But the contention of the
learned counsel for the respondent No.2 holds no water in view of
the judgment of the Hon'ble Apex Court reported in Civil
Appeal No.242-243-2020 reported in 2020 ACJ 759 in case
of National Ins. Co. Ltd., V/s. Birender and Ors; wherein it
its para 15 observed that:
" The legal representatives of the deceased have
a right to apply for compensation. Having said that
it must necessarily follow that even the major,
married and earning sons of the deceased being legal
representatives have a right to apply for compensation
and it would be the bounden duty of the Tribunal to
23 SCCH-18 MVC 2253/2017 & 2254/2017
consider the application irrespective of the fact
whether the concerned legal representative was fully
dependant on the deceased and not to limit the claim
towards conventional heads only"
34. On perusal of the said decision it is clear that the legal
representatives of the deceased have a right to apply for
compensation and not limit the claim towards conventional heads.
35. In the instant case the petitioner Nos. 2 & 3 are the
major sons of the deceased Chikka Appanna they are also
dependants of the deceased.
36. On perusal of the said decision it is clear that the
legal representatives of the deceased have right to apply for
compensation and not limited towards conventional heads.
Thus the petitioners are the financial dependants of the
deceased.
37. Considering the above facts and on perusal of
evidence of PW2 and documents and for the above reasons, I
24 SCCH-18 MVC 2253/2017 & 2254/2017
am of the opinion that, the petitioners are the legal
representative and financial dependants of deceased.
Accordingly, I answer this issue No.3 in the affirmative.
38. Issue No.4:- The specific contention of the petitioners
is that, deceased Chikka Appanna was hale and healthy at the time
of accident, aged about 50 years, doing coolie and earning a sum
of Rs.15,000/- per month. Due to the sudden demise of Chikka
Appanna, petitioners have put to untold misery, pain and
sufferings, frustration and financial loss.
39. To prove the age of the deceased, the petitioners have
produced Aadhar card, which is marked at Ex.P9. On perusal of
the same, the year of birth of the deceased shown as 1960. The
accident occurred on 29.8.2016. So as on the date of accident,
the deceased was aged about 56 years. So, the same is considered
25 SCCH-18 MVC 2253/2017 & 2254/2017
as age of the deceased, then the proper Multiplier applicable to
the case on hand is "9".
40. The counsel for the petitioners has argued that the
deceased was doing coolie and earning a sum of Rs.15,000/- per
month. The petitioners have not furnished any documents with
respect to his avocation and income. In the absence of the
positive documents with respect to his avocation and income, by
considering his age and the year of accident if notional income of
Rs.7,000/- is considered it will meet the ends of justice. Then
the annual income of the petitioner comes to Rs.84,000/-.
41. At this juncture this court has drawn the attention
on the decision of the Hon'ble Supreme Court reported in
2017 ACJ 2700 in between National Insurance Co.Ltd., Vs.
Pranay Sethi and others. In the said decision, it is held that;
Quantum---Fatal accident---Principles
of assessment---future prospects----
Whether legal representatives of the
26 SCCH-18 MVC 2253/2017 & 2254/2017
deceased who was on fixed salary or self-
employed or aged between 50 and 60 would be
entitled to benefit of future prospects for
the purpose of computation of compensation--
-Held: yes; case-law discussed.
While determining the income, an
addition of 50 per cent of actual salary to
the income of the deceased towards future
prospects, where the deceased had a
permanent job and was below the age of 40
years, should be made. The addition should be
30 per cent, if the age of the deceased was
between 40 and 50 years. In case the
deceased was between the age of 50 and 60
years, the addition should be 15 per cent.
Actual salary should be read as actual salary
less tax.
In case the deceased was self-employed
or on a fixed salary, an addition of 40 per
cent of the established income should be the
warrant where the deceased was below the
age of 40 year. An addition of 25 per cent
27 SCCH-18 MVC 2253/2017 & 2254/2017
where the deceased was between the age of
40 to 50 years. An addition of 25 per cent
where the deceased was between the age of
40 and 50 years and 10 per cent where the
deceased was between the age of 50-60
years should be regarded as the necessary
method of computation. The established
income means the income minus the tax
component.
42. In the instant case, the deceased is not permanent
employee and his age considered as 56 years, he comes under the
age group of 50-60 years, 10% of the income is to be added to
the income of deceased as future prospects, on such addition, the
total income of the deceased comes to Rs.92,400/- per annum.
43. As I have already discussed that the petitioners Nos.1
to 4 are dependants of the deceased. So, as per the decision of
the Hon'ble Supreme Court reported in 2012 ACJ 1298 in
between Sarlaverma Vs. Delhi Transport Corporation Ltd., if 4-
6 dependants, 1/4th shall be deducted towards the personal and
28 SCCH-18 MVC 2253/2017 & 2254/2017
living expenses. In the case on hand, petitioners 1 to 4 are
financial dependants of the deceased, so, 1/4th of the income of
the deceased shall be deducted towards his personal expenses, on
such deduction, the income of the deceased comes to Rs.69,300/-
p.a.
44.The income of the deceased is taken as Rs.69,300/- p.a.
and the multiplier 9 is applied, then the loss of dependency comes
to Rs.6,23,700/-. Considering the above facts, I deem it just and
reasonable to grant for compensation of Rs.6,23,700/- under
the head of loss of dependency.
45. At this juncture I relied the judgment of the
Hon'ble Supreme Court in Civil Appeal No.9581/2018 (Arising
out of SLP (Civil) No.3192/2018) in case of Muama General
Insurance Co.Ltd., Vs. Nanu Ram alias Chuhru Ram and
Others.
29 SCCH-18 MVC 2253/2017 & 2254/2017
In which it is held in para No.8.7 that
" A Constitution Bench of this Court in
Pranay Sethi (supra) dealt with the various heads
under which the compensation it so be awarded
in a death case. One of these heads is "Loss of
Consortium":
In legal parlance "consortium" is a
compendious term which encompasses 'spousal
consortium; parental consortium and filial
consortium.
The right to consortium would include the
company, care, help, comfort, guidance, solace
and affection of the deceased, which is a loss to
his family. With respect to a spouse, it would
include sexual relations with the deceased
spouse.
Spousal consortium is generally defined as
rights pertaining to the relationship of a husband
-wife which allows compensation to the surviving
spouse for loss of "company, society, co-
30 SCCH-18 MVC 2253/2017 & 2254/2017
operation, affection and aid of the other in
every conjugal relation."
Parental consortium is granted to the child
upon the premature death of a parent, for loss
of "parental aid, protection, affection, society,
discipline, guidance and training."
Filial consortium is the right of the parents
to compensation in the case of an accidental
death of a child. An accident leading to the
death of a child causes great shock and agony to
the parents and family of the deceased. The
greatest agony for a parent is to lose their child
during their lifetime. Children are valued for
their love, affection, companionship and their
oral in the family unit.
Consortium is a special prism reflection
changing norms about the status and worth of
actual relationship. Modern jurisdictions world-
over have recognized that the value of child's
consortium far exceeds the economic value of
the compensation awarded in case of death of a
child. Most jurisdictions therefore permit
31 SCCH-18 MVC 2253/2017 & 2254/2017
parents to be awarded compensation under loss
of consortium on the death of a child. The
amount awarded to the parents is a compensating
for loss of love, affection, care and
companionship of the deceased child.
46. In the instant case, petitioner No.1 is the wife of the
deceased is entitled for Spousal consortium, which can be
compensated for loss of "company, society, co-operation,
affection and aid of the other in every conjugal relation and
petitioner No.2 to 4 are the children of the deceased is entitled
for Parental consortium. Therefore, Rs.40,000/- each is
awarded to the petitioner Nos.1 to 4.
47. Further the petitioners are wife and children of
deceased, they are entitled for compensation of Rs.15,000/-
under the head of loss of estate and also an amount of
Rs.15,000/- is awarded under the head of transportation of
dead body, funeral and obsequies ceremony expenses.
32 SCCH-18 MVC 2253/2017 & 2254/2017
48. Considering the above facts and circumstances of the
case and for the above reason, I am of the opinion that, the
petitioners are entitled for total compensation under the
following heads.
Compensation heads Compensation amount
Towards loss of dependency Rs.6,23,700-00
Towards loss of consortium Rs.1,60,000-00
Towards loss of estate Rs. 15,000-00
Towards transportation of dead body, Rs. 15,000-00
funeral & obsequies ceremony
expenses
Total Rs.8,13,700-00
49. ISSUE NO.3 IN MVC.No.2254/2017:-
The case of the petitioner is that he met with an accident
on 29.8.2016 at about 9.30 p.m. and sustained grievous injuries.
Immediately he was shifted to Government hospital, Sidlaghatta
wherein he was admitted as an inpatient. To substantiate the said
fact, petitioner has produced wound certificate at Ex.P4, which
discloses the following injuries:
33 SCCH-18 MVC 2253/2017 & 2254/2017
1)Fracture proximal phalanx of the right ring and little
finger
2) Abrasion of 4 cms X 2cms right arm dorsal aspect
3) Lacerated wound of 3 cms X 2cms of right knee joint
Anterior aspect
50. The doctor is of the opinion that the injury No.1 is
grievous in nature and the injury No.2 & 3 are simple in nature.
The petitioner underwent open reduction, steel in plants got
inserted. Further petitioner has stated that due to the
accidental injuries he cannot hold article, eat properly lift article,
lift weight, pull or push, cannot drive the vehicle, he has become
very weak. But the petitioner has not examined the doctor to
speak about the grievousness of the injuries or to assess
disability.
51. Further he has stated that he has spent Rs.2,00,000/-
for medical, conveyance and nourishment. But he has not
34 SCCH-18 MVC 2253/2017 & 2254/2017
produced medical bills and prescriptions. So, considering the
nature of the injuries, if global compensation of Rs.10,000/- is
awarded it will meet the ends of justice. Therefore, global
compensation of Rs.10,000/- is awarded under all the heads.
52. LIABILITY: As I have already discussed in issue No.1 in
both the cases that the accident occurred due to the rash and
negligent driving of the driver of the car bearing No.KA-02-MD-
8010 .
53. The respondent No.2 has contended in its written
statement that the policy issued in the name of Jayaramappa and
not infavour of the respondent No.1. On perusal of Ex.R1 the
vehicle number mentioned as KA-02-MD-8010. The policy issued
for vehicle and the person of the policy does not matter. So, the
contention taken by the respondent No.2 cannot be accepted.
54. As per Ex.R1 the policy is valid. Therefore, the
respondents are jointly and severally liable to pay the
35 SCCH-18 MVC 2253/2017 & 2254/2017
compensation to the petitioner. In view of the valid insurance
policy the respondent No.2 is liable to pay the compensation
together with interest at 8% p.a. from the date of petition till its
realisation. Hence, I answer the issue No.2 in both the cases is
partly affirmative.
55. ISSUE NO.3 in both the cases: In view of my findings
on the above issues, I proceed to pass the following;
O R D E R
The claim petitions i.e. MVC.Nos.2253/2017 and 2254/2017 filed by the respective petitioners U/S.166 of M.V. Act are hereby partly allowed with cost.
The petitioners are entitled for compensation amount as noted below with interest at the rate of 8% p.a. from the date of petitions till the date of deposit. MVC.No.2253/2017 Rs.8,13,700-00 MVC.No.2254/2017 Rs.10,000-00 36 SCCH-18 MVC 2253/2017 & 2254/2017 The respondents are jointly and severally liable to pay the compensation. In view of the valid insurance policy, the respondent No.2 Insurance Company shall pay the compensation to the petitioners together with interest at 8% p.a. from the date of petition till its realisation within two months from the date of this order.
With regard to the compensation amount together with interest in MVC 2254/2017, entire amount shall be released to the petitioner through e- payment.
Out of the compensation amount awarded to the petitioner in MVC 2253/2017 together with interest, 50% is awarded to the petitioner No.1 and 10% each is awarded to the petitioner No.2 & 3 and 30% is awarded to petitioner No.4.
37 SCCH-18 MVC 2253/2017 & 2254/2017 With regard to the compensation amount together with interest of petitioner No.1, 40% of the amount shall be deposited in any Nationalised bank or Scheduled bank for a period of 3 years and remaining 60% of the amount shall be released to the petitioners through e-payment.
With regard to the compensation amount together with interest of petitioner No.2 & 3 entire amount shall be released to them through e-payment.
With regard to the compensation amount together with interest of petitioner No.4 entire amount shall be deposited in any Nationalized Bank or Scheduled Bank till she attains age of majority. After attaining the age of majority, entire amount shall be released to the petitioner through e-payment. The guardian of the petitioner is at liberty to 38 SCCH-18 MVC 2253/2017 & 2254/2017 withdraw the periodical interest accrued on her deposit amount from time to time.
The original judgment shall be kept in MVC.No.2254/2017 and copy of the same shall be kept in MVC 2253/2017.
Advocate fee is fixed at Rs.1,000/- in MVC 2253/2017 and Rs.500 in MVC 2254/2017.
Draw award accordingly.
(Dictated to stenographer, online, corrected by me and then pronounced in open court on this 18th day of January 2021).
(MAHANTHESH S. DHARGAD) III ADDL. JUDGE & MACT, BENGALURU.
ANNEXURE List of witnesses examined for petitioners' side:
PW1 Shri Harish Kumar PW2 Smt.Rathnamma
List of documents exhibited for petitioners' side:
Ex-P1 True copy of FIR 39 SCCH-18 MVC 2253/2017 & 2254/2017 Ex-P2 True copy of Complaint Ex-P3 True copy of Mahazar Ex-P4 Wound certificate Ex-P5 Charge sheet Ex-P6 Inquest mahazar Ex-P7 PM report Ex-P8 Death certificate of Chikkappanna Ex-P9 Notarised copy of Aadhar card of Chikkappanna Ex-P10 Notarised copy of Aadhar card of Petitioner No.1 Ex.P11 Notarised copy of Aadhar card of Petitioner No.2 Ex.P12 Notarised copy of Aadhar card of Petitioner No.3 Ex.P13 Notarised copy of Aadhar card of Petitioner No.4 Ex.P14 Geneological tree
List of witnesses examined for respondents' side:-
RW.1 Gireesha RW.2 Dr.V.Vani
List of documents exhibited for respondents' side:
Ex.R.1 Insurance policy
Ex.R2 True copy of MLC extract
Ex.R3 True copy of police intimation
III ADDL. SMALL CAUSES JUDGE
& ACMM, Bengaluru.