Bangalore District Court
No.1 Has Lost The Love And Affection Of ... vs No.2 Is The R.C. Owner Of The Offending ... on 26 September, 2015
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 26th day of September, 2015.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com., LL.B.(Spl.),L.L.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C.No.1841/2014
1. Smt.Saroja, ..... PETITIONERS
W/o Late Krishna. K.,
Aged about 50 years.
2. Manjunath. K.,
S/o Late Krishna.K.,
Aged about 27 years.
Both are residing at Maruthi Complex,
Thindlu Main Road,
New Indian Oil Petrol Bunk,
Dhanalakshmi Layout,
Bangalore-560 097.
(By Sri. G.S. Sudhakara Reddy, Adv.,)
V/s
1. The Furture General India Insurance
Co. Ltd., .....RESPONDENTS
Pasadena No. 18/1, (old No.125/1),
3rd Floor, Ashok Pillar Road,
1st Block, Jayanagar,
Bangalore-560 011.
(Policy and Certificate No.2013-V275-
4146-FPV, valid from 12.12.2013 to
11.12.2014)
2 M.V.C.NO.1841/2014
(SCCH-7)
2. Louis Associates,
No.6, A Block,
B Binny Crescent Apts, No.16,
Benson Cross Road,
Benson Town,
Bangalore-560 0046.
(Owner of the Car bearing Reg.No.KA-04-
MM-8904)
(R-1 -By Sri.V.Shrihari Naidu, Adv.,)
(R-2 - By Sri. K.S.Ganesha, Adv.,)
JUDGMENT
The Petitioners No.1 and 2 have filed the present petition as against the Respondents No.1 and 2 under Section 166 of the Motor Vehicles Act, 1989 praying to award compensation of Rupees 90,50,000/- with interest and costs in respect of death of Sri. Krishna. K. S/o Late Kempaiah.
2. The brief averments of the Petitioners' case are as follows;
a) On 08.03.2014 at about 12.45 p.m., the deceased Krishna. K. was riding his Motor Cycle bearing Registration No.KA-04-Y-1499 from Sanjay Nagar to Hebbal on the left side of the road by following all the traffic norms and by the time, he reached CBI Bus Stand, B.B. Road, Bangalore and the driver of the Car bearing Registration No.KA-04-MM-8904 drove the said Car in a rash, negligent and high speed and dashed against the 3 M.V.C.NO.1841/2014 (SCCH-7) said Motor Cycle. Due to the said impact, the deceased Krishna. K., fell down along with his Motor Cycle and sustained grievous injuries all over the body and he was immediately shifted to Columbia Asia Hospital, Hebbal, in an Ambulance, wherein, a sum of Rupees 25,000/- was incurred towards the medical expenses and Ambulance expenses.
b) Thereafter, on the same day, the said Krishna.K. was shifted to Columbia Asia Hospital, Malleshwaram for higher treatment and the deceased Krishna K., has taken treatment as an inpatient in the said Hospital from 08.03.2014 to 13.03.2014, wherein, CT scan was conducted and they have incurred total expenses of Rupees 2,57,193/- in the said Hospital. However, inspite of the best treatment given, the said Krishna. K., succumbed to the injuries at Columbia Asia Hospital, Malleshwaram. M.S.Ramaiah Hospital, wherein, post-mortem was conducted and the dead body was handed over them.
c) They have performed the last rituals of the deceased Krishna. K. by spending more than Rupees 1,00,000/-.
d) The Petitioner No.1 is a wife and the Petitioner No.2 is a son of Krishna. K. Prior to the accident, the said Krishna. K. was hale and healthy and he was working as a Driver Grade II with BESCOM and drawing a monthly salary of Rupees 74,054/- and he was contributing his entire income to the family.
4 M.V.C.NO.1841/2014(SCCH-7)
e) They were entirely depending on the deceased. The Petitioner No.1 has lost the love and affection of her husband and the Petitioner No.2 has lost the love and affection of his father. The deceased died without performing the marriage of the Petitioner No.2.
f) They prays to award compensation towards loss of dependency, loss of love and affection, loss of consortium, loss of estate, towards medical expenses incurred with interest and further loss of income other heads, as this Hon'ble Court deems fit.
g) The said accident took place because of the negligence of the driver of the said Car bearing Registration No.KA-04-MM- 8904 and in this connection, the jurisdictional R.T. Nagar Police have registered a case in their Crime No.27/2014, punishable under 279.337 and 304(A) of IPC.
h) The Respondent No.1, is the insurer and the Respondent No.2 is the R.C. Owner of the offending vehicle and as on the date of the accident, the insurance was in force and hence, the Respondents are jointly and severally liable to pay the compensation to them on the heads of pain and suffering, shock and mental agony, medical expenses and other expenses. Hence, this Petition.
3. In response to the notice, the Respondent No.1 has appeared before this Tribunal through its Learned Counsel. But, 5 M.V.C.NO.1841/2014 (SCCH-7) initially, inspite of giving sufficient opportunities, the Respondent No.1 had not filed the written statement. Later, as per the Order dated 10.12.2014 passed on I.A.No.I, the written statement filed by the Respondent No.1 is taken on file.
4. In response to the notice, the Respondent No.2 has appeared before this Tribunal through its Learned Counsel and 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 petition is not maintainable either in law or on facts of the case.
b) The petition is bad for non-joinder of necessary and proper parties for the adjudication of the petition and the rider of the Motor Cycle bearing Registration No.KA-04-Y-1499 did not had a valid and effective driving licence to ride the same on the date of the accident.
c) At the out-set, it is relevant to mention that, the deceased Sri Krishna, who was riding the Motor Cycle bearing Registration No.KA-04-Y-1499 without having a valid driving licence and without wearing helmet, in a rash and negligent manner with high speed and in the process of over taking the other vehicles came extreme right side of the road, lost control over the vehicle and dashed to rear portion of the Car bearing 6 M.V.C.NO.1841/2014 (SCCH-7) Registration No.KA-04-MM-8904 and fell down on the road and sustained injuries and succumbed to the said injuries. It is pertinent to note that, the IMV Report issued by the R.T.O. Inspector clearly mentioned that, the front portion of the Motor Cycle, such as, front mudguard damaged, front head light broken, front right side crash guard bent, battery box broken, front right foot stand bent and right hand brake lever broken, whereas, rear left side door dented and rear left side body scratched toe the Car bearing Registration No.KA-04-MM-8904. Even the Spot Sketch prepared by the Police Authorities clearly shows that, the Motor Cycle was moving extreme right side of the road. Hence, it is clear from the sequence of events that, the accident occurred solely on the fault of the rider of the Motor Cycle/deceased. The jurisdictional Police instead of filing the charge sheet against the deceased, the rider of the Motor Cycle, have falsely/wrongly implicated the driver of the Car in the charge sheet and the obvious intention is to fasten the liability against the Insurance Company by taking advantage of the policy of insurance. Hence, there cannot be any liability against it as the said Car bearing Registration No.KA-04-MM-8904 was not at all responsible for the cause of the accident.
d) It admits that, they have issued a policy of insurance in respect of the Car bearing Registration No.KA-04-MM-8904 in question in favour of the 2nd Respondent insured and the same was valid for the period from 12.12.2013 to 11.12.2014. However, the liability of it to indemnify the insured in respect of the said 7 M.V.C.NO.1841/2014 (SCCH-7) policy is as per the statue, terms, limitations and conditions of the policy and compliance of Section 64 VB of the Insurance Act. The insured 2nd Respondent has to prove before this Hon'ble Court that, the vehicular documents, like, R.C. F.C, Tax, etc., in respect of the said Car were valid and current on the date of the accident and the person, who was driving the said Car had a valid and effective driving licence to drive the same on the date of the accident. The owner of the vehicle has willfully entrusted the vehicle to a person, who did not had a valid and effective driving licence to drive the Car on the date of the accident. Hence, there is a breach and violations of the terms and conditions of the policy and as such, the claim petition is liable to be dismissed as against it. It seeks protection under Section 147 and 149 of the Motor Vehicles Act.
e) The total compensation amount of Rupees 90,50,000/- claimed in the claim petition is an excessive, exorbitant and the same is as against the principles of computation of damages. This claim is also bad for non-compliance of Section 158(6) and 134(c) of the M.V. Act.
f) In the event of the 2nd Respondent failing to contest the claim petition effectively, then, in such an event, it may be permitted to contest the claim petition on all grounds available to 2nd Respondent under Section 170 of the Motor Vehicles Act.
g) In case, if the Petitioner is entitled to any compensation, then, the interest on such compensation shall be 8 M.V.C.NO.1841/2014 (SCCH-7) 6% p.a., in view of the decision of the Hon'ble Court of Karnataka. Hence, prayed to dismiss the claim petition with costs.
6. The Respondent No.2 inter-alia denying the entire case of the Petitioners, has further contended as follows;
a) It admits the date and time of the accident, accident and the deceased sustained injuries to his body and succumbed to the injuries later.
b) At the relevant point of time, none of these claimants were present at the place of incident. On the fateful day, the deceased was not at all wearing helmet and on the contrary, by throwing all the traffic rules and regulations to the wind, he was riding his Motor Cycle rashly and negligently and instead of overtaking from the right side, tried to over take it from the left side and in that process, he hit the middle portion of the Car and fell down.
c) Immediately stopped the Car and after getting down from the same, he noticed that, due to the accident, the middle and rear end portion of the left side of his Car was damaged and the rider of the Motor Cycle was sustained injuries to his head and other parts of the body. Immediately after informing the jurisdictional Police, who were on the spot, he took the deceased in his vehicle and got him admitted to the Colombia Asia Hospital for treatment and thereafter, he came back to the R.T. Nagar 9 M.V.C.NO.1841/2014 (SCCH-7) Traffic Police Station and parked his Car for the purpose of inspection.
d) Even though, he asked the R.T. Nagar Traffic Police to register the case as against the rider of the Motor Cycle for riding the Motor Cycle rashly and negligently, they managed to sent him without taking any complaint from his side on the pretext that, he can lodge the same at the time of releasing the vehicle to his custody and further directed him to come after two days. Subsequently on 10.03.2014 at about 11.00 a.m., when he went to the Police Station, he came to know that, the 2nd Petitioner has lodged a false complaint as against him and thereafter, he lodged the complaint against the rider of the Motor Cycle by narrating the true version of the incident, that took place on 08.03.2014.
e) The deceased was shifted to Columbia Asia Hospital by him in his Car and not by an Ambulance as averred in the claim petition.
f) Absolutely there was negligence on the part of him and whatever happened was happened solely at the instance of the deceased only and at no stretch of imagination, it can be said that, he even remotely was responsible for the unfortunate accident and so far as registration of case under the various provisions of IPC against it is concerned, it may be true, as he has not yet received summons from the jurisdictional Magistrate's Court to answer the charge leveled as against him.
10 M.V.C.NO.1841/2014(SCCH-7)
g) At the time of accident, it was holding valid driving licence and his Car was insured with the 1st Respondent and the same was in currency as on the date of the accident. In case, this Hon'ble Tribunal comes to the conclusion that, the claimants are entitled for compensation, the same has to be made good by the 1st Respondent only. Hence, prayed to dismiss the claim petition.
7. Based on the above said pleadings, I have framed the following Issues;
ISSUES
1. Whether the Petitioners prove that, they are the dependents and legal representatives of deceased KRISHNA. K.?
2. Whether the Petitioners prove that, the accident occurred due to rash and negligent driving of the Car bearing Registration No.KA-04-MM-
8904 by its driver and Sri.Krishna.
K. died due to the injuries sustained in the accident?
3. Whether the Petitioners are entitled for compensation? If so, how much and from whom?
4. What Order?
8. In order to prove their case, the Petitioners have examined the Petitioner No.1 as P.W.1 and have also examined one witness as P.W.2 by filing the affidavits as their examination-
11 M.V.C.NO.1841/2014(SCCH-7) in-chief and have placed reliance upon Ex.P.1 to Ex.P.27. On the other hand, the Respondent No.1 has examined its Senior Executive as R.W.1 by filing an affidavit as his examination-in- chief and has placed reliance upon Ex.R.1 to Ex.R.4.
9. Heard the arguments. The Learned Counsel appearing for the Petitioners has filed written arguments.
10. In support of the submission, the Learned Counsel appearing for the Petitioner Sri. G.S. Sudhakara Reddy has placed reliance upon the decision reported in, 2014 SAR (Civil) 1064 (Saraladevi and Others V/s Divisional Manager, M/s Royal Sundaram Alliance Insurance Co. Ltd., and Another), wherein, it is observed that, Motor Vehicles Act 1988 - Secs. 166, 168 - Claim for compensation arising of motor vehicles accident resulting in death of deceased - Claimants being the widow, two daughters and bedridden aged mother of the deceased - Claims for compensation two daughters and bedridden aged mother of the deceased - claiming compensation of Rupees 45,00,000/- - Monthly salary/income of deceased taken by the Tribunal at Rupees 50,809/- as per salary certificate - Annual income thus fixed at Rupees 6,09,708/- -
Deceased aged 58 years at the time of accident - Taking the multiplier as 8 and total loss of income of deceased at Rupees 48,77,664/- and deducting 1/4th i.e., 12,19,416/- of the said amount towards personal expenses of the deceased on account of dependents of the deceased being 12 M.V.C.NO.1841/2014 (SCCH-7) four in number - Loss of dependency of the claimants calculated at Rupees 36,58,248/-
- For funeral expenses a sum of Rupees 5,000/- awarded and for loss of estate Rupees 10,000/- and for loss of consortium to the widow a sum of Rupees 10,000 and loss of love and affection a sum of Rupees 50,000/- granted to claimants - Award of a total sum of Rupees 37,33,248/- with interest at the rate of 7.5% from date of petition, made by the M.A.C.T - On appeal by the Insurance Company, High Court reduced the compensation amount to Rupees 15,84,750/- under the following heads:
Loss of Dependency Rs. 15,09,750/-
Funeral expenses Rs. 5,000/-
Loss of Estate Rs. 10,000/-
Loss of Consortium Rs. 10,000/-
Loss of love and affection Rs. 50,000/-
Total Rs. 15,84,750/-
On appeal by the claimants, the
Supreme Court, by setting aside the
judgment of the High Court, affirmed the award of the Tribunal and restored the same and the claimants held entitled to compensation under the following heads with interest @ 7.5 from the date of filing of application till date of payment.
Loss of Dependency Rs. 36,58,248/-
Funeral expenses Rs. 5,000/-
Loss of love and affection Rs. 50,000/-
13 M.V.C.NO.1841/2014
(SCCH-7)
Loss of Estate Rs. 10,000/-
Loss of Consortium Rs. 10,000/-
Total Rs. 37,33,248/-
11. In support of the submission, the Learned Counsel appearing for the Respondent No.1 Sri. V.Shrihari Naidu has placed reliance upon the decision reported in, M.F.A.No.2863/2004 C/w M.F.A.No.4027/2004 (M.V) (N.Vijaya Saraswathi and Others V/s B.Shiva Swamy and Another and New India Assurance Co. Ltd., V/s N.Vijaya Saraswathi and Others), wherein, it is observed that,
10. We have given out anxious consideration to the submission made on both sides. It has to be stated at the outset that, in a fatal accident action, the accepted measure of damages awarded to the dependents is the pecuniary loss suffered by them as a result of the death. That is to say, how much has the widow and family lost by the death of the deceased. In the instant case, it is not in dispute that, the deceased Ramadasappa, at the time of his death, in the accident, was aged about 58 years and was employed in the office of the KPTCL at Bangalore. In the normal course, he was to retire on 31.10.2001. As on the date of his death in the accident, the deceased was drawing a salary of Rupees 20,836/- p.m., Since he was to retire within five months thereafter, obviously, the same could not have been the earnings of the deceased and he could have been entitled only to a pension, which would be half of his salary. In the fact situation, the dependents of the 14 M.V.C.NO.1841/2014 (SCCH-7) deceased have lost the salary, which the deceased could have spent upon them till his retirement and thereafter, what they could have lost is the pension payable to the deceased. It simple injuries not in dispute that, the deceased besides paying the Profession Tax was also an income tax assessee. While he was in service, a sum of Rupees 2,700/- was being deducted towards the payment of income tax and profession Tax. This amount could not have been available to the dependents of the deceased and hence, it has to be deducted from the total salary earned by the deceased at the time of his death. Therefore, deducting a sum of Rupees 2,700/- out of the salary of the deceased in a sum of Rupees 20,836/-, it would come to Rupees 18,136/-. In the absence of any evidence with regard to the style of living of the deceased, it is reasonable to deduct 1/3 out of it towards the personal living expenses of the deceased. Deducting 1/3 out of Rupees 18,136/-, it would come to Rupees 12,090/- p.m. This is the amount, which the deceased could have made available to his dependents till his retirement. Since the deceased was to retire after five months thereafter, the above said amount is to be multiplied with multiplier of 5 months, which would come to Rupees 60,450/-. Learned counsel for the claimants is right in saying that, having regard to the age of the deceased, the appropriate multiplier would be 10 and not 8 as has been taken by the MACT. Therefore, in the instant case, we have to take the multiplier of 10 to compute the loss of dependency to the dependents on account of the death of the deceased. We have already stated that, for the first 5 months, the family has been 15 M.V.C.NO.1841/2014 (SCCH-7) deprived of the amount in a sum of Rupees 60,450/- on account of the premature death of the deceased in the accident. After his retirement, the deceased would have received the pension amount of Rupees 9,068/- (50% of Rupees 18,136/-). Out of this, we have to deduct again 1/3 towards the personal living expenses of the deceased and the balance would be available for being spent on the family of the deceased.
Deducting 1/3 from Rupees 9,068/-, it would come to Rupees 6,046/-. This would have been the amount, which the deceased could have made available to his family after his retirement. The said amount has to be multiplied with the multiplier of 115 months to calculate the loss of dependency to the deceased after the retirement of the deceased and the same would come to Rupees 6,95,290/-. Therefore, the total loss of dependency to the claimants on account of the premature death of the deceased in the motor accident would come to Rupees 7,55,740/- (6,95,290 + 60,450/-). To this, we shall add a sum of Rupees 10,000/-
towards funeral expenses etc., and a further sum of Rupees 10,000/- towards the loss of love and affection. It would bring the total to Rupees 7,85,740/-. The MACT has awarded claim petition till the date of payment. The impugned Judgment and Award made by the MACT stands modified only to the extent as indicated above and in all other respects, it remains unaltered.
12. My answers to the above said Issues are as follows;
16 M.V.C.NO.1841/2014
(SCCH-7)
Issue No.1 : Partly in the Affirmative,
Issue No.2 : In the Affirmative,
Issue No.3 : Partly in the Affirmative,
The Petitioners are
entitled for compensation
of Rupees 36,88,668/-
with interest at the rate of
6% p.a., from the date of
the petition till the date of
payment, from the
Respondent No.1
Issue No.4 : As per the final Order,
for the following;
REASONS
13. ISSUE NO.1 :- The P.W.1, who is the Petitioner No.1 has stated in her examination-in-chief that, the Petitioner No.2 is her son and they have filed the claim petition as against the Respondents seeking compensation towards death of her husband Krishna. K., who died in a road traffic accident, caused on 08.03.2014. She has further stated that, she is a wife of the deceased Krishna. K and the Petitioner No.2 is their son. The Petitioners have produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.5 Police Intimation, Ex.P.6 Requisition, Ex.P.7 Inquest, Ex.P.8 Post- mortem Report and Ex.P.13 Bank Pass Book relating to deceased Sri. Krishna.K. On perusal of the said oral version of P.W.1 and the contents of the material documents, it clearly goes to show that, the Petitioner No.1 is a wife and the Petitioner No.2 is a 17 M.V.C.NO.1841/2014 (SCCH-7) major son of the deceased Sri.Krishna. K., who died on 13.03.2014 at 9.50 p.m., in Columbia Asia Hospital during the course of treatment to the accidental injuries, which was taken place on 08.03.2014 at 12.45 p.m., near C.B.I. Bus Stand on Service Road. From this, it is made crystal clear that, the Petitioner No.1 being a wife and the Petitioner No.2 being a major son, are the legal representatives of the said deceased Sri.Krishna. K. But, based on the same, it cannot be said that, both the Petitioners No.1 and 2 were the dependents of the said deceased, as, admittedly, the Petitioner No.2 is a major son at the time of accident and as such, he cannot be considered as a dependent of the deceased. Further, the P.W.1 in her cross-examination has clearly stated that, his son is unmarried and he is residing along with her and her son is aged 22 years old and now, he is studying B.E. Therefore, the Petitioner No.1 being a wife of the deceased can only be considered as a dependent upon the deceased Krishna. K. S/o Late Kempaiah. Accordingly, without much discussion, I answered Issue No.1 Partly in the Affirmative.
14. ISSUE NO.2 :- The P.W.1 has stated that, on 08.03.2014 at about 12.45 p.m., her deceased husband Krishna. K. was riding his Motor Cycle bearing Registration No.KA-04-Y- 1499 from Sanjay Nagar to Hebbal on the left side of the road by following all the traffic norms and by the time, he reached CBI Bus Stand, B.B. Road, Bangalore, at that time, the driver of the Car bearing Registration No.KA-04-MM-8904 drove the said Car in a rash and negligent and high speed and dashed against the said 18 M.V.C.NO.1841/2014 (SCCH-7) Motor Cycle and due to the said impact, her deceased husband fell down along with his Motor Cycle and sustained grievous injuries all over the body. She has further stated that, immediately her husband was shifted to Columbia Asia Hospital, Hebbal, in an Ambulance and thereafter, on the same day, her deceased husband was shifted to Columbia Asia Hospital, Malleshwaram for higher treatment and her husband has taken treatment as an inpatient in the said Hospital from 08.03.2014 to 13.03.2014, wherein, CT scan was conducted and however, in spite of the best treatment given, her deceased husband Krishna. K. succumbed to the injuries at Columbia Asia Hospital, Malleshwaram on 13.03.2014 and thereafter, the dead body was shifted to M.S. Ramaiah Hospital, wherein, post-mortem was conducted and the dead body was handed over them. She has further stated that, the said accident took place because of the negligence of the driver of the said Car bearing Registration No.KA-04-MM-8904 and in this connection, the jurisdictional R.T. Nagar Police have registered a case in their Crime No.27/2014, punishable under 279.337 and 304(A) of IPC.
15. The R.W.1, who is the Senior Executive of the Respondent No.1 has stated in his examination-in-chief that, the deceased Sri. Krishna, who was riding the Motor Cycle bearing Registration No.KA-04-Y-1499 without having a valid driving licence and without wearing helmet, in a rash and negligent manner with high speed and in the process of over taking the other vehicles, came extreme right side of the road, lost control 19 M.V.C.NO.1841/2014 (SCCH-7) over the vehicle and dashed to rear portion of the Car bearing Registration No.KA-04-MM-8904 and thereby caused the accident. He has further stated that, the IMV Report issued by the R.T.O. Inspector clearly mentioned that, the front portion of the Motor Cycle, such as, front mudguard, front head light damaged, whereas, rear left side door dented and rear left side body scratched to the Car bearing Registration No.KA-04-MM-8904 and the Spot Sketch clearly shows that, the Motor Cycle moving on the extreme right side of the road and hence, it is clear from the sequence of events that, the accident occurred solely on the fault of the rider of the Motor Cycle, i.e., the deceased.
16. The Respondent No.1 has also produced Ex.R.3 MVI Report and Ex.R.4 Spot Hand Sketch.
17. But, only based on the oral version of R.W.1 coupled with the contents of Ex.R.3 MVI Report and Ex.R.4 Spot Hand Sketch, it cannot be believed and accept the defence taken by the Respondent No.1 that, the entire negligence is on the part of the deceased himself in committing the said road traffic accident and there was no negligence on the part of the driver of the offending Car bearing Registration No.KA-04-MM-8904, as, the said defence taken by the Respondent No.1is clearly denied by the P.W.1 in her cross-examination. Further, the P.W.1 in her cross-examination has clearly stated that, due to the accidental injuries, caused on head, her husband died and at the time of accident, her husband was wear helmet and at the time of accident, her husband was 20 M.V.C.NO.1841/2014 (SCCH-7) having a valid and effective driving licence to ride the said Motor Cycle. The Petitioners have produced Ex.P.20 Driving Licence relating to the deceased. Furthermore, to corroborate the oral version of P.W.1, the Petitioners have produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Spot Mahazar, Ex.P.4 Spot Hand Sketch, Ex.P.5 Police Intimation, Ex.P.6 Requisition, Ex.P.7 Inquest, Ex.P.8 Post-mortem Report, Ex.P.9 MVI Report and Ex.P.15 Charge Sheet, which clearly disclosed that, the entire negligence is on the part of the driver of the offending Car bearing Registration No.KA-04-MM-8904 and there was no negligence is on the part of the deceased in riding his Motor Cycle bearing Registration No.KA-04-Y-1499, which is clear from the following discussion. Furthermore, as per Ex.P.4 Spot Hand Sketch and Ex.R.4 Spot Hand Sketch, the accidental spot is an edge of the Service Road, on which, the deceased was proceeding on its Motor Cycle bearing Registration No.KA-04-Y-1499 and the offending Car came on the same direction from the Main Road on its left side and took it on extreme left side and dashed to the said Motor Cycle. Only based on the damages caused to both the vehicles shown in Ex.P.9 MVI Report and Ex.R.3 MVI Report, it cannot be come to the conclusion that, there is contributory negligence attributed on the deceased also, as, there was no allegations leveled as against the deceased in Ex.P.15 Charge Sheet in respect of the commission of the said road traffic accident. Furthermore, to consider its defence, the Respondent No.1 has not examined any eye witness as shown in Ex.P.15 Charge Sheet. Further, the R.W.1 in his cross-examination has clearly stated that, they have not 21 M.V.C.NO.1841/2014 (SCCH-7) conducted survey relating to the accident in question through their Company surveyor and he has not personally verified the accident spot and based on the Police records, he has given evidence in his affidavit in respect of the accident. He has further clearly stated that, as per Ex.R.4 Spot Hand Sketch, the accidental spot is a Service Road. He has clearly admitted that, the crush guard is situated in between the front wheel and engine of the Motor Cycle and the battery are situated front left side of the Motor Cycle and there are two foot wears in the Motor Cycle and the foot stand is situated in the middle of the Motor Cycle on its both sides. He has further clearly stated that, as per Ex.R.3 MVI Report, the right side of the Motor Cycle was damaged. He has further clearly stated that, he has not challenged the charge sheet. From the said evidence, it is made crystal clear that, in the said road traffic accident, the right side of the Motor Cycle, wherein, the deceased was proceeding, was damaged, which clearly implies that, since the driver of the offending Car took it on extreme right side of the road from Main Road to Service Road and dashed to the Motor Cycle, due to which, the damages are caused to the Motor Cycle.
18. The contents of Ex.P.1 FIR and Ex.P.2 Complaint clearly disclosed that, the son of the deceased, i.e., the Petitioner No.2 had lodged Ex.P.2 Complaint before the R.T. Nagar Traffic Police as against the driver of the offending Car bearing Registration No.KA-04-MM-8904 by alleging that, on 08.03.2014 at 12.45 p.m., the offending Car bearing Registration No.KA-04- 22 M.V.C.NO.1841/2014 (SCCH-7) MM-8904 came on Bangalore to Bellary Main Road from Mecry Circle towards Hebbla with high speed, rash and negligent manner by its driver and near CBI Bus Stand, it came from Main Road to Service Road and dashed to the Motor Cycle bearing Registration No.KA-04-Y-1499, wherein, his father Krishna was proceeding for Sanjay Nagar cross towards Hebbala on the Service Road and due to the said impact, his father fell down along with the Motor Cycle and had sustained grievous injuries on his head, hands, legs and blood was oozing and he was shifted to Columbia Asia Hospital for treatment and as such, he prayed to take necessary legal action as against the driver of the offending Car and based on the said Ex.P.2 Complaint, the Police have registered a criminal case as against the driver of the offending Car for the offences punishable under Section 279 and 337 of IPC under Crime No.27/2014. It is clear from the contents of Ex.P.1 FIR and Ex.P.2 Complaint that, there is no delay as such in lodging the said complaint and no contributory negligence attributed on the part of the deceased.
19. The contents of Ex.P.3 Spot Mahazar, Ex.P.4 Spot Hand Sketch, Ex.P.9 and Ex.R.3 MVI Reports further clearly disclosed about the very involvement of the offending Car bearing Registration No.KA-04-MM-8904 as well as its driver in the said road traffic accident, which was taken place in the junction place of Service Road to Main Road, in that place, the driver of the offending Car took his offending Car on the extreme left side, wherein, the Service Road joins to the Main Road. It is also clearly mentioned in Ex.P.9 and Ex.R.3 MVI Reports that, the said 23 M.V.C.NO.1841/2014 (SCCH-7) accident was not occurred due to any mechanical defects of the said vehicles.
20. On perusal of the contents of Ex.P.5 Police Intimation, Ex.P.6 Requisition, Ex.P.7 Inquest and Ex.P.8 Post-mortem Report, it is further clearly goes to show that, immediately after the accident, the said deceased Krishna. K. was shifted to Columbia Asia Hospital, wherein, he was admitted as an inpatient till 13.03.2014 and necessary and required treatment was given to him and on 13.03.2014 at 9.50 p.m., he succumbed to the injuries in the said Columbia Asia Hospital and as such, based on the death memo and reasons made by the said Police, Section 304(A) is inserted in the said criminal case as against the driver of the offending Car. It is also clearly mentioned in Ex.P.8 Post- mortem Report that, the cause of death is due to Coma as a result of head injury sustained. From this, it is made crystal clear that, due to the accidental injuries, the said deceased Krishna. K. S/o Late Kempaiah expired on 13.03.2014 at 9.50 p.m.
21. The contents of Ex.P.15 Charge Sheet further clearly disclosed that, due to very high speed, rash and negligent manner of driving of the offending Car bearing Registration No.KA-04-MM- 8904 by its driver, the said road traffic accident was taken place near CBI Bus Stand, which dashed to the Motor Cycle bearing Registration No.KA-04-Y-149, wherein, the deceased was proceeding on the Service Road and the said accident was taken place in the junction place of the Service Road and Main Road and 24 M.V.C.NO.1841/2014 (SCCH-7) the said offending Car came from the Main Road and dashed o the Motor Cycle on its right side and due to the said impact, the deceased fell down along with the Motor Cycle and had sustained grievous injuries on his head, hands and legs and he was shifted to Columbia Asia Hospital and he succumbed to the injuries on 13.03.2014 at 9.50 p.m., and as such, after thorough investigation, the Investigating Officer has filed a charge sheet as against the driver of the offending Car for the offences punishable under Section 279 and 304(A) of I.P.C. There is no allegation made by the Investigating Officer in the said charge sheet as against the deceased in respect of the said accident.
22. On perusal of the above said material evidence, it is made crystal clear that, due to high speed, rash and negligent manner of driving of the offending Car bearing Registration No.KA- 04-MM-8904 by its driver itself, the said accident was taken place and there was no negligence on the part of the deceased in the said road traffic accident and the deceased succumbed to the injuries during the course of treatment in the Hospital. The very involvement of the offending Car bearing Registration No.KA-04- MM-8904 as well as its driver, are very much clear from the said material evidence. Accordingly, I answered Issue No.2 in the Affirmative.
23. ISSUE NO.3 :- It is clear from the contents of Ex.P.18 Election Identity Card, Ex.P.19 PAN Card, Ex.P.20 Driving Licence, Ex.P.21 Adhaar Card and Ex.P.22 Service Particulars 25 M.V.C.NO.1841/2014 (SCCH-7) relating to deceased that, the date of birth of the deceased is on 23.07.1956. The date of accident is on 08.03.2014. From this, it is made crystal clear that, as on the date of the accident, the deceased was 58 years old. Hence, the age of the deceased is considered as 58 years at the time of accident.
24. The P.W.1 has stated that, prior to the accident, her husband was hale and healthy and was working as a Driver Grade II with BESCOM and drawing a monthly salary of Rupees 74,054/-. In this regard, the Petitioners have produced Ex.P.11 Salary Certificate, Ex.P.12 Statement of TDS 9 in numbers, Ex.P.16 Salary Certificate, Ex.P.17 Canara Bank Pass Book and Ex.P.19 PAN Card, relating to the deceased. The Petitioners have also examined the Accounts Office of BESCOM, Hebbal Division, as P.W.2, who has stated in his examination-in-chief that, he knows the husband of the Petitioner Late K. Krishna since from four years and he was working as a Driver Grade-II in BESCOM Company, Hebbal Division, Bangalore and he was drawing a salary of Rupees 77,096/- p.m. To consider his oral version, he has produced Ex.P.22 Service Particulars, Ex.P.23 Salary Certificate from September 2013 to February 2014, Ex.P.26 Salary Certificate and Ex.P.27 Service Certificate dated 20.02.2015 relating to the said deceased. On perusal of the contents of the said material documents as well as the oral version of P.W.1 and P.W.2, it clearly goes to show that, at the time of accident, the deceased Krishna. K., S/o Late Kempaiah was working as a Driver Grade - II in BESCOM Company, Hebbal Division, Bangalore and 26 M.V.C.NO.1841/2014 (SCCH-7) at the time of accident, i.e., February 2014, his gross salary was Rupees 77,096/- and net salary was Rupees 57,238/- per month. It is also clear from the contents of the said material documents that, the deceased was an income tax assessee and in the salary for the month of February 2014, a sum of Rupees 8,500/- is deducted from his salary as income tax. Further, the P.W.2 in his cross-examination has clearly stated that, since 01.07.2009, he has been working as an Accounts Officer in BESCOM, Hebbal Region, Hebbal and the deceased joined as a Assistant Lineman and at the time of accident, he was working as a Driver Grade II and the age of retirement in their Department is 60 years. He has further stated that, the deceased was under pension scheme and one month before the accident, the deceased was drawing a Net Salary of Rupees 57,238/-. He has further clearly admitted that, in every month, there is variation in the amount of net salary. Therefore, the said net salary of Rupees 57,238/- per month is considered as actual income of the deceased at the time of accident per month.
25. The P.W.1 in her cross-examination has clearly stated that, after the death of her husband, BESCOM has paid Rupees 6,00,000/- to her for the death benefits and now, she is receiving pension of Rupees 12,000/-. Except the oral version of P.W.1, the Petitioners have not produced any authenticated documents issued by the employer of the deceased to show that, after the death of the said deceased, how much amount is received by them in respect of the death benefits. However, the P.W.1 in her cross-
27 M.V.C.NO.1841/2014(SCCH-7) examination has clearly stated that, now she is receiving the pension of Rupees 12,000/-. Further, the P.W.2 in his cross- examination has stated that, nearly 10 Lakhs received by the family members of the said deceased from DCRG and they have deducted the balance loan amount in the death benefits of the deceased and the wife of the deceased is receiving pension and the pension is also credited to the Bank Account. The said amount of Rupees 12,000/-has to be deducted in the actual salary of Rupees 57,238/-, which was a net salary of the deceased, which was received by the deceased at the time of accident for the salary of February 2014. After deducting the said amount of Rupees 12,000/- in the actual salary of Rupees 57,238/-, the balance amount comes to Rupees 45,238/-. Therefore, the actual income of the deceased is considered as Rupees 45,238/- at the time of accident.
26. The P.W.1 has stated that, her deceased husband was contributing his entire income to the family and they were entire depending on the deceased. She has further stated that, she has lost the love and affection of her husband and the Petitioner No.2 has lost the love and affection of his father and her husband died without performing the marriage of his son, i.e., the Petitioner No.2.
27. As the deceased was aged 58 years at the time of accident, no addition towards future prospects as per the decision 28 M.V.C.NO.1841/2014 (SCCH-7) reported in 2013 ACJ 1403 (Rajesh and Others V/s Rajbir Singh and Others).
28. The Petitioner No.1, who is a wife, is considered as a dependent of the deceased. Therefore, deceased left behind 1 dependent. As per the principles laid down in Sarala Varma's Case, considering the number of the dependents, i.e., 1, 1/3rd of the income has to be deducted towards personal expenses of the deceased, i.e., Rupees 15,079.33 (1/3rd of Rs.45,238/-). Therefore, loss of dependency comes to Rupees 30,158.67 (Rs.45,238/- (-) Rs.15,079.33). The multiplier corresponding to the age of the deceased, i.e., 58 years, is 9 as per Sarala Varma's Case. Therefore, loss of dependency comes to Rupees 12,24,000/- (Rs.30,158.67 x 12 x 9). Therefore, the Petitioners are entitled for Rupees 32,57,136-36 towards loss of dependency due to death of Krishna. K. S/o Late Kempaiah, which is rounded off Rupees 32,57,136/-.
29. The P.W.1 has stated that, after the post-mortem, the dead body was handed over to them and they have performed the last rituals of her deceased husband by spending more than Rupees 1,00,000/-. She has further stated that, they have incurred Rupees 25,000/- towards medical expenses and ambulance expenses and they have incurred a total expenses of Rupees 2,57,193/- in the Colombia Asia Hospital.
30. As per the principles laid down in the decision reported in 2013 ACJ 1403 (Rajesh and Others V/s Rajbir Singh and 29 M.V.C.NO.1841/2014 (SCCH-7) Others), loss of consortium to the Petitioner No.1, who is a wife of the deceased, should be Rupees 1,00,000/- and funeral expenses should be Rupees 25,000/-. Hence, they are entitled for the said amount of compensation.
31. As the Tribunal has already observed that, the Petitioner No.1 is a wife and the Petitioner No.2 is a major son of the deceased. Considering the relationship of the Petitioners with the deceased and facts and circumstances of the case, towards loss of love and affection, Rupees 10,000/- is awarded.
32. Rupees 5,000/- is awarded towards expenses of transportation of dead body and Rupees 10,000/- is awarded towards loss of estate.
33. The Petitioners have produced Ex.P.10 Medical Bills 2 in numbers, which is amounting of Rupees 2,81,532/- (Rupees 24,339/- + Rupees 2,57,193/-). Deceased was taken treatment in the Columbia Asia Hospital by admitting as an inpatient from 08.03.2014 to 13.03.2014, i.e., for 5 days, which is clear from the above said Police and medical documents produced by the Petitioners. There is no dispute about the death of deceased on 13.03.2014 at 9.50 p.m., in the Columbia Asia Hospital due to the accidental injuries, during the course of treatment, which is also clear from Ex.P.8 P.M. Report and Ex.P.15 Charge Sheet. From this, it appears that, from the date of the accident till his death, the deceased had taken treatment to the accidental injuries. Under such circumstances, there are merits in the claim of 30 M.V.C.NO.1841/2014 (SCCH-7) medical expenses of Rupees 2,81,532/-, which covered under Ex.P.10 Medical Bills, by the Petitioners. Further, the said amount spent by the Petitioners cannot be doubted. Hence, the Petitioners are entitled for Rupees 2,81,532/- towards actual medical expenses.
34. In this way, the Petitioners are entitled for the following amount of compensation:-
Sl. No. Compensation heads Compensation amount
1. Loss of Dependency Rs. 32,57,136-00
2. Loss of Consortium Rs. 1,00,000-00
3. Funeral Expenses Rs. 25,000-00
4. Loss of Love and affection Rs. 10,000-00
5. Expenses of transportation Rs. 5,000-00 of dead body
6. Loss of Estate Rs. 10,000-00
7. Medical Expenses Rs. 2,81,532-00 TOTAL Rs. 36,88,668-00
35. In all, the Petitioners are entitled for total compensation of Rupees 36,88,668/- along with interest at the rate of 6% per annum on the above said sum from the date of Petition till payment.
36. The P.W.1 has stated that, the Respondent No.1 is an insurer and the Respondent No.2 is a R.C. Owner of the offending vehicle and as on the date of the accident, the insurance was in 31 M.V.C.NO.1841/2014 (SCCH-7) force and hence, the Respondents are jointly and severally liable to pay the compensation to them.
37. While answering Issue No.2, this Tribunal has already come to the conclusion that, due to high speed, rash and negligent manner of driving of the offending Car bearing Registration No.KA- 04-MM-8904 by its driver, the road traffic accident was taken place, wherein, the deceased Krishna. K. S/o Late Kempaiah had sustained severe grievous injuries and he succumbed to the injuries in Columbia Asia Hospital during the course of treatment. The very involvement of the offending Car bearing Registration No.KA-04-MM-8904 and its driver in the said road traffic accident, are clearly proved. The Petitioners in the cause title of the petition have clearly mentioned that, the Respondent No.1 is being an insurer and the Respondent No.2 being a R.C. Owner of the offending Car bearing Registration No.KA-04-MM-8904 and its Policy number is 2013-V275-4146-FPV and valid from 12.12.2013 to 11.12.2014. The Respondent No.1 has clearly admitted in his written statement that, they have issued a policy in respect of the Car bearing Registration No.KA-04-MM-8904 in question in favour of the Respondent No.2 insured and the same was valid for the period from 12.12.2013 to 11.12.2014. The Respondent No.2 has also clearly admitted in his written statement that, at the time of accident, the driver of the Car was holding a valid driving licence and his Car was insured with the 1st Respondent and the same was in currency as on the date of the accident. The R.W.1, who is the Senior Executive of the Respondent No.1 in his examination-
32 M.V.C.NO.1841/2014(SCCH-7) in-chief, has clearly stated that, their Insurance Company has issued a policy of insurance in respect of the vehicle Car bearing Registration No.KA-04-MM-8904 in favour of insured 2nd Respondent and the same was valid for the period from 12.12.2013 to 11.12.2014. The Respondent No.1 has also produced Ex.R.2 Insurance Policy along with the terms and conditions. From this material evidence, it is made crystal clear that, at the time of accident, the Respondent No.1 was an insurer and the Respondent No.2 was a R.C. Owner of the offending Car bearing Registration No.KA-04-MM-8904 and its Insurance Policy was valid, which covers the date of accident. There is no allegation leveled as against the driver of the offending Car in Ex.P.15 Charge Sheet that, at the time of accident, he was not having a valid and effective driving licence to drive such class of vehicle. The violation of the terms and conditions of the Insurance Policy by the Respondent No.2 is not proved by the Respondent No.1. Under such circumstances, the Respondent No.1 being an insurer and the Respondent No.2 being R.C. Owner of the offending Car bearing Registration No.KA-04-MM-8904, are jointly and severally liable to pay the above said compensation and interest to the Petitioners. Since the Respondent No.1 is an insurer, it shall indemnify the Respondent No.2. In view of the above said reasons, the principles enunciated in the decision cited by the Learned Counsel appearing for the Petitioners are aptly applicable to the present facts and circumstances of the case on hand. On the other hand, the principles enunciated in the decision cited by the Learned Counsel appearing for the Respondent No.1 are not 33 M.V.C.NO.1841/2014 (SCCH-7) applicable to the present facts and circumstances of the case on hand. Hence, Issue No.3 is answered accordingly.
38. ISSUE NO.4 :- For the aforesaid reasons, I proceed to pass the following, ORDER The petition filed by the Petitioners under Section 166 of the Motor Vehicles Act, 1989, is hereby partly allowed with costs.
The Petitioners are entitled for compensation of Rupees 36,88,668/-
with interest at the rate of 6% p.a. from the date 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 and 2 shall share the compensation and interest in the ratio of 80:20.
In the event of deposit of compensation and interest, 50% share 34 M.V.C.NO.1841/2014 (SCCH-7) relating to the Petitioners No.1 and 2 shall be released in their respective names through account payee cheques, on proper identification.
Remaining 50% share relating to the Petitioners No.1 and 2 shall be kept in FD in their respective names, in any nationalized Bank of their choice, for a period of 3 years.
Advocate's fee is fixed at Rupees 1,000/-.
Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then, pronounced by me in the open Court on this, the 26th day of September, 2015.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONERS :-
P.W.1 : Saroja
P.W.2 : M.G. Kottur
35 M.V.C.NO.1841/2014
(SCCH-7)
2. DOCUMENTS MARKED BY THE PETITIONERS :-
Ex.P.1 True copy of FIR
Ex.P.2 True copy of Complaint
Ex.P.3 True copy of Spot Mahazar
Ex.P.4 True copy of Spot Hand Sketch
Ex.P.5 True copy of Police Intimation
Ex.P.6 True copy of Requisition
Ex.P.7 True copy of Inquest
Ex.P.8 True copy of PM Report
Ex.P.9 True copy of MVI Report
Ex.P.10 Medical Bills(2 in nos.)
Ex.P.11 Salary Certificate
Ex.P.12 Statement of TDS (9 in nos.)
Ex.P.13 Notarised xerox copy of Bank Pass Book relating to Smt. Saroja Ex.P.14 Notarised xerox copy of Bank Pass Book relating to Sri. Manjunath K. Ex.P.15 True copy of Charge Sheet Ex.P.16 Salary Certificate relating to late K. Krishna.
Ex.P.17 Canara Bank Pass book relating to K. Krishna Ex.P.18 Notarised xerox copy of Election Identity Card relating to Sri. K. Krishna Ex.P.19 Notarised xerox copy of Pan Card relating to Sri. K. Krishna Ex.P.20 Notarised xerox copy of Driving Licence relating to Sri. K. Krishna Ex.P.21 Notarised xerox copy of Aadhaar Card relating to Sri. K. Krishna Ex.P.22 True copy of Service particulars relating to deceased K. Krishna Ex.P.23 True copy of Salary Certificate from September 2013 to February 2014 relating to deceased K. Krishna Ex.P.24 Notarised xerox copy of Identity Card relating to M.G. Kottur Ex.P.25 Notarised xerox copy of Identity Card relating to M.G. Kottur 36 M.V.C.NO.1841/2014 (SCCH-7) Ex.P.26 Salary Certificate relating to Late K. Krishna Ex.P.27 Service Certificate dated 20.02.2015 Ex.P.28 Notarised xerox copy of Aadhaar Card relating to Saroja Ex.P.29 Notarised xerox copy of Election Identity Card relating to Saroja Ex.P.30 Notarised xerox copy of Aadhaar Card relating to Manjunath K. Ex.P.31 Notarised xerox copy of Election Identity Card relating to Manjunath K.
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
R.W.1 : Shankar S/o Sri. Chikke Gowda
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
Ex.R.1 : Authorization Letter
Ex.R.2 : True Copy of Insurance Policy along
with terms and conditions
Ex.R.3 : True Copy of MVI Report
Ex.R.4 : True Copy of Spot Hand Sketch
(INDIRA MAILSWAMY CHETTIYAR)
IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.