Bangalore District Court
Smt.Nagamma vs Shri Kemparaju on 12 February, 2021
IN THE COURT OF III ADDL. JUDGE AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, BENGALURU. (SCCH-18)
Dated: This the 12th day of February 2021
Present: SRI.MAHANTESH S.DARGAD
B.Sc., LL.B.,
III ADDL. JUDGE &
MEMBER, MACT
COURT OF SMALL CAUSES,
BANGALORE.
M.V.C.No.1836/2019
Petitioners 1. Smt.Nagamma,
Wife of Late Siddalingaiah,
Aged about 48 years,
2. Shri Nagaraju G.S.,
Son of Late.Siddalingaiah,
Aged about 32 years,
Residing at No.28/3, 10th Cross,
Goragunte playa,
Rajajinagar,
Bengaluru 560 010.
3. Shri Nataraju,
Son of Late.Siddalingaiah,
Aged about 26 years,
The petitioner No.1 & 3 are residing
Guddenahalli, Mayasandra Hobli,
Turuvekere Taluk,
2 SCCH-18 MVC 1836/2019
Mayasandra,
Tumkur District.
(By Pleader Shri Shivakumar M.)
V/s
Respondent 1. Shri Kemparaju,
Son of Late.Puttegowda,
Aged about 33 years,
No.20-89B, Reliance Green Motikhavdi,
Jamnagar, Gujarat-36114.
Owner of the car bearing NO.KA-06-
EK-1155
(Exparte)
2.Shri Prathap Kumar,
Son of Krishnappa,
T.P.K. Road,
Raghavendra Nagar,
Tumkur.
Driver of the car bearing No.KA-06-
EK-1155
(Exparte)
J U D G M E N T
The petitioners have filed this claim petition against the respondent U/S. 166 of M.V. Act for seeking compensation of Rs.20,00,000/- for the death of Siddalingaiah, Son of Late Nanjappa in a road traffic accident.
3 SCCH-18 MVC 1836/2019
2. The brief contents of petition are as under:
On 24.11.2018 at about 10.00 p.m. Siddalingaiah was proceeding in a motorcycle bearing No.KA-06-E-155 to go to Yediyur to Thuruvekere, slowly cautiously by observing all the traffic rule and regulations, when they reached near Narihenahalli Gate, CS pura Road, Turuvekre Taluk, at that time a car bearing No.JG-10-CG-2365 driven by its driver recklessly, unmindfully without following the traffic rules suddenly stop the car at the centre of the road, due to the said impact, Siddalingaiah was hit to the back side of the car and succumbed to the injuries at the spot.
3. The contention of the petitioners is that, deceased Siddalingaiah was hale and healthy at the time of accident, aged about 58 years, doing agriculture and getting an income of Rs.20,000/- per month and he was contributing his entire income towards the welfare of the family. Due to demise of Siddalingaiah, petitioners have suffered a lot and lost their bread earner. The 4 SCCH-18 MVC 1836/2019 accident occurred due to negligence of the driver of the car bearing No.JG-10-CG-2365 and as such, the respondents are liable to pay compensation to the petitioners. Contending the above facts, they pray for grant of compensation with interest and cost.
4. In response to the petition notice, the respondents have not appeared before the court, placed exparte.
5. In order to prove the case, the petitioner No.1 is examined as PW1 and got marked the documents at Ex.P1 to Ex.P12 and closed her side.
6. Heard arguments.
7. On the basis of above pleadings, the following points that arises for my consideration are :
1. Whether the petitioners prove that Sri. Siddalingaiah, Son of Late Nanjappa died due to injuries sustained by him in a motor vehicle accident that was taken place on 24.11.2018 at about 10.00 p.m. near Narihenahalli Gate, CS pura Road, Turuvekere Taluk,Tumkur district involving car 5 SCCH-18 MVC 1836/2019 bearing No.JG-10-CG-2365 belonging to the respondent No.1 as alleged?
2. Whether the petitioners prove that the accident has mainly occurred due to 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 deceased?
4. Whether the petitioners are entitled for compensation as prayed? If so, at what rate from whom?
5. What order or award?
8. My findings to the above issues are as under:
Issue No.1 to 3: In the Affirmative Issue No.4: Partly Affirmative Issue No.3: As per final order for the following:
R E A S O N S
9. Issue No.1 & 2 : These issues are interconnected with each other, hence in order to avoid the repetition of facts, these issues are taken together for common consideration. 6 SCCH-18 MVC 1836/2019
10. During the course of arguments, the learned counsel for the petitioners argued by reiterating the contents of petition and also evidence put forth by PW1. Further he argued that as per police investigation papers the alleged accident occurred due to the negligence of the driver of the car bearing No.JG-10-CG-2365. Further contended that the petitioners have proved their case as contended in the petition by producing oral and documentary evidence. Accordingly, they pray to allow the petition.
11. To substantiate the said fact, the petitioner No.1 is examined as P.W.1. Further in support of her case, petitioner has produced the documents and the same are marked as Ex.P1 to Ex.P12.
12. Further to prove the negligence of the driver of the car bearing No.JG-10-CG-2365, petitioners have produced the prosecution papers same are marked as Ex.P1 to Ex.P8 such as, FIR with Complaint, spot mahazar, rough sketch, notice u/s 133 of the 7 SCCH-18 MVC 1836/2019 MV Act, reply to Ex.P4, Inquest, P.M. report and charge sheet. On perusal of Ex.P1 & Ex.P8, it reveals that Turuvekere police have registered case against the driver of the car bearing No.JG-10- CG-2365 in CR.290/2018 and after completion of investigation, the I.O. has filed the charge sheet as against the driver of the Container for the offences punishable u/s 279 and 304(A) of IPC and S. 134(A) & (B), 196 of IMV Act.
13. Inspite of service of notice, the respondents have not appeared before the court, placed exparte. If at all, they have not caused the accident, they would have appeared before the court and contested the case. So, adverse inference could be drawn against him.
14. Considering the above, facts and circumstances of the case and on perusal of evidence of PW1 coupled with documents and for the above, I am of the opinion that the petitioner has proved that the accident occurred due to the negligence of the 8 SCCH-18 MVC 1836/2019 driver of the car as contended in the petition by producing oral and documentary evidence.
15. Further on perusal of Ex.P6 and Ex.P7 Inquest report and P.M. report reveals that, deceased Siddalingaiah has sustained grievous injuries in the accident and succumbed to the injuries.
16. 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).
17. Looking to the oral evidence of PW1 and the documents placed before the court, I am of the opinion that the accident occurred due to the negligence of the driver of the car bearing No.JG-10-CG-2365. Hence, I answer issue No.1 & 2 in the affirmative.
9 SCCH-18 MVC 1836/2019
18. Issue No.3- The specific contention of the petitioners is that the petitioner No.1 is the wife, the petitioner No.2 & 3 are the sons of the deceased Siddalingaiah. The petitioners in order to prove the relationship of the petitioners with the deceased, the petitioners have produced Ex. P9 to Ex.P12 i.e., notarised copy of Aadhar card of petitioner No.1 to 3 and Aadhar card of the deceased.
19. At this stage, this court has drawn the attention on the judgment reported in 2020 ACJ 759 in case of National Insurance Co. Ltd., Vs. Birender and others in which it is held that " The legal representatives of the deceased have a right to apply for compensation. 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 consider the application irrespective of the fact whether the concerned legal 10 SCCH-18 MVC 1836/2019 representative was fully dependant on the deceased and not to limit the claim towards conventional heads only"
20. 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.
21. Further in view of the judgment reported in ILR 2014 KAR 5169 in case of A.Arun & Another Vs. H.B.Pushpa & Another, in which it is held that "Loss of dependency need not necessarily be confined to money-payments. It also includes goods and services. The loss of services of the deceased as wife and mother would also require to be sounded in terms of money. The loss of a mother for children of infant age and the areas in which the loss would be felt are such as cannot possibly be compensated in terms of money at all. "
11 SCCH-18 MVC 1836/2019
22. In view of the above said judgments, considered peculiar facts and circumstances of the case, petitioner Nos. 2 & 3 though they are major sons, they are also dependant on the deceased. Considering the evidence of PW1 and the documents placed before the court, I am of the considered view that the petitioner Nos. 1 to 3 are legal representatives and the dependants of the deceased Siddalingaiah. Hence, I answer the issue No.3 in the affirmative.
23. Issue No.4:- The specific contention of the petitioner is that, deceased Siddalingaiah was hale and healthy at the time of accident, aged about 58 years, doing agriculture and getting an income of Rs.20,000/- per month. Due to the sudden demise of Siddalingaiah, the petitioners have put to untold misery, pain and sufferings, frustration and financial loss.
24. To prove the age of the deceased, the petitioners have produced Aadhar card, which is marked at Ex.P12. On perusal of the same, the year of birth of the deceased was mentioned as 12 SCCH-18 MVC 1836/2019 1962, the alleged accident was took place on 24.11.2018. So as on the date of accident the age of the deceased was 56 years. So, the same is considered as age of the deceased, then the proper Multiplier applicable to the case on hand is "9".
25. Further to prove the income the petitioners have not produced any documents. In the absence of the positive documents with respect to his avocation and income, it is very difficult to believe the income of the petitioner as alleged in the claim petition. So, considering the present life condition and the age of the petitioner and the year of accident, if notional income of Rs.8,500/- is to be considered, it will meet the ends of justice. So, the same is considered as the income of the petitioner per month. The annual income comes to Rs.1,02,000/-
26. At this juncture this court has drawn the attention on the decision of the Hon'ble Supreme Court reported in 2017 13 SCCH-18 MVC 1836/2019 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 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.
14 SCCH-18 MVC 1836/2019
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 where the deceased was between the age of 40 to 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.
27. In the instant case, the age of the deceased is considered as 56 years, he comes between the age of 50-60 years, 10% of the income of Rs.10,200/- is to be added to the income of deceased as future prospects, on such addition, the total income of the deceased comes to Rs.1,12,200/- p.a..
28. As I have already discussed that the petitioner Nos. 1 to 3 are financial dependants of the deceased. So, as per the decision of the Hon'ble Supreme Court reported in 2012 ACJ 1298 in 15 SCCH-18 MVC 1836/2019 between Sarlaverma Vs. Delhi Transport Corporation Ltd., if 2-3 dependants, 1/3rd shall be deducted towards the personal and living expenses. In the case on hand, petitioner Nos. 1 to 3 are the financial dependants of the deceased, so, 1/3rd of the income of the deceased shall be deducted towards his personal expenses, on such deduction, the income of the deceased comes to Rs.74,800/- p.a.
29. The income of the deceased is taken as Rs.74,800/- p.a. and the multiplier 9 is applied, then the loss of dependency comes to Rs.6,73,200/-. Considering the above facts, I deem it just and reasonable to grant for compensation of Rs.6,73,200/- under the head of loss of dependency.
30. 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. 16 SCCH-18 MVC 1836/2019
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- operation, affection and aid of the other in every conjugal relation."
17 SCCH-18 MVC 1836/2019
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 parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the 18 SCCH-18 MVC 1836/2019 parents is a compensating for loss of love, affection, care and companionship of the deceased child.
31. 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. The petitioner No.2 & 3 are the sons of the deceased is entitled for parental consortium Parental consortium, which is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training.
32. I also rely the judgment of Hon'ble Apex Court observed in Civil Appeal No.2705/2020 in case of United India Insurance Co.Ltd., Vs. Satinder Kaur @ Satvindar Kaur and others, DD on 30.06.2020. Therefore, Rs.40,000/- each is awarded to the petitioner Nos. 1 to 3.
19 SCCH-18 MVC 1836/2019
33. Therefore, in view of the decision of the Hon'ble Supreme Court reported in 2017 ACJ 2700 in between National Insurance Co. Ltd., Vs. Pranay Sethi and others Rs.15,000/- is awarded under the head of loss of estate and Rs.15,000/- is awarded under the head of transportation of dead body, funeral and obsequies ceremony expenses.
34. 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.6,73,200-00
Towards loss of consortium Rs.1,20,000-00
Towards loss of estate Rs. 15,000-00
Towards transportation of dead body, Rs. 15,000-00 funeral & obsequies ceremony expenses Total Rs.8,23,200-00 20 SCCH-18 MVC 1836/2019
35. LIABILITY: As I have already discussed in issue No.1 & 2 that the accident occurred due to the negligence of the driver of the car bearing No.JG-10-CG-2365.
36. The respondents are jointly and severally liable to pay the compensation along with interest @ 8% P.A. from the date of petition till the date of deposit. Accordingly, I answer the issue No.4 in the partly affirmative.
37. ISSUE NO.5: In view of my findings on the above issues, I proceed to pass the following;
ORDER The claim petition filed by the petitioners U/S 166 of MV Act is hereby partly allowed with costs.
The petitioners are entitled for compensation of Rs.8,23,200/- with interest @ 8% p.a. from the date of petition till the date of deposit.
21 SCCH-18 MVC 1836/2019
The respondents are liable to pay the compensation with interest at 8% p.a. from the date of petition till the date of deposit within two months from the date of this order.
After deposit of the compensation amount together with interest, the petitioner No.1 is awarded 80% of the compensation amount and 10% each is awarded to the petitioner No.2 & 3.
With regard to the compensation amount together with interest of petitioner No.1, 40% of the amount shall be deposited in any nationalized/schedule bank of their choice, for a period of 3 years and remaining 60% of the amount shall be released to the petitioner through e-payment.
With regard to the compensation amount together with interest of petitioner No.2 & 3 entire 22 SCCH-18 MVC 1836/2019 amount shall be released to the petitioners through e- payment.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
(Dictated to the stenographer online, corrected by me and then pronounced in the open court on this 12th day of February 2021) (MAHANTESH S.DARGAD) III ADDL. SMALL CAUSES JUDGE & ACMM, BENGALURU.
ANNEXURE List of witnesses examined on petitioner's side:
PW1 Shri Nagaraju G.S. List of documents exhibited on petitioner's side:
Ex-P1 True copy of FIR with complaint Ex-P2 True copy of Spot mahazar Ex-P3 True copy of Rough sketch Ex-P4 Notice issued u/s 133 of MV Act Ex-P5 Reply to Ex.P4 Ex-P6 True copy of Inquest report Ex-P7 True copy of P.M.report 23 SCCH-18 MVC 1836/2019 Ex-P8 True copy of charge sheet Ex.P9 Notarised copy of Aadhar Card of petitioner No.1 Ex.P10 Notarised copy of Aadhar Card of petitioner No.2 Ex.P11 Notarised copy of Aadhar Card of petitioner No.3 Ex.P12 Notarised copy of the Aadhar card deceased
List of witnesses examined on respondents' side:
None List of documents exhibited on respondents' side:
Nil III ADDL.SMALL CAUSES JUDGE & ACMM, Bengaluru.