Bangalore District Court
In The Petition Are Not Within His ... vs No.1 Has Examined His Administrative ... on 24 January, 2015
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 24th day of January, 2015.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com.,LL.B. (Spl),
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C.No.6269/2010
1. Gowramma
W/o Late MN.Krishnappa,
Aged about 38 years.
2. Darshan.K.Gowda
S/o Late M.N.Krishnappa,
Aged about 20 years.
3. Dhanusha K.Gowda
S/o Late M.N.Krishnappa,
Aged about 85 years.
4. N.Narasegowda
S/o Narasegowda,
Aged about 85 years.
5. Shanthamma
W/o N.Narasegowda,
Aged about 75 years. (Died)
The petitioner No.3 is
Minor represented by natural
guardian mother, namely,
Gowramma 1st petitioner.
All are residing at
Halagur Post and Hobli,
Karibedi, Malavalli Tlaluk, .... PETITIONERS
Mandya District.
2 M.V.C.NO.6269/2010
(SCCH-7)
(By Smt. Ashakumari, Adv.,)
V/s
1. The Manager
National Insurance Company Ltd.,
Regional Office, D-0-3,
No.15.17.19, 1st Floor,
Lakshmi Complex,
St.Marks Road, Bangalore-1.
(Insurer of Motor Bike bearing
No.KA-42-J-7255)
2. M.R.Doreswamy
S/o Ramaiah,
No.58, M.Madhapura,
Ramanagara Tlaluk and District. ...RESPONDENTS
(R.C. Owner of Motor Bike
Bearing No.KA-42-J-7255)
(R1- By Sri. Sunil S. Narayan, Adv.,)
(R2- By Sri.Devaraju B.K. Adv.,)
JUDGMENT
It is pertinent to note here that, on 07.12.2012 the present petition was partly allowed with costs by passing a Judgment and Award and later, as per the Judgment dated 02.06.2014 passed by the Hon'ble High Court of Karnataka in MFA No.4682/2012 (MV) clubbed with MFA No.4535/2012, the said Judgment and Award passed by this Tribunal is set aside and remanded back to this Tribunal for reconsidering the matter afresh and to pass appropriate order in accordance with law. Hence, this petition is pending for consideration and disposal before this Tribunal.
3 M.V.C.NO.6269/2010(SCCH-7)
2. The brief averments of the petitioners' case are as follows;
a) On 10.8.2010 at about 5.10 p.m., the deceased was riding a Motor Bike bearing No.KA-11-K-6398 along with his friend Ramesh as a pillion ride, on Hosahallikere, tank bund road, near Kabbalu very carefully, cautiously and observing all traffic rules and left side of the road. At that time, another Motor Bike bearing No.KA-42-J-7255 driven by its rider at a very high speed and in a rash and negligent manner so as to endangering human life, came from opposite direction and took extreme right of the road, came and dashed against deceased Motor Bike. Due to impact, both were fell down and sustained injuries and the deceased sustained severe injuries over the head and other parts of the body. Immediately, the deceased was taken to Kanakapura Government Hospital, wherein, first aid was given and then, he was referred to Nimhans Hospital for head injury treatment by 108 Ambluance, wherein, treated as inpatient, X-ray and C.T. Scan was done and then, he was referred to Mallige Hospital for further treatment. Inspite of best efforts made by the Doctor, the deceased was died on 16- 08-2010 at about 12.45 a.m., during the course of treatment. Thereafter, the body was sent to conduct the post mortem and after post mortem, body was handed over to their family members. They have performed funeral and his lost rites incurred a sum of Rupees 60,000/- and also incurred another Rupees 1,50,000/- for treatment, conveyance and nourishment etc., during his Hospitalization and also incurred another Rupees 20,000/- for transportation of dead body from Bangalore to his native place. Prior to that accident, the 4 M.V.C.NO.6269/2010 (SCCH-7) deceased was very hale and healthy and he was working as a Village Accountant in Honnganahalli Circle, Halagur and drawing salary of Rupees 14,091/- per month and he was also an income tax assessee and deceased was having bright future and also two promotions carrier, due to tragic and sudden death of deceased, they are lost future prospects and lost sole earning and elder member of the family. Hence, they are put to great hardship and mental agony.
b) The Sathanur Police have registered a case against the rider of Motor Bike bearing No.KA-42-J-7255 for the offences under section 279, 337, 304(A) of IPC. In turn, the Police have taken up investigation and after investigation, the Police have filed a charge sheet as against the rider of Motor Bike. This accident happened due to sole, rash and negligent manner of the Motor Bike by its rider.
c) At the time of accident, 1st respondent was the insurer and 2nd respondent was the R.C. Owner of the Motor Bike. Rider was holding a valid and effective driving licence. Therefore, both the respondents are jointly and severally liable to payment of compensation. Hence, this petition.
3. Initially, though the notice was duly served on the Respondent No.1, he was remained absent and hence, he was placed as exparte on 22.11.2010. Later, the Respondent No.1 has appeared before this Tribunal through his Learned Counsel and as per the Order dated 20.12.2010 passed on I.A.No.I, the exparte Order is set-aside and the Respondent No.1 is taken on file. But, initially, inspite of giving sufficient opportunities, the Respondent No.1 had not filed the written 5 M.V.C.NO.6269/2010 (SCCH-7) statement. Later, as per the Order dated 19.03.2011 passed on I.A.No.III, the written statement filed by the Respondent No.1 is taken on file.
4. Initially, though the notice was duly served on the Respondent No.2, he was remained absent and hence, he was placed as exparte on 22.11.2010. Later, the Respondent No.2 has appeared before this Tribunal through his Learned Counsel and as per the Order dated 22.11.2010 passed on I.A.No.II, the exparte Order is set-aside and the Respondent No.2 is taken on file. The Respondent No.2 has filed the written statement.
5. The Respondent No.1 inter-alia denying the entire case of the Petitioners, has further contended as follows;
a) The claim Petition as presented against him, is not maintainable in law, facts and circumstances of the case.
b) The various averments made by the Petitioners in the petition are not within his knowledge with regard to the age, avocation, income, alleged occurrence of the accident and the death of the deceased.
c) The deceased was working as a Village Accountant in Honnaganahalli and he was aged 53 years, earning a sum of Rupees.14,091/- per month at the time of accident are all not within his knowledge.
6 M.V.C.NO.6269/2010(SCCH-7)
d) The quantum of compensation as claimed in the claim petition to an extent of Rupees 15,00,000/- is without any basis and the said claim is highly disproportionate and exorbitant to the facts and circumstances of the case and hence, the petitioners are not entitled to claim any compensation, much less, the compensation claimed.
e) At any rate, the Motor Cycle bearing No.KA- 42-J-7255 has not been involved in the alleged accident. The alleged accident in question is a self accident and no other vehicles have been involved.
f) If the Tribunal holds that, it is not a self accident and the Motor Cycle bearing No.KA-42-J-7255 has been involved and then, the driver and the owner of the said vehicle must possess a valid and effective driving license as on the date alleged accident.
g) It is not liable to pay any compensation, much less, the compensation claimed, since the owner of the vehicle, i.e. 2nd respondent failed to inform regarding the occurrence of the accident and also furnish the particulars of the driver of the owner vehicle and his driving license, which amount to breach of terms and conditions of the insurance policy.
h) It is not liable to pay any compensation, much less, the compensation claimed, since, the concerned jurisdictional Police Station failed to forward all the 7 M.V.C.NO.6269/2010 (SCCH-7) related documents to the concerned insurer within 30 days from the date of information of the accident.
i) The policy of insurance with respect to the Motor Cycle bearing No.KA-42-J-7255 is not admitted at present. In the event of its confirmation, he may be permitted to admit the same.
j) It may be permitted to file additional statement of objections on a later date in the event of owner of the Motor Cycle colluding with the Petitioners or under the changed circumstances of the case and may be permitted to urge all the grounds a provided under Section 170 of the M.V. Act at a later stage. Hence, prayed to dismiss the petition with exemplary costs.
6. The Respondent No.2 inter-alia denying the entire case of the Petitioners, has further contended as follows;
a) The petition filed by the Petitioners against him is not maintainable either in law or on facts.
b) The averments made in the claim petition as to the as to the name, father's name, age etc., of the deceased are not within his knowledge.
c) The Petitioners will have to prove that, they are the legal heirs of deceased M.N.Krishnappa.
8 M.V.C.NO.6269/2010(SCCH-7)
d) The averments made in the petition as to alleged place, date and time of alleged accident, alleged death of M.N.Krishnappa S/o N. Narasegowda, alleged expenses are also not within his knowledge.
e) The compensation claimed is excessive and exorbitant and the Petitioners are not entitling for the same.
f) He is the registered owner of the Motor Cycle bearing No. KA-42-J-7255 and the vehicle was driven by experienced rider slowly and cautiously and when he was proceeding cautiously, all of a sudden a rider of another Motor Cycle bearing No.KA-11-K-6398 came to the extreme right side from opposite site with heavy speed and rash and negligent and dashed to the Motor Cycle belong to him and the rider Motor Cycle bearing No.KA-11-K-6398 is the cause route of the accident, then the petitioners in collusion with the local Police, managed to file a false complaint against the rider of Motor Cycle bearing No. KA-42-J-7255, though there is no fault on the part of the rider of Motor Cycle bearing No. KA-42-J-7255, with an intention to get compensation.
g) He insured the said Motor Cycle bearing No. KA-42-J-7255 with the first respondent Insurance company, vide Policy No.35060131096201633689, valid from 12.04.2010 up to 11-04-2011, which was in force as on the date of the alleged accident and covers the risk, apart from that, the rider of Motor Cycle bearing No. KA- 42-J-7255 had valid and effective driving license as on 9 M.V.C.NO.6269/2010 (SCCH-7) the date of the alleged accident. Hence, prayed to dismiss the claim petition with costs.
7. Based on the above said pleadings, my Learned Predecessor-in-Office has framed the following Issues;
ISSUES
1. Whether the Petitioners prove that, they are the legal representatives of the deceased M.N.KRISHNAPPA?
2. Whether the Petitioners prove that, on 10-08-2010, at about 5.10 p.m., when deceased was riding Motor Cycle bearing Registration No.KA-11-K-6398 along with his friend Ramesh as pillion rider, on Hosahallikere Tank Bund Road, near Kabbalu, within the limits of Sathanur Police Station, at that time, the rider of another Motor Cycle bearing Registration No.KA-42-J-7255 ridden the same in a rash or negligent manner and dashed against the deceased Motor Cycle? If so, whether the Petitioners prove that, deceased sustained fatal injuries and succumbed to the injuries was due to alleged accident?
3. Whether the Petitioners prove that, they are entitled for compensation? If so, how much and from whom?
4. What Order or Award?
8. In order to prove their case, the Petitioners have examined the Petitioner No.1 as P.W.1 and have also examined four witnesses as P.W.2 to P.W.5 by filing the affidavits as their examination-in-chief and have placed 10 M.V.C.NO.6269/2010 (SCCH-7) reliance upon Ex.P.1 to Ex.P.19. On the other hand, the Respondent No.1 has examined his Administrative Officer as R.W.1 and Panel Investigator as R.W.2 by filing the affidavits as their examination-in-chief and has placed reliance upon Ex.R.1 to Ex.R.8. On the other hand, the Respondent No.2 himself has been examined as R.W.3 by filing an affidavit as his examination-in-chief and no documents got marked on his behalf.
9. Heard the arguments. The Learned Counsel appearing for the Respondent No.1 has filed the written arguments.
10. In support of the submission, the Learned Counsel appearing for the Petitioners Sri.Ashakumari R. has placed reliance upon the decisions reported in,
i) 2013 ACJ 1633 High Court of Andhra Pradesh at Hyderabad (M.A.C.M.A.No.2116 of 2005 (K.Ramanar V/s K.Thirumala Reddy and Another), wherein, it is observed that, Motor Vehicles Act, 1988, section 168 (1) - Just compensation - Whether compensation more than claimed can be awarded to a claimant if he is entitled to it according to the facts and evidence of the case-Held: yes.
ii) 2013 ACJ 1964 High Court of Judicature at Madras (United India Insurance Company Ltd., V/s M.Nagamani and Others), wherein, it is observed that, 11 M.V.C.NO.6269/2010 (SCCH-7) Motor Vehicles Act, 1988, section 168 (1)-Just compensation-Whether court can award compensation more than claimed in order to provide just compensation-Held: yes.
iii) 2013 ACJ 1844 High Court of Andhra Pradesh at Hyderabad (Bodige Padma and Others V/s Makula Shanker and Others), wherein, it is observed that, Motor Vehicles Act, 1988, section 168 (1)-Just compensation-Whether court has to grant just compensation even if it is more than the amount claimed-Held:
yes.
iv) 2005 ACJ 318 High Court of Delhi at New Delhi (Sushma Rani and Others V/s Sushil Kumar Dua and Another), wherein, it is observed that, [ Motor Vehicles Act, 1939, section 110-B (section168 (1) of 1988 Act)-Just compensation-Award of compensation more than claimed-Whether compensation which is reasonable on the basis of evidence on record can be awarded to the claimants even if it is more than the amount claimed-Held:
yes.
v) 2005 ACJ 323 In the Hight Court of Jdicature at Madras (C.M.A.No.1649 of 1996, decided on 24.06.2004) (Gnanam Santhanam and Others V/s Sathyalakshmi Enterprises and Others), wherein, it is observed that, 12 M.V.C.NO.6269/2010 (SCCH-7) Quantum-Fatal accident-Deceased aged 67, renowned musician in Carnatic at the peak of his career-Claimants: widow and 3 children-Tribunal took income from income tax return at Rs.1,72,548/- p.a., assessed dependency at Rs.1,15,100/-
p.a., adopted multiplier of 6 and awarded Rs.6,90,600/- plus Rs.20,000/-
for loss of consortium-Appellate Court took into consideration other income shown in the return, assessed income at Rs.3,29,727/- p.a., dependency at Rs.2,20,000/- p.a., adopted multiplier of 9 and allowed Rs.19,80,000/- plus Rs.20,000/- - Award of Rs.7,10,600/-
enhanced in appeal to Rs.20,00,000/-.
Quantum-Interest-Allowed at the rate of 9 per cent.
vi) 2013 ACJ 1403 Supreme Court of India at New Delhi (Rajesh and Others V/s Rajbir Singh and Others) , wherein, it is observed that, Quantum-Fatal accident-Principles of assessment-Future prospects-Whether formula for increase of income for future prospects adopted for persons with permanent jobs in Sarla Verma's case, 2009 ACJ 1298 (SC), may also be applied to persons who were self-
employed or were engaged on fixed wages-Held: yes; 50 per cent of actual income (after deduction of tax) for 13 M.V.C.NO.6269/2010 (SCCH-7) persons below 40 years; 30 per cent for age group of 40 to 50 years; 15 per cent for age group of 50 to 60 years;
but, no addition thereafter.
Quantum-Fatal accident-Principles of
assessment-Consortium-Loss of-It
would be just and reasonable if
Rupees.1,00,000 is awarded for loss of consortium.
Quantum-Fatal Accident-Principles of assessment-Funeral expenses-It would be just, fair and equitable, under the head of funeral expenses, at Least Rupees 25,000/- may be awarded in the absence of evidence for higher expenses.
11. My answers to the above said Issues are as follows;
Issue No.1 : In the Affirmative,
Issue No.2 : In the Affirmative,
Issue No.3 : Partly in the
Affirmative,
The Petitioners No.1
to 4 are entitled for a
sum of Rupees
13,98,745/- as
compensation from the
Respondent No.1.
Issue No.4 : As per the final Order,
for the following;
REASONS
12. ISSUE NO.1 :- The P.W.1, who is the Petitioner
No.1 has stated in her examination-in-chief that, the Petitioner 14 M.V.C.NO.6269/2010 (SCCH-7) No.2 and 3 are her children and the Petitioners No.4 and 5 are her parents-in-law and the Petitioner No.3 is a minor and hence, she is representing the Petitioner No.3 as natural guardian and mother. She has further stated that, the Petitioner No.5, namely Shanthamma, was died during the pendency of this claim petition. She has further stated that, they have filed the present claim petition as against the Respondents seeking compensation on account of death of her husband, namely, M.N.Krishnappa, in a road traffic accident, which was occurred on 10.08.2010 at about 5.10 p.m., wherein, her deceased husband had sustained severe head injuries and other injuries all over the body and during the course of treatment in Mallige Hospital, inspite of best efforts made by the Doctors, he died on 16.08.2010 at about 12.45 a.m. The Petitioners have produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Requisition, Ex.P.4 Further Complaint, Ex.P.6 Inquest Mahazar, Ex.P.7 Post Mortem Report, Ex.P.8 Charge Sheet, Ex.P.10 Genealogical Tree, Ex.P.11 Survival Certificate, Ex.P.12 Death Certificate relating to deceased M.N.Krishnappa, Ex.P.13 Death Certificate relating to Petitioner No.5, Ex.P.14 Election Identity Card relating to deceased and Ex.P.15 Election Identity Card relating to Petitioner No.1 and Ex.P.16 Discharge Summary. On perusal of the contents of the said material documents, it clearly goes to show that, the Petitioner No.1 is a wife, Petitioners No. 2 and 3 are the children, Petitioner No.4 is a father and Petitioner No.5 is a mother of deceased M.N.Krishnappa S/o N.Narasegowda, who died on 16.08.2010 at 12.45 a.m., in Mallige Hospital, when he was under treatment to the accidental injuries, which was occurred on 10.08.2010 at 5.30 15 M.V.C.NO.6269/2010 (SCCH-7) p.m. It is also clear from the contents of Ex.P.13 that, on 20.10.2010, the Petitioner No.5 is expired, who is the mother of the said deceased. From this, it is made crystal clear that, the Petitioner No.1 being a wife, Petitioners No. 2 and 3 being sons and Petitioner No.4 being a father of the said deceased, are the legal representatives of deceased M.N.Krishnappa S/o Narasegowda. Accordingly, I answered Issue No.1 in the Affirmative.
13. ISSUE NO.2 :- The P.W.1 has stated that, she came to know that, on 10.08.2010 at 5.30 p.m., her deceased husband was riding a Motor Bike bearing Registration No.KA- 11-K-6398 along with his friend, namely, Ramesh as a pillion rider, on Hosahallikere-Tankbund Road, near Kabbalu very carefully, cautiously and observing all traffic rules on the left side of the road and at that time, another Motor Bike bearing Registration No.KA-42-J-7255 ridden by its rider at a very high speed and in a very rash and negligent manner came from opposite direction and tried to overtake one ahead vehicle and took extreme right of the road and dashed against the deceased Motor Bike. She has further stated that, as a result, both were fell down along with Motor Bike and sustained injuries and the deceased sustained severe head injury and other injuries all over the body. She has further stated that, immediately, the deceased was shifted to Kanakapura Government Hospital, wherein, first aid was given and then, deceased referred to Nimhans Hospital for head injury treatment, wherein, he was treated as an inpatient, X-ray and CT scan was done and then, he was referred to Mallige Hospital and inspite of best efforts made by the Doctors, he 16 M.V.C.NO.6269/2010 (SCCH-7) died during the course of treatment on 16.08.2010 at about 12.45. a.m. She has further stated that, the body was sent to post mortem and after post mortem, the body was handed over to them. She has further stated that, this accident happened due to sole rash and negligent manner of riding of Motor Bike bearing Registration No.KA-42-J-7255 by its rider and one Mr.B.Ravikumar, who was seen of occurrence has lodged a complaint before the Sathanur Police and the Police have registered the case as against the Motor Bike rider and in turn, the Kanakapura Circle Police have taken investigation and after the investigation, the said Police have filed a charge sheet as against the driver of the said offending Motor Bike.
14. No doubt, the P.W.1 in her cross-examination has stated that, she has not personally witnessed the accident and she came to know about the accident over phone. Further, the Respondent No.1 has examined his Administrative Officer as R.W.1, who has stated in his examination-in-chief that, the investigation made by the agency appointed by their Company revealed that, the 2 nd Respondent was not riding the vehicle bearing Registration No.KA-41-J-7255, on the other hand, the said vehicle was ridden by one Abhishek and the extract of MLC register issued by the Government Hospital, Kanakapura indicates that, both the deceased Krishnappa and said Abhishek came to the Government Hospital in 108 Ambulance together and took initial treatment in the Government Hospital with history of road traffic accident and from this, it is clear that, it was the said Abhishek, who was riding the vehicle. He has further stated that, the fact that, the Respondent No.2, who was stated to be the rider of the 17 M.V.C.NO.6269/2010 (SCCH-7) offending Motor Bike bearing Registration No.KA-42-J-7255, at the time of accident of alleged accident, is not shown to have sustained injuries nor shown to have taken treatment in any Hospital indicates that, the Respondent No.2 was not riding the vehicle in question. He has further stated that, the investigation further reveals that, at the time of alleged accident, Abhishek was under influence of Alcohol and he was not possessing the driving licence and during investigation, the said Abhishek has confirmed that, he was riding the vehicle No.KA-42-J-7255 in question and to this effect, he has also given a letter to their company. He has further stated that, the document produced reflects that, the Respondent No.2 was not riding the vehicle at the time of alleged accident and the Petitioners with an intention to foist the liability on their company, have deliberately stated that, the vehicle in question is ridden by the Respondent No.2 and even the Petitioners are having knowledge that, the said Abhishek, who was rider of the vehicle was not possessing driving licence. Further, the Respondent No.1 has also examined the Panel Investigator of his Company as R.W.2, who has stated in his examination-in-chief that, on 29.07.2011, the Respondent No.1 Company entrusted him to investigate and provide detailed information about the alleged accident, that occurred on 10.08.2010 at Hosahallikere Tank bund road, near Kabbalu and on 06.08.2011 at about 5.00 p.m., he met Abhishek in his residence at Madapura Village, Ramnagar Taluk. He has further stated that, when he enquired him about the alleged accident was accompanied by his friend cum neighbour Renuka Prasad and in turn Abhishek narrated the actual fact about the alleged accident to him and thereafter, the said 18 M.V.C.NO.6269/2010 (SCCH-7) Abhishek himself asked his friend Renuka Prasad to reduce the same in writing as his hand writing was not so good and thereafter, it was read over by Abhishek and after going through the contents of the letter/facts, Abhishek signed to the said letter and he also gave his photograph along with his signature affixed behind the photographs and thereafter, he also got the signature of his friend cum neighbour Renuka Prasad, to the letter. He has further stated that, he had applied for MLC records by paying requisite fees from Kanakapura Government Hospital and Nimhans, Bangalore pertaining to M.N.Krishnappa and MLC records from Kanakapura Government Hospital, Ramanagar Government Hospital and Nimhans, Bangalore pertaining to Abhishek with respect to alleged accident and the said records has been issued by the said Hospitals. To substantiate the said oral version of R.W.1 and R.W.2 as well as his defence, the Respondent No.1 has produced Ex.R.2 MLC Extract dated 10.08.2010, Ex.R.3 Another MLC Extract, Ex.R.4 Letter issued by the Government Hospital, Kanakapura, Ex.P.5 Letter written by Sri.Abhishek, Ex.R.6 MLC Extract of Nimhans Hospital with respect to M.Krishnappa, Ex.R.7 MLC Extract of Nimhans Hospital with respect to Abhishek, Ex.R.8 MLC Extract of Abhishek issued by Government Hosptial, Ramanagar. The P.W.2 has also clearly identified the said Ex.R2 and Ex.R.8.
15. But, based on the above said evidence elicited from the mouth of P.W.1, oral version of R.W.1 and R.W.2 and contents of Ex.R.2 to Ex.R.8, it cannot be believed and accept the defence taken by the Respondent No.1 that, the 19 M.V.C.NO.6269/2010 (SCCH-7) Respondent No.2, who is the owner of the offending Motor Cycle bearing Registration No.KA-41-J-7255 was not riding the said Motor Cycle at the time of accident, but, it was ridden by Abhishek and the Respondent No.2 had not sustained any injuries in the said accident, which disclosed that, he was not ridding the said offending vehicle at the time of accident and at the time of alleged accident, the said Abhishek was under
influence of alcohol and he was not possessing the driving licence and as such, the Respondent No.2 being the owner of the said offending Motor Bike is implicated in the said Criminal case and only with an intention to claim compensation from the Respondent No.1 Insurance Company, the Respondent No.2 is falsely implicated in the said criminal case as the said Abhishek, who was a rider of the said offending vehicle was not possessing driving licence, as the Respondent No.1 has not produced the investigation report submitted by the R.W.1 relating to the said alleged accident and has not produced any authenticated documents to show that, after the receipt of the notice of the present claim petition, he has issued a notice to the Respondent No.2 and though the said notice was duly served on the Respondent No.2, he has not replied narrating the true facts. Further, the Petitioners have produced Ex.P.1 FIR and Ex.P.2 Complaint, which clearly disclosed that, on 10.08.2010 at 5.30 p.m., the alleged accident was taken place and on the same day itself, at 6.15 p.m., B.Ravi Kumar, who was a rider of another Motor Cycle has lodged Ex.P.2 Complaint before the Sathanur Police. From this, it appears that, there is no delay as such in lodging the said Ex.P.2 Complaint before the concerned Police in respect of the alleged road traffic accident. If really, there are merits in the 20 M.V.C.NO.6269/2010 (SCCH-7) above said defence taken by the Respondent No.1, the said complainant had not lodged Ex.P.2 Complaint before the concerned Police immediately after the accident. Furthermore, the number of the offending Motor Cycle is clearly mentioned in Ex.P.2 Complaint itself. From this, it is made crystal clear that, the very involvement of the said Motor Cycle bearing Registration No.KA-42-J-7255, is clear from the contents of Ex.P.2 Complaint itself, which is filed by the Complainant within a hour from the time of accident. The same has also been clearly admitted by the R.W.1 in his cross-examination.
Furthermore, the name of the driver of the offending Motor Cycle is not mentioned in Ex.P.1 FIR and Ex.P.2 Complaint and it is also not found in Ex.R.2 and Ex.R.3. The same has also been clearly admitted by R.W.1 in his cross-examination. More so, it is not the case of the Respondent No.1 that, the Petitioner and the Respondent No.2 are the relatives. Under such circumstances, the non-mentioning of the name of the driver of the offending Motor Cycle in Ex.P.2 Complaint, which lodged immediately after the accident, no way helped to the Respondent No.1 to consider his defence. Furthermore, the number of the said offending Motor Cycle is not found in the above said documents produced by the Respondent No.1.
16. The RW1 has further clearly admitted in his cross- examination that, as per the Police records, it has mentioned that, the Respondent No.2 is being the owner of the Motor Cycle bearing Registration No.KA-42-J-7255 was riding the said Motor Cycle at the time of accident and the Police have issued notice Under Section 133 of the Motor vehicles Act to the owner of the offending vehicle after the accident. He has 21 M.V.C.NO.6269/2010 (SCCH-7) shown his ignorance about the reply issued by the Respondent No.2 to the said notice. He is further clearly admitted that, the Police have filed a Charge Sheet alleging that, the Respondent No.2 being the owner cum rider has caused the accident and they have not challenged the contents of Charge Sheet and the name of Abhishek is not mentioned in the witness list of the Charge Sheet and in the Police records, since from the beginning, till filing of the Charge Sheet, no where the name of Abhishek is mentioned. He has further clearly admitted that, as per their investigation, Abhishek is the friend of Respondent No.2 and during the course of investigation, he has not recorded the statement of Respondent No.2, at the time of recording the statement of Abhishek. He has further admitted that, in Ex.R.6, it is mentioned the alleged history of RTA two wheeler hit against another two wheeler and in Ex.R.7, it is mentioned alleged history of RTA skid and fall. He has voluntarily stated that, the said records speaks hit by two wheeler. He has further admitted that, in Ex.R.7 right mark has been put indicating skid and fall, which is relating to two wheeler rider and he has no idea, who actually narrated the said history of the concerned address and in Ex.R.8 also the vehicle has not mentioned. Further it has pertinent to note here that, whatever stated by the R.W.1 and R.W.2 in their examination- in-chief relating to the defence, has not been stated by the Respondent No.1 in his written statement. The same also been clearly admitted by the P.W.1 in his cross examination. If really, there are merits in the said defence taken by the Respondent No.1, it could have been definitely narrated the same in his written statement, at the earliest point of time.
22 M.V.C.NO.6269/2010(SCCH-7) Further, the P.W.2 in his cross-examination has admitted that, nowhere in the Police records, the name of Abhishek find place and in the MLC extracts, which have been produced by their company also, no where it has mentioned the brief of the Motor Cycles, which were alleged have been involved and occurred the accident and in Ex.R.7, it is mentioned as RTA skid and fall and in Ex.R.8, it is mentioned as RTA, fall from bike. He has voluntarily stated that, the Police have left the name of Abhishek. In this regard, the Respondent No.1 has not made any efforts to question or challenge the Charge Sheet, which is alleged to have been filed as against the Respondent No.1, before the competent Court of law. If really, there are merits in the defence taken by the Respondent No.1, it could have been definitely challenge the said Charge Sheet and taken proper legal steps to insert the name of Abhishek, in the place of Respondent No.2. Though, the R.W.2 has recorded the statement of Abhishek, he did not care to record the statement of Respondent No.2. What prevented him to enquire the Respondent No.2, that has not been explained by the Respondent No.1 through R.W.1 and R.W.2. He has further clearly admitted that, except the contents of MLC extracts and alleged statement of Abhishek, they have no documents to show that, Abhishek was riding the offended vehicle and as per the contents of Ex.R.1 Insurance Policy, the Respondent No.2 is an owner of the offended vehicle and in the Police records, it has mentioned that, the Respondent No.2 was riding the said offended vehicle. From this, it is made crystal clear that, only based on the Ex.R.2 and Ex.R.3, Ex.R.7 and R.8 MLC extracts and Ex.R.5 23 M.V.C.NO.6269/2010 (SCCH-7) Letter of Abhishek, the Respondent No.1 has taken such defence about the rider of offending Motor Cycle.
17. It is pertinent to note clear that, the Respondent No.2 himself has been examined as R.W.3 and he has clearly stated in examination-in-chief that, as on date of accident, i.e., on 10.8.2010, he was absolute R.C. Oowner cum rider of the Motor Bike bearing Registration No.KA-42-J-7255 and on 10.8.2010 at about 5.10 p.m., he was riding the said Motor Bike on Hosahallikere tank bund road, near Kabbalu, i.e., from Sathanur side towards kabbalu, at that time, Motor Bike bearing Registration No.KA-11-K-6398 came from opposite with high speed and dashed against his Motor Bike and resulting in which, himself and pillion rider of the said Motor Cycle are fell down and sustained injuries and he sustained only simple injuries and the rider and pillion rider of the Motor Bike bearing Registration KA-11-K-6398 had also sustained injuries. He has further stated that, immediately after the accident, they were shifted to Kanakapura Government Hospital through 108 Ambulance, but, he was not taken any treatment at Kanakapura Government Hospital and Mr.Abhishek, who belongs to their village, after hearing the news of accident of his bike, coming in his Motor Bike towards the accident spot in hurry and in this course, he was also skidded and fell down from his Motor Bike near Kabbalu village and sustained injuries and somebody has brought him to the accident spot in order to transited to the Hospital, by that time, 108 Ambulance came to the accident spot and hence, all the 5 injured persons were shifted to Kanakapura Government Hospital itself. He has further 24 M.V.C.NO.6269/2010 (SCCH-7) stated that, Mr.Ravikumar lodged a complaint before the jurisdictional Police with regard to the said accident and after 2 days, the Kanakapura Circle Police have recorded his statement with regard to the accident. He has further clearly admitted in his cross-examination that, he was the owner of the Motor Bike bearing Registration No.KA-42-J- 7255 as on the date of accident and the Criminal case is registered as against him in respect of the said alleged accident and at the time of accident, himself and his friend Lokesh, were proceeding on his Motor Bike and they were 2 persons on the Motor Bike bearing Registration No.KA-11-K- 6398. He has further clearly stated that, he had not taken treatment in the Kanakapura Government Hospital and his motor vehicle seized by the Police in the Criminal case and the Sathnur Police have recorded his voluntarily statement. He has further stated that, six days after the accident, the injured M.N.Krishnappa died and thereafter, Kanakapura Circle Inspector has recorded his statement and the Police have filed the Charge Sheet as against him and the said Criminal case is still pending for disposal. He has further clearly stated that, he took treatment to the injuries in the Ranganatha Hospital and he has not seen skidding of Mr. Abhishek in the accident spot and Abhishek himself came to the accident spot. From the said evidence R.W.1, it is made crystal clear that, the Respondent No.2, who was the owner of the offending Motor Bike bearing Registration No.KA-42-J- 7255 was riding the said Motor Cycle at the time of accident and not Abhishek, as contended by the Respondent No.1 and a Criminal case is registered and Charge sheet is filed as 25 M.V.C.NO.6269/2010 (SCCH-7) against the Respondent No.2, but, Abhishek not at all involved in the said accident.
18. Further, the Petitioners have examined the Investigating Officer of the Criminal case as P.W.5, who has stated in his examination-in-chief that, on 18.8.2010, he took the records relating to Crime No.112/2010 at Sathnur Police for further investigation and since on 16.08.2010, the injured in the said accident expired, the said records were handed over to him for further investigation. He has further stated that, the Sub-Inspector was seized both the vehicles involved in the accident at the spot on 11.08.2010 anad he has issued Notice Under Section 133 of M.V. Act to the owners of the said vehicles and the Respondent No.2 is an owner as well as rider of the offending Motor Cycle, which involved in the accident. He has further stated that, on 29.10.2010, the Respondent No.2 himself appeared before the Police and admitted that, he was riding said Motor Cycle at the time of accident and the said Motor Cycle was caused the said accident and based on this, they have enquired and submitted the Charge Sheet as against him. He has further stated that, they have recorded the statement of pillion rider of the said Motor Cycle and they have not recorded the statement of Abhishek S/o Muniyappa in the said Criminal case during the course of investigation. From this, it appears that, the Respondent No.2, who was a owner as well as rider of the offending Motor Cycle himself involved in the said road traffic accident and not Abhishek and as such, the Investigating Officer of the said criminal case, has not recorded the statement of Abhishek. If really, Abhishek is 26 M.V.C.NO.6269/2010 (SCCH-7) involved in the said road traffic accident, who was alleged to had been riding the offending Motor Cycle at the time of accident, the Police could have been definitely made him as accused in the Criminal case after thorough investigation and filed a Charge Sheet as against him after investigation. But, the Police have Charge Sheeted as against the Respondent No.2, which is pending for consideration, as per the say of the Respondent No.2. Further, the said Charge Sheet filed by the Police is not challenged by the Respondent No.2 also. The P.W.5 further clearly stated in his cross- examination that, till the statement given by the owner of the offending vehicle, the name of the Accused was not mentioned in the investigation records and only based on the statement given by the owner of the offending vehicle, they have filed a Charge Sheet as against the driver of the offending vehicle. As the Tribunal has already observed based on the contents of Ex.P.1 FIR and Ex.P.2 Complaint that, the offending Motor Cycle number is only mentioned in Ex.P.1 FIR and Ex.P.2 Complaint and the name of the rider of the said offending vehicle is not mentioned in the said documents. Furthermore, immediately after the accident, the deceased was shifted to the Hospital for treatment and till his death, i.e., on 16.08.2010, he was admitted in the Hospital to take treatment to the injuries, which sustained in the said road traffic accident and during the course of treatment, he died, which is clear from the above said discussions. When such was the situation, the deceased had no opportunity to identify the person, who was riding the offending Motor Cycle at the time of accident. It is further clear that, during the course of investigation, the said 27 M.V.C.NO.6269/2010 (SCCH-7) deceased died in the Hospital itself. Therefore, the filing of Charge Sheet as against the Respondent No.2 based on his own statement is believable and acceptable one for consideration of the present petition. More so, neither the Respondent No.2 nor the Respondent No.1 challenged the said Charge sheet. Further, as admitted by the P.W.1 to P.W.3, the said Criminal case is still pending for consideration. Therefore, even though there is a discrepancy in mentioning about the description of the offending Motor Cycle and the occurrence of the accident, in MLC records, that no way fatal to consider the case of the Petitioners. Furthermore, the Respondent No.1 has not produced the documents to show the enquiry with the driver of 108 Ambulance, wherein, the deceased and injured were shifted to the Hospital after the accident. Furthermore, the P.W.5 in his cross-examination has clearly stated that, there were 4 persons in the said 108 Ambulance, while shifting the deceased Hospital and when he enquired with the Hospital authority, it is found that, only one person, who was shifted in the said 108 Ambulance had taken treatment in the Hospital and other 3 persons had not taken treatment in the Hospital. He has further clearly stated that, based on the statement given by the Respondent No.2, on 29.8.2010 itself, he has identified the driver of the said offending vehicle before the witnesses. From the said evidence of P.W.5, it is further made crystal clear that, there are no merits in the defence taken by the Respondent No.1 about the rider of offending Motor Cycle, at the time of accident.
28 M.V.C.NO.6269/2010(SCCH-7)
19. Further, the Petitioners have examined the said Abhishek as P.W.4, who has stated in his examination-in-chief that, he knows the Respondent No.2 Doreswamy since his childhood and prior to one month from the date of receipt of the Court summons, the representatives of the Insurance Company approached him and enquired him regarding traveling in 108 Ambulance from Kabbalu outskirts to Kanakapura and on that day, the representatives of the Insurance Company took his signature by stating that, the signature is required as he has traveling in 108 Ambulance. He has further stated that, he has not given any statement in writing and Ex.R.5 is not in his hand writing and he has not handing over the same to the representatives of the Insurance Policy. No doubt, the P.W.4 has admitted his signature, which is found on Ex.R.5. Even though the P.W.4 has denied the contents of said Ex.R.5 Letter and admitted his signature, the contents of Ex.R.5 no way helped to the Respondent No.1 to consider his defense. Further, the P.W.4 has clearly stated that, the representatives of the Insurance Company took his signature on a blank paper by threatening him and stating that, even they are ready to bring Police and the Police have not at all contacted him regarding the accident of the present case and he has not given any statement before the Police regarding accident. Further, Ex.P.8 Charge Sheet does not disclosed the name of the P.W.4. He has further stated that, he has visited Kanakapura Government Hospital on 10.08.2010, after hearing the news that, Doreswamy met with an accident and he was preceding towards accident spot on his Motor Cycle and at that time, due to skid of his vehicle and he fell down from the Motor Cycle and has sustained injury 29 M.V.C.NO.6269/2010 (SCCH-7) and he fell down from his Motor vehicle near Kaballu village and after he met with an accident, again, he preceeded to the spot, where, Doreswamy met with an accident. He has further stated that, somebody has took him to the spot, where Doreswamy met with an accident and when he reached the spot, where, Doreswamy met with an accident, Ambulance had not come to the said spot and after 5 minutes came to the said spot and he was in consciousness, when Ambulance came to the spot and himself and other 4 injured boarded the Ambulance. He has further stated that, he approached the Kanakapura Government Hospital and he has not narrated about history of the accident and in which manner, he has sustained injury, before the Doctor and he does not know about the contents of the notes written by the Doctor and thereafter, he took treatment Ramanagar Government Hospital and NIHMANS Hospital. He has further stated that, he had sustained injury by skid of his motor vehicle. He has further clearly stated that, the accident made by Doreswamy, is no way concerned to the accident made by him and he was holding LLR to ride Motor Cycle on 10.08.2010 and he has not in habit of consuming Alcohol and the number of the said Motor Cycle, who was ridden by him on 10.08.2010 is KA-04- Ex.D-3432. Further, the friend of P.W.4, Renukaprasad as stated by the P.W.4 in his cross-examination that, he has put his signature on Ex.R.5, the Respondent No.1 did not take care to examine the said Renukaprasad to prove the contents of Ex.R.5. It is also fatal to consider the defence taken by the Respondent No.1. He has further stated that, himself, M.N.Krishnappa and Doreswamy are remaining injured travelled in 108 Ambulance and Doctor advised him to take 30 M.V.C.NO.6269/2010 (SCCH-7) tablets for the injury sustained by him and the Doctor of Kanakapura Government Hospital have not referred him to the Government Hospital, Ramanagar and the Doctors of Ramanagar Hospital, have not referred him to the NIHMANS Hospital. He has further clearly stated that, he has not taken treatment as an inpatient in NIHMANS Hospital. He has also shown his ignorance by saying that, in Ex.R.2 and Ex.R.8, it is mentioned that, he has sustained injury in collusion with another two wheeler. From this, it is made crystal clear that, whatever the evidence stated by the R.W.1 and R.W.2 in respect of falsel implication of Respondent No.2 in the said Criminal case based on Ex.R.2 and Ex.R.8, is clearly go by and as alleged by him, the P.W.4 Abhishek not at all involved in the said road traffic accident, wherein, deceased M.N.Krishnappa S/o N.Narasima Murthy succumbed to the injuries during the course of treatment in the Hospital. Further, the Petitioners have examined the eye witness as P.W.3, who has stated in his examination-in-chief that, he knows deceased M.N.Krishnappa since he was Senior Village Accountant and on 10.08.2010 at about 5.10 A.M., he was proceeding on Motor Bike bearing Registration No.KA-11-K- 6398 as a pillion rider, at that time, deceased M.N.Krishnappa was riding the said Motor Bike on Hosahallikere, Tank bund road, Kabbalu, i.e., Sathnur side towards Kabbalu from carefully and cautiously and observing all the traffic rules, on the left side of the road, at that time, another Motor Bike bearing Registration No.KA-42-J-7255 ridden by its rider at a high speed and in a rash and negligent manner so as to endangering to human life, came from opposite direction and took extreme right side of the road and dashed against their 31 M.V.C.NO.6269/2010 (SCCH-7) Motor Bike and due to impact, both the vehicles are badly damaged. He has further stated that, as a result, both of them were fell down along with Motor Bike and sustained injuries and the deceased sustained severe head injury on left side and other injuries all over the body and he also sustained simple injuries. He is further stated that, himself and his colleagues, who were present on the accident site and the injured were shifted to Kanakapura Government Hospital by 108 Ambulance, wherein, first aid was given and then he was referred to NIHMANS Hospital for head injury treatment and then, he was referred to Mallige Hospital, thereafter, he came to know that, deceased M.N.Krishnappa died on Mallige Hospital during the course of treatment on 16.08.2010. He has further stated that, accident occurred solely due to rash and negligent riding of the said Motor Bike bearing Registration No.KA-42-J-7255 and his colleague, namely, B.Ravikumar, who had seen the occurrence has lodged a complaint before the jurisdictional Police and the Police have registered the case as against the rider of the said Motor Bike and have filed a Charge Sheet as against the rider of the Motor Bike. He has further stated that, the Police have recorded his statement. He has further stated that, except himself, deceased M.N.Krishnappa and offending Motor Bike rider, namely, Doreswamy and his pillion rider, nobody sustained injuries in the said accident. It is pertinent to note here that, the said evidence of P.W.2 is clearly corroborated with the contents of Ex.P.1 FIR, Ex.P.2 Complaint and Ex.P.8 Charge Sheet. Further, the name of the P.W.2 is shown as eye witness of the said road traffic accident in Ex.P.8 Charge Sheet. The P.W.3 has further clearly stated in his cross-
32 M.V.C.NO.6269/2010(SCCH-7) examination that, at the time of accident, he was proceeding as a pillion rider along with M.N.Krishnappa, who died in the alleged accident and in the said accident, he had sustained injury and he took treatment at Kanakapura Government Hospital for one day and further he took treatment at Private Hospital at Hassan for a period of 3 months. He has further stated that, on that day, they were proceeding from Kanakapura towards Sathnur and the Secretary of their Gram Panchayath shifted them to the Hospital in Ambulance along with one more injured and immediately after accident, he was unconsciousness and the said another patient is rider of the offended vehicle. Though the P.W.3 has cross- examined by the Respondent No.1, nothing has been elicited from his mouth about his specific defence, which is stated through R.W.1 and R.W.2 as well as the contents of Ex.R.2 to R.8.
20. Further, the P.W.1 in her cross-examination has clearly stated that, she came to know about the accident over phone and she has visited the Kanakapura Government Hospital as well as NIHMANS Hospital along with the injured and she came to know that, at the time of accident, her husband was riding Motor vehicle along with one pillion rider, namely, Ramesh, i.e., P.W.3 and the said Ramesh also sustained injuries in the said accident. She has further clearly stated that, Ravikumar, who had lodged Ex.P.2 Complaint is a friend of her husband.
21. More so, the contents of Ex.P.1 FIR and Ex.P.2 Complaint disclosed that, B.Ravikumar had lodged Ex.P.2 Complaint before the Sathnur Police as against the rider of the 33 M.V.C.NO.6269/2010 (SCCH-7) offending Motor Bike bearing Registration No.KA-42-J-7255 alleging that, due to rash and negligent manner of riding of the said offending Motor vehicle by the said rider, the road traffic accident was taken place on 10.08.2010 at 5.10 p.m., when M.N.Krishnappa S/o Narasegowda was riding a Motor Bike bearing Registration No.KA-11-K-6398 along with P.W.3, i.e., the said offended Motor Cycle hit to the Motor Cycle of the said M.N.Krishnappa and due to the impact, he fell down and sustained injuries and immediately, he was shifted to the Hospital to take treatment and on 10.08.2010 at 6.15 p.m. itself, the said Ex.P.2 Complaint was lodged and based on the Ex.P.2 Complaint, the Sathnur Police have registered a Criminal case as against her rider of the offended Motor Cycle for the offences punishable Under Section 279 and 337 of IPC.
22. The contents of Ex.P.3 Requisition and Ex.P.4 Further Complaint disclosed that, the said M.N.Krishnappa, who had sustained grievous injury in the said road traffic accident, died on 16.08.2010 at 12.45 a.m. in Mallige Hospital, during the course of treatment.
23. The contents of Ex.P.5 Spot Mahazar, clearly disclosed about the very involvement of the said offended Motor Bike bearing Registration No.KA-42-J-7255 in the said road traffic accident, wherein, the deceased M.N.Krishnappa had sustained injuries and died number of courses of treatment.
24. The contents of Ex.P.6 Inquest Mahazar and Ex.P.7 P.M. Report further clearly disclosed that, due to the 34 M.V.C.NO.6269/2010 (SCCH-7) accidental injuries, M.N.Krishnappa died and the death is due to head injury sustained in the road traffic accident.
25. Ex.P.11 Death Certificate and Ex.P.16 Discharge Summary and Ex.P.17 Lab Report further disclosed about the line of treatment taken by the said deceased in the Hospital and death caused to him is due to the accidental injuries.
26. The contents of Ex.P.8 Charge Sheet further clearly disclosed that, since during the course of investigation, it is found that, due to rash and negligent and high speed manner of riding of the said offending Motor Cycle bearing Registration No.KA-42-J-7255 by the Respondent No.2 on 10.08.2010 at 5.10 p.m., the said road traffic accident was taken place to the deceased M.N.Krishnappa S/o Narasegowda, wherein, he was riding his Motor Cycle bearing Registration No.KA-11-6398 and due to the impact, he had sustained head injuries and grievous injuries on his right side brow, Right Knee and other parts of the body and he took treatment to the said injuries in Kanakapura Hospital and when, he was taking further treatment in Mallige Hospital, on 16.08.2010 at 00-45 a.m., he died and as such, the Investigating Officer has filed a Charge Sheet as against the Respondent No.2, who was a rider and owner of said offending Motor Cycle for the offences punishable Under Section 279, 304 (A) of IPC.
27. The contents of the above said Ex.P.1 to Ex.P.8 are clearly corroborated with the case made out by the Petitioners about the road traffic accident as well as the death caused to 35 M.V.C.NO.6269/2010 (SCCH-7) M.N.Krishnappa, who had sustained grievous injuries in the said road traffic accident.
28. Under the above said facts and circumstances as well as the reasons given, this Tribunal has come to the conclusion that, the Petitioners by adducing acceptable material evidence, both oral and documentary, have established that, the accident has occurred due to rash and negligent driving of the offending Motor Cycle bearing Registration No.KA-42-J-7255 by its rider, i.e., the Respondent No.2 and in the said accident, M.N.Krishnappa S/o N.Narasegowda succumbed to the injuries. Accordingly, I answered Issue No.2 in the Affirmative.
29. ISSUE NO.3 :- While answering Issue No.1, this Tribunal has already come to the conclusion that, the Petitioners No.1 to 4 are the legal representative of deceased M.N.Krishnappa. Admittedly, the Petitioner No.4 is a father of deceased. It is well settled principle of law that, the father cannot be considered as a dependent. But, in the present case as per the cause title of the petition as well as Ex.P.10 Genealogical Tree, the Petitioner No.4, who is a father of the deceased, is aged about 84 years. Admittedly, the Petitioner No.5, who is a mother of the deceased, is expired on 20.10.2010. The same has not been disputed by the Respondents while cross-examining the P.W.1. The deceased is a son of Petitioner No.4. As this Tribunal has already come to the conclusion that, at the time of the accident, the deceased was 53 years old. Under such circumstances, by considering the age of the Petitioner No.4, this Tribunal feels 36 M.V.C.NO.6269/2010 (SCCH-7) that, the Petitioner No.4, who is the father of the deceased, can also be considered as dependent. The Petitioner No.1 is a wife and the Petitioners No. 2 and 3 are the sons of the deceased, which is clear from the cause title of the Petition as well as Ex.P.10 Genealogical Tree. The Petitioner No.3, who was 16 years old, was a minor as on the date of filing of the present petition. Therefore, the Petitioners No.2, who is a major son of the deceased cannot be considered as dependent of the deceased. In view of the said reasons, the Petitioner No.1 being a wife, the Petitioner No.3 being a minor son and the Petitioner No.4 being an aged father, are only the dependents of the said deceased.
30. The P.W.1 has stated that, at the time of the death of her husband, he was aged about 53 years. No authenticated document is produced by the Petitioners to show the actual age of the deceased at the time of accident. Ex.P.6 Inquest and Ex.P.7 Post Mortem Report disclosed that, at the time of accident, the deceased was 50 years old. Ex.P.14 Election Identity Card relating to the disclosed that, the deceased was 36 years old as on 01.01.1994. The date of accident is on 10.08.2010. The P.W.1 has stated in her cross- examination that, at the time of accident, her husband was aged 53 years. From this, it is made crystal clear that, at the time of accident, the deceased was 53 years old. Therefore, the age of the deceased considered as 53 years at the time of accident.
31. The P.W.1 has stated that, prior to the accident, the deceased was very hale and healthy and he was working 37 M.V.C.NO.6269/2010 (SCCH-7) as a Village Accountant in Honnganahalli Circle, Halagur and drawing salary of Rupees 14,091/- per month. The Petitioners have produced Ex.P.9 Salary Certificate relating to the deceased, which disclosed that, in the month of July 2010, the deceased drawing Gross Salary of Rupees 14,091/- and Net Salary of Rupees 10,942/-. The Petitioners have also examined the Deputy Thashildhar as P.W.2, who has stated that, the deceased M.N.Krishnappa S/o N.Narasegowda aged about 53 years was working as a Village Accountant at Honganahalli Circle, Halagur and he was drawing a salary of Rupees 14,091/- per month as on the date of July, 2010. He has clearly identified the said Ex.P.9 Salary Certificate and the signature of his colleague, which is found on Ex.P.9. He has further stated in his cross-examination that, the deceased was working under him as Village Accountant and at the time of accident, the deceased was aged about 52 years and the deceased worked as Village Accountant for a period of 10 years and prior to that, he was working in Sericulture Department on daily wages basis. The P.W.1 in her cross- examination has stated that, prior to the accident, her husband was working as Village Accountant and prior to that, he was working as Assistant in Marketing Department and at the time of accident, her husband was drawing salary of Rupees 14,000/- per month and was Rupees 12,000/- during the days of accident. From the said material evidence of P.W.1 and P.W.2 as well as contents of Ex.P.9 Salary Certificate, it is made crystal clear that, at the time of accident, the deceased was working as a Village Accountant and he was drawing a net salary of Rupees 10,942/- per month. Therefore, based on the said material evidence, it can be considered that, at the 38 M.V.C.NO.6269/2010 (SCCH-7) time of accident, the deceased was working as a Village Accountant by drawing a net salary of Rupees 10,942/- per month.
32. The P.W.1 has stated that, at the time of accident, the deceased was working as a Village Accountant and if he completed his service till 60 years, definitely, he would have been promoted as a Revenue Inspector and further Deputy Tahahasildar and drawing more salary. She has further stated that, the deceased was contributing the salary to the family maintenance and nd due to these accidental injuries, he died and left behind her, her two children and her father-in-law as his deceased legal heirs.
33. As per the decision reported in 2013 ACJ 1403 (Rajesh and Others V/s Rajbir Singh and Others), and as the deceased was aged 53 years at the time of accident, towards future prospects 15% of the income has to be added. So, 15% of Rupees 10,942/- comes to Rupees 1,641-30 (Rs.10,942/- X 15%). Therefore, the income of the deceased comes to Rupees 12,583-30 per month (Rs.10,942/- + 1,641-
30).
34. As this Tribunal has already come to the conclusion that, the Petitioner No.1, who is a wife, the Petitioner No.3, who is a minor son and the Petitioner No.4, who is an aged father of the deceased are only considered as the dependents of the deceased and the Petitioner No.2, who is a major son of the deceased cannot be considered as a dependent of the deceased. Therefore, deceased left behind 3 dependents. As 39 M.V.C.NO.6269/2010 (SCCH-7) per the principles laid down in Sarala Varma's Case, considering the number of the dependents i.e., 3, 1/3 rd of the income has to be deducted towards personal and living expenses of the deceased i.e., Rupees 4,194-43 (1/3rd of Rs. 12,583-30 ). Therefore, loss of dependency comes to Rupees 8,388-90 (Rs.12,583-30 (-) Rs.4,194-43). The multiplier corresponding to the age of the deceased i.e., 53 years is 11 as per Sarala Varma's Case. Therefore, loss of dependency comes to Rupees 11,07,334-80 (Rs.8,388-90 x 12 x 11). Therefore, Petitioners are entitled for Rupees 11,07,334-80, towards loss of dependency due to death of M.N.Krishnappa, which is rounded off Rupees 11,07,335/-.
35. The P.W.1 has stated that, after the post mortem, the dead body was handed over to them and they have performed his funeral and last rites incurred sum of Rupees 60,000/- and also incurred another Rupees 1,50,000/- for his treatment, conveyances and nourishment, etc., and also incurred another sum of Rupees 20,000/- for transportation of dead body from Bangalore to their native place. Ex.P.18 Medical Bills 31 in numbers, which are amounting of Rupees 1.21.404-62 and Ex.P.19 Medical Prescriptions 22 in numbers, the Petitioners have not produced any material document, to consider the said extent of amount spent by them.
36. As per the principles laid down in the decision reported in 2013 ACJ 1403 cited above, loss of consortium to the Petitioner No.1, who is a wife of the deceased should be Rupees 1,00,000/- and funeral expenses would be Rupees 25,000/-.
40 M.V.C.NO.6269/2010(SCCH-7)
37. The P.W.1 has stated that, due to sudden and tragic death of her husband, herself and her family members are lost the beloved husband, father and son respectively and sole earning member of the family and hence, they are put to great hardship and mental agony and it is very difficult to come out from this shock throughout their life.
38. As this Tribunal has already come to the conclusion that, the deceased left the Petitioners No.1 to 4 as his legal representatives. Considering the facts and circumstances of the case and relationship of the Petitioners with the deceased, towards loss of love and affection of Petitioners, Rupees 20,000/- is awarded.
39. As this Tribunal has already observed that, the Petitioners have produced Ex.P.18 Medical Bills 31 in numbers amounting of Rupees 1,21,404-62 and Ex.P.19 Medical Prescriptions 22 in numbers. This Tribunal has already observed that, though the accident was taken place on 10.08.2010, the deceased died on 16.08.2010 in Mallige Hospital during the course of treatment. In the said road traffic accident, the deceased had sustained fatal injuries. Hence, the possibility of spending the said amount of Rupees 1,21,404-62 by the Petitioners for the treatment of the deceased cannot be doubted. Hence, the Petitioners are entitled for the said amount of Rupees 1,21,404-62 towards actual medical expenses, which is rounded off Rupees 1,21,410/-.
41 M.V.C.NO.6269/2010(SCCH-7)
40. Rupees 5,000/- is awarded towards expenses of transportation of dead body and Rupees 20,000/- is awarded towards loss of estate.
41. The P.W.1 has stated that, at the time of death of her husband, he was constructing one new house measuring an extent of 57 X 25 with RCC roof and they have availed housing loan of Rupees 4,00,000/- from the Karnataka Bank, Halagur Branch and they have undertake to agreed monthly installment of Rupees 7,350/- per month, but, due to sudden and tragic death of her husband, that incompleted house was retained as it is, where is basis due to financial problem and now, they have to pay regular monthly installment of Rupees 7,350/- as agreed upon with the Bank. Except the oral version of P.W.1, the Petitioners have not produced any material documents to consider the same. The same has also been clearly admitted by the P.W.1 in her cross-examination. Further, the construction of a house is a asset and according to the Petitioners, the deceased was constructing the said house by obtaining a loan from the Bank and in view of the death of the deceased, the Petitioners, as his legal heirs can very well continue the construction work by releasing the loan amount and they have to repay the said loan as his legal heirs as in view of the death of the said deceased, they succeeded the said property and no loss caused to them. Therefore, the evidence of P.W.1 is discarded.
42. In this way, the Petitioners are entitled for the following amount of compensation:-
Sl.No Compensation heads Compensation 42 M.V.C.NO.6269/2010 (SCCH-7) . amount
1. Loss of Dependency Rs. 11,07,335-00
2. Medical expenses Rs. 1,21,410-00
3. Loss of Consortium Rs. 1,00,000-00
4. Funeral Expenses Rs. 25,000-00
5. Expenses of transportation Rs. 5,000-00 of dead body
6. Loss of Love and Affection Rs. 20,000-00
7. Loss of Estate Rs. 20,000-00 TOTAL Rs. 13,98,745-00
43. In all, the Petitioners are entitled for total compensation of Rupees 13,98,745-00 with interest at the rate of 6% per annum on the above said sum.
44. While answering Issue No.2, this Tribunal has already come to the conclusion that, the offending Motor Cycle bearing Registration No.KA-42-J-7255 as well as its rider, i.e., the Respondent No.2, who was also the owner of the said offending Motor Cycle, are very much involved in the road traffic accident, wherein, Sri M.N.Krishnappa S/o N.Narasegowda succumbed to the injuries. The R.W.3, who is the Respondent No.3 has clearly stated in his evidence that, as on the date of accident, his Motor Bike bearing No.KA-42-J- 7255 was taken policy from the Respondent No.1, vide Policy No.3507013109620 valid from 10.02.2010 to 09.02.2011 and the accident took place on 10.08.2010 and hence, the policy was in force at the time of accident. He has further clearly stated in his cross-examination that, he was the owner of the Motor Bike bearing Registration No.KA-42-J-7255 as on the date of accident. The R.W.1, who is the Administrative Officer of the Respondent No.1 has clearly admitted in his cross- examination that, their Company has issued policy as per 43 M.V.C.NO.6269/2010 (SCCH-7) Ex.R.1 in the name of the Respondent No.2 and as per the Police records, it has mentioned that, the Respondent No.2 being the owner of the Motor Cycle bearing No.KA-42-J-7255 was riding the said Motor Cycle at the time of accident. The Respondent No.1 has also produced the copy of Insurance Policy, which is marked at Ex.R.1. It is clear from the contents of Ex.R.1 Insurance Policy that, the Respondent No.2 is an owner and the Respondent No.1 is an insurer of the said offending Motor Cycle and as on the date of accident, the Insurance Policy of the said Motor Cycle is valid. From this, it appears that, the Respondent No.2 is an owner and the Respondent No.1 is an insurer of the said offending Motor Cycle. No allegations leveled as against the rider of the said offending vehicle, i.e., the Respondent No.2, by the Investigating Officer in Ex.P.8 Charge Sheet that, he was not having a valid and effective driving licence to drive the said offending Motor Cycle as on the date of the accident. Under such circumstances, both the Respondents No.1 and 2 are jointly and severally liable to pay the above said compensation with interest to the Petitioners. Since, the Respondent No.1 is an insurer, he shall indemnify the Respondent No.2. Admittedly, the Petitioner No.5, who is the mother of the deceased, is expired after filing of this petition. Ex.P.13 Death Certificate relating to the Petitioner No.5 disclosed that, she died on 20.10.2010. The same has not been disputed by the Respondents. Hence, the Petitioners No.1 to 4 are only entitled for the said compensation and interest from the Respondent No.1. In view of the said reasons, the petition filed by the Petitioner No.5 is liable to be rejected as abated as against the Respondents. Therefore, the 44 M.V.C.NO.6269/2010 (SCCH-7) principles enunciated in the decisions cited by the Learned Counsel appearing for the Petitioners are aptly applicable to the present facts and circumstances of the case on hand. Hence, Issue No.3 is answered accordingly.
45. ISSUE NO.4 :- For the aforesaid reasons, I proceed to pass the following, ORDER The petition filed by the Petitioners No. 1 to 4 under Section 166 of the Motor Vehicles Act, 1989, is hereby partly allowed with costs.
The petition filed by the deceased Petitioner No.5 under Section 166 of the Motor Vehicles Act, 1989, is hereby rejected as abated.
The petitioners No.1 to 4 are entitled for compensation of Rupees 13,98,745/- with interest at the rate of 6% p.a. from the date of filing of the petition till the date of payment, from the Respondent No.1.
The Respondent No.1 shall deposit the said compensation and interest in this Tribunal, within one month from the date of this order.
The Petitioners No.1 to 4 shall share the compensation amount in the ratio of 70:10:10:10.
In the event of deposit of compensation and interest, 50% shares relating to the Petitioners No.1, 2 and 4 shall be released in their 45 M.V.C.NO.6269/2010 (SCCH-7) respective names through account payee cheques, on proper identification.
Remaining 50% shares relating to the Petitioners No.1, 2 and 4 shall be kept in FD in their respective names, in any nationalized bank of their choice, for a period of 3 years.
The entire share of Petitioner No.3 shall be kept in FD in his name, till he attains the age of majority.
Advocate's fee is fixed at Rupees 1,000/-.
Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by her, corrected and then pronounced by me in the open Court on this the 24th day of January, 2015.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. LIST OF WITNESSES EXAMINED BY THE PETITIONERS :
P.W.1 : Smt. Gowramma P.W.2 : Sri. Thimmappa P.W.3 : Sri. Ramesh P.W.4 : Sri. Abhishek P.W.5 : Sri.R.Manjunath
2. LIST OF DOCUMENTS MARKDED BY THE PETITIONERS:
46 M.V.C.NO.6269/2010(SCCH-7) Ex.P.1 : C.C. of FIR Ex.P.2 : C.C. of Complaint Ex.P.3 : C.C. of Requisition Ex.P.4 : C.C. of another Complaint Ex.P.5 : C.C. of Mahazar Ex.P.6 : C.C. of Inquest Mahazar Ex.P.7 : C.C. of P.M. Report Ex.P.8 : CC. of Charge sheet Ex.P.9 : Salary Certificate Ex.P.10 : Genealogy Tree Ex.P.11 : Survival Certificate Ex.P.12 &13 : Death Certificates (2 in Nos.) Ex.P.14 & 15 : Notarized copy of Election ID Card (2 in Nos.) Ex.P.16 : Discharge Summary Ex.P.17 : Lab Report Ex.P.18 : Medical Bills (31 in Nos.) Ex.P.19 : Medical Prescriptions (22 in Nos.)
3. LIST OF WITNESSES EXAMINED BY THE RESPONDENTS:
R.W.1 : Sri. G. Shivakumar R.W.2 : Sri. Narayanaswamy R.W.3 : Sri.M.R.Doreswamy
4. LIST OF DOCUMENTS MARKED BY THE RESPONDENTS :
Ex.R.1 : Copy of Policy
Ex.R.2 : C.C. of MLC Extract dated 10.8.10
Ex.R.3 : C.C. of MLC Extract
Ex.R.4 : Copy of letter issued by
Government Hospital, Kanakapura
Ex.R.5 : Letter written by Sri.Abhishek
Ex.R.6 : MLC Report of NIMHANS Hospital
Of M.N.Krishnappa
Ex.R.7 : MLC Report of NIMHANS Hospital
Of Abhishek
Ex.R.8 : MLC Report of Ramanagar Hospital
Of Abhishek
(INDIRA MAILSWAMY CHETTIYAR)
47 M.V.C.NO.6269/2010
(SCCH-7)
IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
SCCH-7 AWARD BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA: BANGALORE CITY M.V.C.No.6269/2010
1. Gowramma W/o Late MN.Krishnappa, Aged about 38 years.
6. Darshan.K.Gowda S/o Late M.N.Krishnappa, Aged about 20 years.
7. Dhanusha K.Gowda S/o Late M.N.Krishnappa, Aged about 85 years.
8. N.Narasegowda S/o Narasegowda, Aged about 85 years.
9. Shanthamma W/o N.Narasegowda, Aged about 75 years. (Died) The petitioner No.3 is Minor represented by natural guardian mother, namely, Gowramma 1st petitioner.
All are residing at Halagur Post and Hobli, 48 M.V.C.NO.6269/2010 (SCCH-7) Karibedi, Malavalli Tlaluk, .... PETITIONERS Mandya District.
(By Smt. Ashakumari, Adv.,) V/s
1. The Manager National Insurance Company Ltd., Regional Office, D-0-3, No.15.17.19, 1st Floor, Lakshmi Complex, St.Marks Road, Bangalore-1.
(Insurer of Motor Bike bearing No.KA-42-J-7255)
2. M.R.Doreswamy S/o Ramaiah, No.58, M.Madhapura, Ramanagara Tlaluk and District. ...RESPONDENTS (R.C. Owner of Motor Bike Bearing No.KA-42-J-7255) (R1- By Sri. Sunil S. Narayan, Adv.,) (R2- By Sri.Devaraju B.K. Adv.,) WHEREAS, this petition filed on by the petitioner/s above named U/s.166 of the M.V.Act praying for the compensation of Rs. (Rupees ) for the injuries sustained by the petitioner/ Death of in a Motor Accident by Vehicle No. WHEREAS, this claim petition coming up before Indira Mailswamy Chettiyar, IX Addl.Small Causes Judge & XXXIV ACMM. Judge, Member, Bangalore, in the presence of 49 M.V.C.NO.6269/2010 (SCCH-7) Sri./Smt. Advocate for petitioner/s and of Sri./Smt. Advocate for respondent.
ORDER The petition filed by the Petitioners No. 1 to 4 under Section 166 of the Motor Vehicles Act, 1989, is hereby partly allowed with costs.
The petition filed by the deceased Petitioner No.5 under Section 166 of the Motor Vehicles Act, 1989, is hereby rejected as abated.
The petitioners No.1 to 4 are entitled for compensation of Rupees 13,98,745/- with interest at the rate of 6% p.a. from the date of filing of the petition till the date of payment, from the Respondent No.1.
The Respondent No.1 shall deposit the said compensation and interest in this Tribunal, within one month from the date of this order.
The Petitioners No.1 to 4 shall share the compensation amount in the ratio of 70:10:10:10.
In the event of deposit of compensation and interest, 50% shares relating to the Petitioners No.1, 2 and 4 shall be released in their respective names through account payee cheques, on proper identification.
50 M.V.C.NO.6269/2010(SCCH-7) Remaining 50% shares relating to the Petitioners No.1, 2 and 4 shall be kept in FD in their respective names, in any nationalized bank of their choice, for a period of 3 years.
The entire share of Petitioner No.3 shall be kept in FD in his name, till he attains the age of majority.
Advocate's fee is fixed at Rupees 1,000/-.
Draw award accordingly.
Given under my hand and seal of the Court this day
of 2014
MEMBER
MOTOR ACCIDENT CLAIMS TRIBUNAL
METROPOLITAN AREA: BANGALORE.
By the
Petitioner/s Respondent/s
No.1 No.2
Court fee paid on
Petition
Court fee paid on Power
Court fee paid on I.A.,
Process
Pleaders Fee
Total Rs.
Decree drafted Scrutinized by MEMBER, MACT,
METROPOLITAN AREA: B'LORE
Decree Clerk SHERISTEDAR
51 M.V.C.NO.6269/2010
(SCCH-7)
52 M.V.C.NO.6269/2010
(SCCH-7)
24.01.2015.
Judgment pronounced in open Court
(vide separate Order)
The petition filed by the Petitioners No. 1
to 4 under Section 166 of the Motor Vehicles Act, 1989, is hereby partly allowed with costs.
The petition filed by the deceased Petitioner No.5 under Section 166 of the Motor Vehicles Act, 1989, is hereby rejected as abated.
The petitioners No.1 to 4 are entitled for compensation of Rupees 13,98,745/- with interest at the rate of 6% p.a. from the date of filing of the petition till the date of payment, from the Respondent No.1.
The Respondent No.1 shall deposit the said compensation and interest in this Tribunal, within one month from the date of this order.
The Petitioners No.1 to 4 shall share the compensation amount in the ratio of 70:10:10:10.
In the event of deposit of compensation and interest, 50% shares relating to the Petitioners No.1, 2 and 4 shall be released in 53 M.V.C.NO.6269/2010 (SCCH-7) their respective names through account payee cheques, on proper identification.
Remaining 50% shares relating to the Petitioners No.1, 2 and 4 shall be kept in FD in their respective names, in any nationalized bank of their choice, for a period of 3 years.
The entire share of Petitioner No.3 shall be kept in FD in his name, till he attains the age of majority.
Advocate's fee is fixed at Rupees 1,000/-.
Draw award accordingly.
(INDIRA MAILSWAMY CHETTIYAR) IX Addl.Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
54 M.V.C.NO.6269/2010(SCCH-7)