Bangalore District Court
Are Entitled To Compensation For vs No.3 - Insurance Company on 17 August, 2016
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND ADDL.
MACT., BANGALORE, (SCCH-7)
Dated this, the 17th day of August, 2016.
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.1929/2014
1. Smt. Sharada, ..... PETITIONERS
W/o. Late Chikkaramaiah @ Chikkaramu,
Aged 38 years,
Occ: House Wife.
2. Sri. Mohan Kumar.C. @ Mohan,
S/o. Chikkaramaiah @ Chikkaramu,
Aged 23 years,
Occ: Electrician.
All are residing at;
No.399, Ullal Upanagar,
6th Cross, New Bus Stand,
Bangalore - 56.
(By Sri. Suresh. M. Lathur, Adv.,)
V/s
1. Sri. Selvam. D., ..... RESPONDENTS
S/o. Late Dharmalingam.
Since, deceased Represented by his LR's,
Smt. Vijaya,
W/o. Selvam. D.,
SCCH-7 2 M.V.C.No.1929/2014
No.396/A, 9th Main Road,
Vijayanagar,
Bangalore - 40.
(Lorry bearing Registration No.KA-02-
7747)
2. The Regional Manager,
New India Assurance Co. Ltd.,
No.9/2, Mahalakshmi Complex,
M.G. Road, IInd Floor,
Opp. Ajantha Hotel,
Bangalore - 560 001.
(Policy No.67030331100200002146,
Valid from 26.05.2010 to 25.05.2011)
(By R-1 Sri. C.N. Sathyanarayana Shastri,
Adv.,)
(By R-2 Sri. G.S. Maralaiah, 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, 1988, praying to award compensation of Rupees 10,00,000/- with interest at the rate of 12% p.a., in respect of death of Sri. Chikkaramaiah @ Chikkaramu S/o. Ramaiah.
2. The brief averments of the Petitioners' case are as follows;
a) On 13.01.2011 at about 9.30 p.m., the deceased was traveling in an Auto Rickshaw bearing Registration No.KA-02-A- 2969 as a passenger on Ullal Main Road, Bangalore. At that time, SCCH-7 3 M.V.C.No.1929/2014 a Lorry bearing Registration No.KA-02-7747 came from opposite side with high speed, in rash and negligent manner and dashed against their Auto Rickshaw and the Auto Rickshaw turned turtle down. As a result of the accident, he sustained grievous injuries and immediately after the accident, he was taken to Fortis Hospital, Bangalore, from there, he was shifted to NIMHANS Hospital, later, he was admitted to Victoria Hospital. Later, the deceased died due to the accidental injuries on 03.05.2013. So far, they have spent about Rupees 1,00,000/- towards medical and funeral expenses.
b) At the time of accident, he was aged about 40 years and was earning Rupees 9,000/- per month by working as an Auto driver. Before the accident, he was hale and healthy and he was contributing his full earnings for the maintenance of their family. Due to the sudden and un-natural death of him, they have lost their future dependency, love, affection, company of the deceased and livelihood and they are facing severe financial problems. Hence, their lives have become dark and miserable.
c) The said accident occurred due to the rash and negligent driving of the Lorry bearing Registration No.KA-02-7747. The Kamakshmipalya Traffic Police have registered a Criminal case as against the driver in Crime No.6/2011, under Section 279 and 337 of IPC. Hence, this petition.
3. In response to the notice, the Respondent No.1 has appeared before this Tribunal through her Learned Counsel. But, initially, inspite of giving sufficient opportunities, the Respondent SCCH-7 4 M.V.C.No.1929/2014 No.1 had not filed the written statement. Later, as per the Order dated 17.10.2014 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 his 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 fatal accident was self caused due to the negligence of the Auto Rickshaw driver, wherein, the deceased was traveling as a passenger, at the time of accident.
b) The deceased did not die due to the cause for accident. As the date of accident is 13.01.2011 and the date of death is 03.05.2013, there is no nexus between the accident and the death of the deceased, as the death of the deceased has occurred more than two years four months after the date of accident.
c) The amount of compensation claimed by the Petitioner is exorbitant and too avaricious and the claim petition should be dismissed on that ground alone.
d) The accident is not caused due to the negligent driving of the Lorry driver, but, is self made due to the negligent driving of the Auto Rickshaw driver, wherein, the deceased was the passenger. Moreover, the deceased died more than 2 years 4 SCCH-7 5 M.V.C.No.1929/2014 months after the date of accident and the deceased died due to other reasons other than the accidental injuries. The date of accident is 13.01.2011 and the deceased died on 03.05.2013 as clearly mentioned in the claim petition. At the time of accident, the Lorry was fully covered under Insurance Policy and moreover, the driver of the Lorry was having valid driving licence. Moreover, the Lorry driver was prosecuted for the offences punishable under Section 279, 337 of IPC only and not under the Section 304(A) of IPC as clearly made out in the claim petition. The compensation amount claimed by the Petitioners including medical expenses is an exorbitant and the Petitioners are put to strict proof of the same. At the time of accident, the Lorry driver was driving the Lorry cautiously and carefully, without violating any traffic rules and was not driving the Lorry in a rash and negligent manner. Hence, prayed to dismiss the claim petition.
6. The Respondent No.2 inter-alia denying the entire case of the Petitioners, has further contended as follows;
a) It has issued comm.. vehicle liability only Insurance Policy bearing No.67030331100200002146 covers from 26.05.2010 to 25.05.2011 in respect of Mitsubishi bearing Registration No.KA-02-7747 in favour of Respondent No.1 and the liability of it, if any, is subject to the terms and conditions of the policy and provisions of M.V. Act and the RC, FC, valid and effective driving licence held by the driver of the said vehicle at the time of accident.
SCCH-7 6 M.V.C.No.1929/2014b) It had appointed an Investigator and has come to know that, the Police have made thorough investigation and filed a charge sheet against the accused under Section 279 and 337 of IPC. The Police investigation clearly shows that, the deceased Chikkaramaiah sustained simple injuries and due to the accidental injuries, not died on 13.01.2011. As per the petition, the deceased died on 03.05.2013. It clearly shows that, the death due to other reasons and there was no nexus between the accidental injuries and death. The said petition is not maintainable either in law or on facts.
c) Without prejudice to the contentions raised above, it craves leave of this Hon'ble Tribunal under Section 170 of M.V. Act, to urge all the grounds that are expressly open for the insured/Respondent No.1, if the insured fails to contest the case.
d) Without prejudice to the said contention, when the accident occurred, the deceased was traveling in the Auto Rickshaw bearing Registration No.KA-02-A-2969, at that time, the Lorry dashed from opposite side. It clearly shows that, there was a contributory negligence. It exceeds 70% from the driver of the Auto Rickshaw. The insurer and insured of the Auto Rickshaw bearing Registration No.KA-02-A-2969 are not made the parties. Hence, the petition is not maintainable.
e) There is no liability to pay any compensation amounting to Rupees 10,00,000/-. The compensation claimed by the Petitioners is grossly exaggerated and primarily intended to make illegal gain.
SCCH-7 7 M.V.C.No.1929/2014f) As per General Contract Act, any contract should be arrive, contract with dead person is a void contract. Hence, insurance contract is a void contract. Hence, insurance contract is a void contract. Hence, it is not enforceable. As per death certificate, Insured Selvam has died on 14.03.2005.
g) This Hon'ble Tribunal in the event of granting of an award, may have to grant interest at 6% p.a., as per the decisions of our Hon'ble High Court.
h) All other contentions raised by the Petitioners, which run counter to this written statement are hereby specifically repudiated as false and baseless.
i) The Petitioners have called upon to prove that, they have not filed any claim petition before any other Tribunal/Court/Forum, at any other place on the same cause of action.
j) It reserves the right to file additional written statement under the changed circumstances of the case. 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 SCCH-7 8 M.V.C.No.1929/2014 representatives of deceased Sri. Chikkaramaiah @ Chikkaramu?
2. Whether the Petitioners prove that, the accident occurred due to rash and negligent driving of the Lorry bearing Registration No.KA-02-7747 by its driver and Sri.Chikkaramaiah @ Chikkaramu 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 5 witnesses as P.W.2 to P.W.6 by filing the affidavits as their examination-in-chief and have placed reliance upon Ex.P.1 to Ex.P.19. On the other hand, the Respondent No.2 has examined its Assistant Manager as R.W.1 by filing an affidavit as his examination-in-chief and has placed reliance upon Ex.R.1 to Ex.R.16. On the other hand, the Respondent No.1 has not adduced any evidence on her behalf. Ex.R.16 is marked during the course of cross-examination of R.W.1, by confrontation.
9. Heard the arguments.
10. In support of the submission, the Learned Counsel appearing for the Petitioners Sri. Suresh.M.Lathur has placed reliance upon the decisions reported in, SCCH-7 9 M.V.C.No.1929/2014
i) 2003 ACJ 1353 High Court of Gujarat At Ahmedabad (Gujarat State Road Transport Corporation V/s. Mariambai A. Adamji (since deceased) through LRs. and Another), wherein, it is observed that, Negligence - Bus proceeding at fast speed towards road junction hit a truck parked on the left side of the road injuring a passenger in the bus- Defence that, bus was being driven at a slow speed, another truck came at fast speed from the right hand side road and the driver of the bus had to serve the bus to further left-Bus driver deposed that, he could not see the truck coming from the right side road as the view was obstructed by trees but, his version had not been corroborated-Driver of the bus was held guilty in departmental inquiry-Tribunal held that, bus driver was rash and negligent and caused the accident-Appellate court observed that, bus driver may not be fully responsible for the accident but, upheld the finding of the Tribunal.
Motor Vehicles Act, 1939, section 110- A (section 166 of 1988 Act)-Claim application-Death of the injured after 5 months of the accident-Injured suffered fractures of left ilium and left clavicle bone on outer side-Doctor's evidence in corroboration with evidence of driver of the bus makes it clear that, the injured sustained injuries as a result of accident- Injured remained in the hospital for a day and discharged on request-Doctor stated that, it was not possible to ascertain whether the injured had any injury to internal organs-Widow of the deceased deposed that, he remained unconscious till he died and she had no money to arrange for his hospital SCCH-7 10 M.V.C.No.1929/2014 treatment though some treatment of a private doctor was taken for one month after discharge of the deceased from the hospital- No evidence of any other ailment or disease which could have terminated his life abruptly-Tribunal accepted oral evidence of the widow and held that, the deceased died due to serious internal injuries which he had sustained in the accident-Tribunal's finding upheld in appeal.
ii) 2005 ACJ 433 High Court of Judicature At Calcutta (Vidhyawati and Another V/s. A. Guruswamy and Another), wherein, it is observed that, Motor Vehicles Act, 1988, section 166- Claim application-Quantum-Principles of assessment-Pedestrian was hit by a taxi and sustained injuries including fracture of right leg-Injured remained under continuous treatment and died after 5 months due to pneumonia-Medical evidence that, injury was one of the reasons for his death-No medical evidence in rebuttal that, injury cannot be the cause of death-No medical evidence in rebuttal that, injury cannot be the cause of death-Tribunal allowed compensation on injury basis for 15 per cent disability on the ground that, death has occurred not due to accident but, due to pneumonia and rental failure-Whether the claimants are entitled to compensation for loss of life-Held: yes; injury is found to be primary cause of death. Quantum-Fatal accident-Deceased aged 45, Radio Operator, drawing Rupees.8,144 p.m.-Claimants:
widow and minor son-Tribunal awarded reduced 1/3rd and allowed Rupees.8,46,976- Award of Rupees.1,90,570 enhanced in appeal to Rupees.8,46,976.SCCH-7 11 M.V.C.No.1929/2014
Quantum-Interest-Allowed at the rate of 12 per cent per annum from date of filing of claim petition till payment.
iii) 1982 ACJ (Supp.) 548 High Court of Gujarat At Ahmedabad (Ranchhodbhai Somabhai deceased by his heirs Somabhai Vajabhai and Another V/s. Babubhai Bhailalbhai and Others), wherein, it is observed that,
(a) Motor Vehicles Act, 1939, section 110-A-Claim application-Injured died during the pendency of his application and his parents were permitted to presents and claim was enhance-Evidence that, deceased continued to suffer from urinary trouble till his death besides prolonged treatment for 17 months and hospitalization many times before the death-No medical evidence directly establishing the cause of death-
Whether the death had direct and proximate connection with the accident injuries-
Held:yes; the absence of medical evidence directly establishing the cause of death is not a circumstance which throws any doubt on the connection between the accident injury and death.
(b) Motor Vehicles Act, 1939, section 110-A-Civil Procedure Code, 1908, Order 6, rule 2- Pleading-Material facts-Claim petition did not clearly specify that, the death of the deceased was ascribable to the accident injury which had persisted to manifest itself by recurrent urinary trouble till death-Held:
it is not the requirement of law that, meticulous particulars regarding after effects of accident injury should be mentioned in the claim applications.SCCH-7 12 M.V.C.No.1929/2014
(c) Quantum-Fatal accident-Deceased aged 20, apprentice carpenter and earning Rupees.200/- p.m.-Claimants: parents-
Future prospects considered and his income assessed at Rupees.400/- p.m. and yearly dependency assessed at Rupees.1,300/-
Multiplier of 16 applied and awarded Rupees.20,800/- plus Rupees.12,800/- on account of pain and suffering as the deceased remained under prolonged treatment, Rupees.3,000/- as medical expenses, Rupees.3,400/- as loss of wages from the date of accident till death and Rupees.5,00/- as loss of expectation of life- Total award Rupees.45,000/-.
(d) Quantum-Interest-Allowed @ 6 per cent per annum from the date of application till realization.
(e) Award-Apportionment of-Death of
unmarried son-Claimants: father and
mother-Dependency benefit equally
apportioned but, the loss forming part of the estate, conventional award for the loss of expectation of life, compensation for pain, shock and suffering caused to the deceased were given tot the mother as she is the heir specified in class I of section 8 of the Hindu Succession Act.
iv) M.F.A.No.4713 High Court of Karnataka At Bangalore (C.S.Rathnamma and Another V/s. The Managing Director, KSRTC., and Other), wherein, it is observed that,
10. Since the Tribunal had come to the conclusion that, both the drivers of the offending vehicles contributed for the cause of death, the above sum has to be indemnified by both the owners of the SCCH-7 13 M.V.C.No.1929/2014 offending vehicles equally. The Respondent No.3 being the Insurance Co., of the lorry, it is made liable to indemnity to the owner to an extent of 50%.
11. Both the appellants - claimants are entitled to equal share of the award amount; of course the appellant - claimant No.1 is entitled to for some award under the head consortium. Respondent No.1 - KSRTC as well as the Respondent No.3 - Insurance Co., are directed to deposit the sum they are liable to pay within a period of 8 weeks from this day before the Tribunal.
v) M.F.A.No.21548/2009 (MV) High Court of Karnataka At Bangalore (Smt. Ratnawwa and Others V/s. Basavaraj Basalingappa and Others), wherein, it is observed that,
18. Accident in question occurred on 04.11.2001 and she was admitted to KHI Hospital, Ghataprabha, i.e., on the very same day. On account of multiple injuries sustained, she was operated on 27.11.2001 namely, for fracture of left femur neck and fracture ulna left forearm. Case Sheet -
Ex.P.62 would show that, there is complete inconsistency in her blood pressure apart from other complication as noted in the case sheet - Ex.P.62. Nowhere the case sheet speaks that, condition of deceased Smt. Ratnawwa was doing well which would entitle her for immediate discharge and in fact she came to be discharged on 23.12.2001 and within 16 days thereafter, i.e., on 12.01.2002 she expired. This sequential date of events would clearly point out finger that, deceased Smt.Ratnawwa had expired on account of injuries sustained by SCCH-7 14 M.V.C.No.1929/2014 her in the road traffic accident that occurred on 04.11.2001. Non reporting of the death either to the Court or to the jurisdictional police would not be a ground to shut the doors of the Court and to deny the litigants the relief particularly when they are illiterate and having no worldly knowledge and as such opportunity to seek relief cannot be dined when benefits of social beneficial legislation are being extended. Hence, I am of the considered view that, finding arrived at by Tribunal on additional issue No.1 is erroneous and liable to be set aside.
Accordingly, point No.(i) is answered in favour of appellants - claimants and against Respondent No.3 - Insurance Company.
vi) M.F.A.No.2084 of 2005 (MV) High Court of Karnataka At Bangalore (Ramanna and Others V/s. The Managing Director, KSRTC.,), wherein, it is observed that, One Ramanna sustained fracture of right patella, fracture of spine and fracture of T12 vertebra with paraplegia in motor vehicle accident. The occurrence of the accident negligence of the driver of the offending vehicle and coverage of insurance for the vehicle are not in dispute.
2. The Petitioner had sustained paralysis of both lower limbs. On account of disability he was bedridden. The Petitioner filed petition - seeking compensation. The Petitioner died during pendency of the petition.
3. The wife and two children have come on record as LRs and have prosecuted the case. The Tribunal dismissed the petition on the ground that, the Petitioners have failed SCCH-7 15 M.V.C.No.1929/2014 to prove that, the death is caused on account of the injury sustained in the accident. Hence, this appeal.
4. The medical evidence discloses that, the injured Ramanna had sustained spinal fracture, his lower limbs were paralysed, urethra was operated and he was bedridden for three years and he was in continuous treatment. The Doctor has also stated that, the death of the injured is on account of injuries sustained in the accident. It is evident from the record that, the injured never recovered from the injuries and he was completely bedridden. Therefore, the contention that, the injured died on account of injuries in the accident appears to be tenable contention.
5. The deceased was agriculturist, the notional income of the Petitioner is fixed at Rupees 3,000/- p.m., 1/4th is to be deducted for his personal expenses. Rupees 2,250/-
would ensure to the benefit of the dependents. The total loss of dependency would be Rupees 2,43,000/- (Rupees 2,250/- (income) x 12(month) x 9(multiplier). The widow is entitled for Rupees 25,000/-
towards loss of consortium. The Petitioners entitled together for Rupees 25,000/-
towards loss of expectancy and Rupees 10,000/- towards funeral expenses. In all, the Petitioner entitled for total compensation of Rupees 3,03,000/-. The Petitioners are entitled to interest at 6% p.a., from the date of petition till the date of payment. 75% of the total compensation shall be paid to the wife of the deceased and remaining 25% shall be paid to the sons of the deceased equally. Accordingly, the petition and appeal are allowed.
SCCH-7 16 M.V.C.No.1929/2014vii) 1980 ACJ 435 Supreme Court of India (N.K.V. Bros (P) Ltd., V/s. M.Karumai Ammal and Others,), wherein, it is observed that,
(a) Negligence - culpable rashness - A bus hit an overhanging high tension wire resulting in 26 casualties of which 8 proved instantaneously fatal - The requirement of culpable rashness under section 304A, IPC is more drastic than negligence sufficient under law of Torts to create liability - The plea that, the criminal case ended in acquittal has no bearing and was rightly rejected - Court did no interfere in the holding on culpability against the driver and compensation.
(b) Motor Vehicles Act, 1939, sections 110 B and 110-C - Law reforms - Claims Tribunal - Powers and procedure - Tribunals take special care to see that, the innocent victims do not suffer and drivers do not escape liability merely because of some doubt here or some obscurity there - save in plain cases culpability must be inferred from the circumstances where it is fairly reasonable - Supreme Court suggested the State must seriously consider no-fault liability by legislation and State must appoint sufficient number of Tribunal for quick disposal.
11. My answers to the above said Issues are as follows;
Issue No.1 : Partly in the Affirmative,
SCCH-7 17 M.V.C.No.1929/2014
Issue No.2 : Partly in the Affirmative,
Issue No.3 : Partly in the Affirmative,
The Petitioner are
entitled for compensation
of Rupees 50,000/- with
interest at the rate of 9%
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
12. ISSUE NO.1 :- It is pertinent to note here that, the Respondent No.1 has seriously disputed about the name of the deceased. According to the Petitioners, the name of the deceased is Chikkaramaiah @ Chikkaramu S/o. Ramaiah. The P.W.1, who is the Petitioner No.1, has clearly stated in her examination also that, the name of the father of her deceased husband is Ramaiah and the name of her deceased husband is Chikkaramu. No doubt, the P.W.1 in her cross-examination has clearly admitted that, Ex.P.10 document is relating to Chikkaraman. Ex.P.10 is Emergency Case Record. The P.W.2, who is the Medical Record Technician of Nimhans Hospital has stated in his cross- examination that, Ex.P.14 Case Sheet relating to Chikkaraman. The P.W.4, who is a treated Doctor, has stated in his cross- examination that, in Ex.P.15, the name of the patient is shown as Chikkaraman and his father shown as not known and in Ex.P.19 SCCH-7 18 M.V.C.No.1929/2014 MLC Register, the name of the patient is mentioned as Chikkaramu S/o. Late Narasimhaiah. The P.W.5, who is a Medical Records Officer of Victoria Hospital has stated in his cross- examination that, nowhere in Ex.P.18 Case Sheet, it is mentioned that, the said records are relating to Chikkaramu @ Chikkaramaiah or Chikkaramaiah @ Chikkaramu and it is mentioned in Ex.P.18 Case Sheet is relating to Chikkaramu S/o. Late Narasimhaiah and not Chikkaramaiah @ Chikkaramu. On perusal of the said evidence and the contents of the said medical documents, it appears that, the name of the deceased is shown as Chikkaraman, Chikkaramu and Chikkaramaiah S/o. Narasimhaiah. But, based on the said evidence elicited from the said witnesses by the Respondent No.1 during the course of cross- examination, it cannot be said that, deceased Sri.Chikkaramaiah @ Chikkaramu S/o. Ramaiah is no way related to the Chikkaraman, Chikkaramau and Chikkaramu S/o. Late Narasimhaiah, whose name shown in the said medical records and they are entirely different from each other, as, all the Police documents produced by the Petitioners, which are, Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Charge Sheet and Ex.P.7 Injured Statement of Chikkaramaiah, are clearly disclosed that, the correct name of the deceased is Sri. Chikkaramaiah @ Chikkaramu S/o. Ramaiah. Further, the Petitioners have produced the Election Identity Card relating to the said deceased, which clearly disclosed that, the correct name of the deceased is Chikkaramaiah. Therefore, there are no merits in the contentions taken by the Respondent No.1 during the course of cross- examination of the witnesses examined by the Petitioners in SCCH-7 19 M.V.C.No.1929/2014 respect of questioning the name of the deceased, who caused injuries in the alleged accident. Further, the P.W.1, who is a wife of the deceased Sri. Chikkaramaiah @ Chikkaramu S/o. Ramaiah has clearly stated in her cross-examination that, the name of the father of her deceased husband is Ramaiah and the name of her deceased husband is Chikkaramu. Further, the P.W.4 has clearly stated in his cross-examination that, he had examined the patient, namely, Chikkaramaiah S/o. Ramaiah and not Ramanna. Further, the P.W.6, who is an eye witness has clearly stated in his cross-examination that, the name of the patient is Chikkaramaiah and the said Chikkaramaiah has given information to the Doctor in the Hospital and the said Chikkaramaiah is not relating him and initially, he was brought the said Chikkaramaiah to Fortis Hospital and thereafter, he was shifted to Nimhans Hospital. Based on this material evidence, it can be safely held that, the correct name of the deceased is Sri. Chikkaramaiah @ Chikkaramu S/o. Ramaiah, who had sustained injuries in the accident in question.
13. The P.W.1, who is the Petitioner No.1, has stated in her examination-in-chief that, she is a wife of her deceased husband Chikkaramaiah @ Chikkaramu and the Petitioner No.2 is her son. She has further stated in her cross-examination that, her daughter is residing at her in-laws house and her son is residing along with her and during the lifetime of her deceased husband, her deceased husband, she and her son were residing together. The Petitioners have produced Ex.P.11 Death Certificate relating to Chikkaramu, Ex.P.12 Election Identity Card relating to SCCH-7 20 M.V.C.No.1929/2014 Petitioner No.1 and Ex.P.13 Ration Card. On perusal of the contents of the said material documents as well as the oral evidence of P.W.1, it clearly goes to show that, the Petitioner No.1 is a wife and the Petitioner No.2 is a major son of the deceased Sri. Chikkaramaiah @ Chikkaramu S/o. Ramaiah, who died on 03.05.2013. Since, the Petitioner No.1 is a wife and the Petitioner No.2 is a major son of the said deceased, they can very well be considered as legal representatives of the said deceased. But, based on the same, it cannot be said that, both the Petitioners were dependents upon the said deceased, as, admittedly, the Petitioner No.2 is a major son and the P.W.1 in her cross- examination has clearly stated that, her son is doing Mason work. From this material evidence, it is made crystal clear that, the Petitioner No.2, who is a major son of the deceased, is having his own income. Further, the P.W.1 in her cross-examination has clearly stated that, she is not doing any work. Since, the Petitioner No.1 is a wife of the said deceased, she can only be considered as a dependent upon the said deceased. Accordingly, I answered Issue No.1 partly in the Affirmative.
14. ISSUE NO.2 :- The P.W.1, who is the Petitioner No.1 has stated in her examination-in-chief that, on 13.01.2011 at about 9.30 p.m., her deceased husband Chikkaramaiah @ Chikkaramu S/o. Ramaiah was traveling in a Auto Rickshaw bearing Registration No.KA-02-A-2969 as a passenger on Ullal Main Road, Bangalore, at that time, a Lorry bearing Registration No.KA-02-7747 came from opposite side with high speed in rash and negligent manner and dashed as against her husband Auto SCCH-7 21 M.V.C.No.1929/2014 Rickshaw and due to which, the Auto Rickshaw turned turtle down and as a result of the accident, her husband sustained grievous injuries. She has further stated that, immediately after the accident, he was taken to Fortis Hospital, Bangalore, wherein he took first-aid treatment, from there, he was shifted to NIMHANS Hospital on the same day, i.e., 13.01.2011 and during the period, they took X-rays and put stitches to his head and treated conservatively and discharged approximately after one month and she lost Hospital Discharge Summary of her husband and Hospital bills while cleaning her house and later, he was admitted to Victoria Hospital, Bangalore for one week as an inpatient and also she lost Hospital Discharge Summary. She has further stated that, inspite of regular treatment, her husband was not recovered and hence, they approched the private Doctor Hanumanthachari, Bangalore, wherein, they got treated for 2 to 3 times and ultimately, he succumbed to death on 03.05.2013 in her house due to accidental injuries. She has further stated that, the said accident occurred due to the rash and negligent driving of the Lorry bearing Registration No.KA-02-7747 and the Kamakshmipalya Traffic Police have registered a Criminal case as against the driver in Crime No.6/2011, under Section 279 and 337 of IPC.
15. The Petitioners have produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Charge Sheet, Ex.P.4 Spot Hand Sketch, Ex.P.5 MVI Report, Ex.P.6 Wound Certificate, Ex.P.7 Injured Statement relating to Chikkaramaiah, Ex.P.8 Medical Certificate, Ex.P.9 Nimhans Hospital Card relating to Chikkaramaiah, Ex.P.10 SCCH-7 22 M.V.C.No.1929/2014 Emergency Case Record, Ex.P.11 Death Certificate relating to Chikkaramu and Ex.P.16 Wound Certificate.
16. The Respondent No.2 has also produced Ex.R.3 FIR, Ex.R.4 Complaint, Ex.R.5 Charge Sheet, Ex.R.6 Order Sheet of C.C.No.176/2011, Ex.R.7 Substance of Acquisition, Ex.R.8 Statement of Mahimraj @ Mayed S/o. Govindaswamy, Ex.R.9 Statement of Puttaswamy S/o. Nanjegowda, Ex.R.10 Statement of Chikkaramaiah S/o. Ramaiah and Ex.R.11 Wound Certificate, through R.W.1, who is his Assistant Manager.
17. Ex.P.1 and Ex.R.3 FIR, Ex.P.2 and Ex.R.4 Complaint clearly disclosed that, the driver of the Auto Rickshaw bearing Registration No.KA-02-A-2969, wherein, the deceased Chikkaramaiah @ Chikkaramu was traveling, had lodged Ex.P.2 and Ex.R.4 Complaint before the Kamakshipalya Traffic Police as against the driver of the offending Lorry bearing Registration No.KA-02-7747 by alleging that, on 13.01.2011 at 9.00 p.m., when he was driving the said Auto Rickshaw bearing Registration No.KA-02-A-2969 along with passengers from Ullal Upanagar towards Ring Road on Ullal Main Road, near Medi Plus Medical Shop, MGV Goods Lorry bearing Registration No.KA-02-7747 came from opposite side by its driver with very high speed rash and negligent manner and dashed to his Auto and due to which, the Auto turned turtle down and the passengers Chikkaramaiah and Mahimaraj had sustained grievous injuries and the public shifted them to Fortis Hospital, Nagarabhavi through Ambulance and the driver of the said MGV Lorry has not given treatment to the injured and hence, he prayed to take necessary legal action as SCCH-7 23 M.V.C.No.1929/2014 against the driver of the offending Lorry and based on Ex.P.2 and Ex.R.4 Complaint, the said Police have registered a criminal case as against the driver of the offending Lorry for the offences punishable under Section 279 and 337 of IPC under Crime No.6/2011. From the contents of FIR and Complaint, it is made crystal clear that, at the time of accident, the deceased Chikkaramaiah @ Chikkaramu S/o. Ramaiah was traveling in the Auto Rickshaw bearing Registration No.KA-02-A-2969 and at that time, the said accident was taken place by the driver of the offending Lorry bearing Registration No.KA-02-7747. It is also clear from the contents of the said FIR and Complaint that, there is no delay as such in lodging Ex.P.2 and Ex.R.4 Complaint by the driver of the Auto Rickshaw in respect of the said road traffic accident, who is an eye witness of the accident in question.
18. Ex.P.6 Wound Certificate relating to Fortis Hospital disclosed that, the male person, namely, Mayad was brought to the said Hospital with a history of road traffic accident, which said to have been caused on 13.01.2011, who was aged 20 years and on examination on 13.01.2011 at 9.20 p.m., it is found that, he had sustained lacerated wound over neck, which is simple in nature. The said Ex.P.6 Wound Certificate is not relating to Sri. Chikkaramaiah @ Chikkaramu S/o. Ramaiah. It is relating to Mayad aged 20 years. Therefore, the said Ex.P.6 Wound Certificate produced by the Petitioners cannot be taken into for consideration and as such, it is discarded.
19. The contents of Ex.P.16 and Ex.R.11 Wound Certificate disclosed that, the deceased Chikkaramaiah, aged 40 years was SCCH-7 24 M.V.C.No.1929/2014 brought to Fortis Hospital on 13.01.2011 at 9.40 p.m., with a history of road traffic accident said to have been caused on 13.01.2011 at 9.15 p.m., and on examination, it is found that, he had sustained injuries, i.e., lacerated wound over frontal region measuring 2 cms X 0.5 cms, which is simple in nature. From this, it appears that, in the said road traffic accident, the Petitioner had sustained simple injury.
20. The contents of Ex.P.7 Injured Statement relating to Chikkaramaiah, Ex.R.8 Statement of Mahimaraj @ Mayed S/o. Govindaswamy, Ex.R.9 Statement of Puttaswamy S/o. Nanjegowda and Ex.R.10 Statement of Chikkaramaiah S/o. Ramaiah disclosed that, the said road traffic accident was taken place due to very high speed, rash and negligent manner of driving of the offending Lorry bearing Registration No.KA-02-7747 and there was no negligence on the part of the driver of the Auto Rickshaw bearing Registration No.KA-02-A-2969, i.e., the complainant and in the said road traffic accident, the deceased Sri. Chikkaramaiah @ Chikkaramu S/o. Ramaiah had sustained injuries and the offending Lorry bearing Registration No.KA-02- 7747 as well as its driver, are very much involved in the said road traffic accident.
21. The contents of Ex.P.10 Emergency Case Records and Ex.P.15 Case Sheet of Nimhans Hospital disclosed that, in the said road traffic accident, the deceased had sustained mild head injury and no intra crovel hemotoma and no skull fracture.
SCCH-7 25 M.V.C.No.1929/201422. The contents of Ex.P.18 Case Sheet of Victoria Hospital disclosed that, the deceased referred from Nimhans Hospital to Victoria Hospital and he was admitted on 14.01.2011 and on examination, it is found that, he had sustained mild head injury and conservative management given to him.
23. The contents of Ex.P.19 MLC Register of Victoria Hospital also disclosed that, the deceased was referred from Nimhans Hospital to Victoria Hospital with a history of road traffic accident on 13.01.2011 at 9-15 p.m., which caused near Malathahalli and at the time of admission, he was conscious and on examination, it is found that, he had sustained facial/head injury.
24. The contents of Ex.P.3 and Ex.R.5 Charge Sheet disclosed that, since during the course of investigation, it is found that, due to high speed, rash and negligent manner of driving of the offending Lorry bearing Registration No.KA-02-7747, by its driver itself, the said road traffic accident was taken place on 13.01.2011 at 9.00 P.M., on Ullal Main Road, which was proceeding from Ring Road towards Ullal Upanagar, which dashed to the Auto Rickshaw bearing Registration No.KA-02-A-2969, which was coming on the opposite direction, near Medi Plus Medical Shop and due to the said impact, the Auto Rickshaw turned turtle down and caused damages and the complainant, who was a driver of the said Auto Rickshaw and the said deceased had sustained simple injuries and grievous injuries and as such, after thorough investigation, the Investigating Officer has filed a charge sheet as against the driver of the offending Lorry for the SCCH-7 26 M.V.C.No.1929/2014 offences punishable under Section 279 and 337 of IPC. There is no allegation leveled by the Investigation Officer in Ex.P.3 Charge Sheet as against the Complainant, who was a driver of the said Auto Rickshaw, about his negligence in the commission of the said road traffic accident.
25. The contents of Ex.R.6 Order Sheet of C.C.No.176/2011 and Ex.R.7 Substance of Acquisition further clearly disclosed that, the driver of the offending Lorry has pleaded guilty and paid fine of Rupees 1,500/- for the offences punishable under Section 279 and 337 of IPC in C.C.No.176/2011, which is relating to the accident in question.
26. From these material evidence, it is made crystal clear that, the entire negligence is on the part of the driver of the offending Lorry bearing Registration No.KA-02-7747 in the commission of the said road traffic accident and there was negligence on the part of the Complainant, who was a driver of the Auto Rickshaw bearing Registration No.KA-02-A-2969, wherein, the deceased was proceeding as a passenger at the time of accident.
27. Further, the P.W.1 in her cross-examination has clearly stated that, the driver of the Goods vehicle pleaded guilty in the criminal case by depositing the fine amount. She has further stated that, her husband expired on 03.05.2013. She has further stated that, the public, who were present at the accidental spot were shifted her husband to the Nimhans Hospital and the accident was taken place at 9-10 p.m., at Ullal Main Road and she SCCH-7 27 M.V.C.No.1929/2014 went to Nimhans Hospital at 10.00 p.m., and her deceased husband had taken treatment in Nimhans Hospital for 20 days and thereafter, her husband was shifted to Victoria Hospital and he was 3 weeks in the said Hospital.
28. Further, the Petitioners have examined the P.W.3, who is an eye witness, i.e., the driver of the Auto Rickshaw bearing Registration No.KA-02-A-2969, wherein, the deceased was traveling as a passenger, i.e., the Complainant, as P.W.3, who has stated in his examination-in-chief that, on 13.01.2011 at about 9- 00 p.m., as he was driving Auto Rickshaw bearing Registration No.KA-02-A-2969 along with one passenger from Ullalu Upanagar towards Ring Road and when it came in front of Mediplus Medical Shop Ullal Upanagara Main Road, at that time, a Lorry bearing Registration No.KA-02-7747 came from opposite side with high speed, in a rash and negligent manner and dashed as against their Auto Rickshaw and due to which, the Auto Rickshaw turned turtle down and the passengers sustained fatal injuries and also he got injuries all over the body and immediately after the accident, he was taken to Fortis Hospital, Bangalore, from there, by an another Auto Rickshaw, later, he was shifted to Nimhans Hospital and he has given complaint before the Police in the Hospital. He has further stated that, the said accident occurred solely due to the rash and negligent driving of the Lorry bearing Registration No.KA-02-7747 by its driver and the Kamakshipalya Police have registered a criminal case in Crime No.6/2011 under Section 279 and 338 of IPC. He has further stated in his cross-
SCCH-7 28 M.V.C.No.1929/2014examination that, at the time of accident, he was driving Auto Rickshaw.
29. The Petitioners have also examined the Doctor as P.W.4, who has stated in his examination-in-chief that, he has treated the patient by name Sri. Chikkaramaiah S/o. Ramaiah, aged about 40 years, R/o Bangalore, who came to him on 01.12.2012 with a history of road traffic accident and had sustained head injury with lacerated wound over the frontal region and he was earlier treated at Fortis Hospital, Nimhans Hospital and Victoria Hospital, Bangalore. He has further stated that, he diagnosed it, as it is a right side hemiplegea with Septicemia and he has treated and informed the patient relatives to get him admitted in Nimhans for further treatment and similarly, the patient came to his clinic on 1st February 2013 and 1st April 2013 for the same complaints with septicemia and treated with medicine and on 10th May 2013 the patient relatives informed him that, the said person Sri. Chikkaramaiah expired in his residence on 3rd May 2013 and accordingly, the Medical Certificate was issued by him as per the request of Smt.Sharada on 16.05.2013 and in his opinion, the cause of death being right sided hemiplegea with septicemia finally ended up with cardio respiratory failure as a result of multiple injuries in a road traffic accident. He has further stated in his cross-examination that, in the months of February and April 2012 or 2013, the patient came before him for examination and he had gone through the earlier medical documents and he had suffered from septicemia and fever and as such, he had given antibiotics and injection and advice SCCH-7 29 M.V.C.No.1929/2014 him to admit in well equipped Hospital, i.e., Nimhans Hospital and Victoria Hospital, for better treatment and the Petitioner Sharadamma herself brought the said patient before him.
30. Further the Petitioners have also examined the eye witness as P.W.6, who has stated in his examination-in-chief that, he has seen the accident on 13.01.2011 at about 9-00 p.m., after purchasing medicines from the medical shop while returning to his house, at that time, an Auto Rickshaw bearing Registration No.KA-02-A-2969 along with one passenger was moving from Ullalu Upanagar towards Ring Road, when it came in front of Medical shop, Ullal Upanagara Main Road, at that time, a Lorry bearing Registration No.KA-02-7747 came from opposite side with high speed, in a rash and negligent manner and dashed as against the Auto Rickshaw and due to which, Auto Rickshaw turned turtle down and the passenger sustained fatal injuries and immediately after the accident, he rushed to the spot and took the injured to Nimhans Hospital in Ambulance and he has given statement before the Police in the Hospital and in the Police Station. He has further stated that, the above accident occurred solely due to the rash and negligent driving of the driver of the Lorry bearing Registration No.KA-02-7747 and the Kamakshipalya Police have registered a criminal case in Crime No.6/2011 under Section 279 and 338 of IPC. He has further stated in his cross-examination that, he was 60 ft away from the accidental spot at the time of accident and others called the Ambulance and not by him and 10 minutes after calling, the Ambulance came to the spot. He has further stated that, there were 3 persons in the Auto and they SCCH-7 30 M.V.C.No.1929/2014 were 2 persons proceeding in the Ambulance to the Hospital and he was brought the said Chikkaramaiah to Fortis Hospital and thereafter, he was shifted to Nimhans Hospital.
31. But, based on the said material evidence adduced by the Petitioners both oral and documentary, it cannot be believed and accept the case made out by the Petitioners as against the Respondents that, the deceased Chikkaramaiah @ Chikkaramu S/o. Ramaiah died on 03.05.2013 due to the accidental injuries itself, which was taken place on 13.01.2011 at 9-00 p.m., as, though the accident was taken place on 13.01.2011 at 9-00 p.m., the said deceased died on 03.05.2013 at his house, i.e., after a lapse of 2 years 3 months and 18 days and admittedly, the Petitioners have not conducted the Postmortem of the dead body to know the cause of the death. Further, as per Ex.R.6 Order Sheet and Ex.R.7 Substance of Acquisition relating to C.C.No.176/2011, it is clearly disclosed that, the criminal case, which was pending in respect of the present road traffic accident in question is closed on 25.03.2011 itself, i.e., much prior to the death of the deceased. Further, the Petitioners have not lodged further complaint before the said jurisdictional Police complaining that, the said deceased died due to the accidental injuries itself and even they have not made requisition or further complaint to the said Police to conduct the Postmortem of the dead body to know the actual cause of the death of the said deceased. In this regard, the P.W.1 in her cross-examination has clearly stated that, after the death of her husband, they have not filed any complaint before the concerned Police by alleging that, due to the said SCCH-7 31 M.V.C.No.1929/2014 accidental injuries, her husband is expired and they have not conducted inquest and postmortem of dead body of her deceased husband through Police by intimating his death due to the alleged accident. More so, no medical documents produced by the Petitioners to show that, since from the date of accident, i.e., on 13.01.2011 till his death, i.e., on 03.05.2013, the deceased had been taking regular treatment and follow-up treatment as per the advise of the treated Doctors. Further, the P.W.1 in her cross- examination has clearly stated that, she does not know when her husband was shifted to home from the Victoria Hospital. She has further clearly stated that, thereafter, no treatment given to her husband. From this evidence of P.W.1, it is made crystal clear that, except initial treatment given to the deceased to the said accidental injuries, after discharge from the Hospital, no further treatment given to the deceased to the said accidental injuries till his death. Further, though the P.W.4 has stated that, he has treated the deceased on 01.12.2012, i.e., nearly after 2 years, to consider the same, neither the Petitioners nor P.W.4 produced any medical documents. Further, the P.W.4 in his cross-examination has stated that, he does not know in which year the accident was occurred and he has gone through the Wound Certificate and he has not verified that, whether the treatment given to the deceased after the accident was not treated as medico legal case. From the said evidence of P.W.4, it appears that, at the time of examination of the deceased by the P.W.4 on 01.12.2012, he has not gone through the previous medical records relating to the said deceased. The P.W.4 has further stated in his cross-examination that, at the time of death of the deceased, he has not present at SCCH-7 32 M.V.C.No.1929/2014 the spot and he had not informed to the family member of the deceased to conduct a postmortem to know about the cause of death. Further, though he has stated in his cross-examination that, in the months of February and April 2012 or 2013, the patient came before him for examination and he had gone through the earlier medical documents and he had suffered from septicemia and fever and as such, he had given antibiotics and injection and advised him to admit in well equipped Hospital, i.e., Nimhans Hospital and Victoria Hospital for better treatment, to consider the same, the P.W.4 has not produced any authenticated documents. Further, from the said material evidence of P.W.4, it is made crystal clear that, after the accident till his death, the deceased had some other health problems and even though the P.W.4 has advised the deceased and his family member to give proper treatment at Nimhans Hospital and Victoria Hospital, they have not given proper and regular treatment to the deceased till his death. Therefore, the negligence is on the part of the Petitioners in giving proper and regular treatment to the deceased even after the accident and discharged from the said Hospitals, till his death. The P.W.4 has further stated in his cross-examination that, about 2 years back, the Petitioner came before him and informed him that, her husband died, but, postmortem was not conducted and he has not examine the dead body of the patient. No doubt, Ex.P.8 Medical Certificate is issued by the P.W.4, which is dated 16.05.2013, i.e., after the death of the deceased, which disclosed that, on 01.12.2012, the P.W.4 has examined the deceased and he diagnosed as it right sided hemipleagea with Septicemia and also on 01.02.2013 and 01.04.2013 for the same SCCH-7 33 M.V.C.No.1929/2014 complaints with Septicemia and treated with medicine and referred to Nimhans Hospital for further treatment and in his opinion, the cause of death being head injury and right sided hemiplegea with Septicemia giving rise to cardio respiratory failure and death. But, based on the contents of Ex.P.8 Medical Certificate, it cannot be accept the oral evidence of P.W.4 and P.W.1 in respect of cause of death is due to the accidental injuries, as, Ex.P.8 Medical Certificate issued by the P.W.4 is after death of the deceased without any inquest and Postmortem examination. Therefore, the said Ex.P.8 Medical Certificate no way helped to the Petitioners to consider their case. If really, the cause of death is due to the accidental injuries, that too, mild head injuries, the Petitioners could have definitely made further complaint before the jurisdictional Police for further investigation by conducting inquest and Postmortem examination. But, no such attempt has been made by the Petitioners, to know the exact cause of death of the deceased. The non-conduct of the Postmortem examination of the dead body of the deceased by the competent Doctors to know the exact cause of death of the said deceased, is very much fatal to consider the case of the Petitioners. Hence, the evidence of P.W.4 and Ex.P.8 Medical Certificate issued by the P.W.4 no way helped to the Petitioners.
32. In the above said discussion, this Tribunal has already observed that, after lapse of 2 year 3 months and 18 days of the accident in question, the deceased died in his house and the Petitioners have not conducted inquest and Postmortem examination to know the cause of the death of the said deceased.
SCCH-7 34 M.V.C.No.1929/2014It is also observed that, except initial treatment to the said accidental injuries from Fortis Hospital, Nimhans Hospital and Victoria Hospital, that too, on 13.01.2011 and 14.01.2011, the deceased had not taken regular treatment and follow-up treatment till his death in the said Hospitals or any other Hospitals, even though the P.W.4 has advised the Petitioners that, the deceased has to take better treatment by admitting as an inpatient at Nimhans Hospital and Victoria Hospital, which is clearly stated by the P.W.4 in his cross-examination. Furthermore, it is clear from the contents of Ex.P.16 and Ex.R.11 Wound Certificates that, in the said road traffic accident, the deceased had only sustained lacerated wound over frental region measuring 2 cms X 0.5 cms, which is simple in nature. The other documents produced by the Petitioners as well as the Respondent No.2 clearly disclosed that, to the said accidental injury, the deceased had taken treatment at Fortis Hospital, Nimhans Hospital and Victoria Hospital on 13.01.2011 and 14.01.2011, i.e., for 2 days only. From this material evidence, it is made crystal clear that, in the said road traffic accident, the deceased had only sustained simple injury and the said injury is not a cause for the death of the said deceased and there is no nexus between the said injury and death.
33. Under the above said facts and circumstances as well as reasons given, this Tribunal has come to the conclusion that, due to very high speed, rash and negligent manner of driving of the offending Lorry bearing Registration No.KA-02-7747 by its driver itself, the said road traffic accident was taken place to the SCCH-7 35 M.V.C.No.1929/2014 deceased Sri. Chikkaramaiah @ Chikkaramu S/o. Ramaiah on 13.01.2011 at 9-00 p.m., and the said offending Lorry bearing Registration No.KA-02-7747 as well as its driver are very much involved in the said road traffic accident and in the said road traffic accident, the said deceased had sustained one simple injury and the cause of death of the deceased Sri. Chikkaramaiah @ Chikkaramu S/o. Ramaiah is not due to the said accidental injury and there is no nexus between the said injury and death. Accordingly, I answered Issue No.1 partly in the Affirmative.
34. ISSUE NO.3 :- The P.W.1 has stated that, at the time of accident, her husband was aged 40 year. The Petitioners have not produced any authenticated documents to consider the actual age of the deceased at the time of accident. But, they have produced true copy of Election Identity Card of the deceased, which is very much available on record, which clearly disclosed that, his year of birth is 1962. The date of accident is on 13.01.2011. From this, it appears that, as on the date of accident, the deceased was 49 years old. Hence, the age of the deceased is considered as 49 year at the time of accident.
35. The P.W.1 has stated that, her deceased was hale and healthy and he was earning Rupees 9,000/- per month by working as an Auto Rickshaw driver. But, she has stated in her cross- examination that, her deceased husband was working as a Watchman near R.V. College and she does not know the name of his employer and he was working in Security Agency Company and she does not know its name. Further the P.W.1 in her cross- examination has stated that, her deceased husband was earning SCCH-7 36 M.V.C.No.1929/2014 Rupees 40,000/- per month. From the said evidence of P.W.1, it appears that, the Petitioners themselves are not definite about the actual avocation and income of the deceased at the time of accident. Further to consider the actual avocation and income of the deceased at the time of accident, the Petitioners have not produced any authenticated documents. In this regard, the P.W.1 has clearly stated in her cross-examination that, she has not produced any documents to show the avocation and income of her deceased husband. Even, the Petitioners have not produced the driving licence relating to the deceased to show that, at the time of accident, he was working as a driver. Hence, the avocation and income as stated by the P.W.1 in respect of the deceased cannot be believed and accept. However, at the time of accident, the deceased was 49 years old and the Petitioner No.1 is a wife and the Petitioner No.2 is a major son, by considering the age and family status of the deceased, this Tribunal feels that, it is just, proper and necessary to consider the notional income of the deceased is of Rupees 8,000/- p.m., at the time of accident. Hence, the notional income of the deceased is considered as Rupees 8,000/- p.m., at the time of accident.
36. The P.W.1 has stated that, her deceased husband was contributing all his earnings to the maintenance of their family and due to the sudden and un-natural death of her husband, they have lost their future dependency, love, affection, company of the deceased and livelihood and now, they are facing lot of financial problems and hence, their lives have become dark and miserable.
SCCH-7 37 M.V.C.No.1929/201437. No doubt, while answering Issue No.1, this Tribunal has already come to the conclusion that, the Petitioner No.1 is a wife and the Petitioner No.2 is a major son of the deceased and as such, they are the legal representatives of the deceased Sri. Chikkaramaiah @ Chikkaramu S/o. Ramaiah and the Petitioner No.1 being a wife of the said deceased is considered as a dependent upon the said deceased at the time of accident. While answering Issue No.2, this Tribunal has further observed and come to the conclusion that, due to very high speed, rash and negligent manner of driving of the offending Lorry bearing Registration No.KA-02-7747 by its driver itself, the said road traffic accident was taken place on 13.01.2011 at 9-00 p.m., which dashed to the Auto Rickshaw bearing Registration No.KA- 02-A-2969, wherein, the said deceased was traveling as a passenger and due to the said impact, the deceased had sustained simple injury and he took treatment to the said accidental injuries for 2 days, at Fortis Hospital, Nimhans Hospital and Victoria Hospital.
38. But, based on the said grounds, the Petitioners are not entitled for the compensation under the different heads of death cases in respect of death of the said deceased, as, while answering Issue No.2, this tribunal has already observed and come to the conclusion that, the cause of the death is not due to said accidental injury. Hence, the Petitioners are not entitled for compensation under different heads of death cases in respect of death of the said deceased.
SCCH-7 38 M.V.C.No.1929/201439. But, the Petitioners are entitled for compensation under other heads of injury cases, as, the deceased had sustained simple injury in the said road traffic accident, which is clear from the medical documents produced by the Petitioners themselves.
40. Based on Ex.P.16 and Ex.R.11 Wound Certificate, this Tribunal has already observed and come to the conclusion that, in the said road traffic accident, the deceased had sustained lacerated wound over frontal region measuring 2 cms X 0.5 cms, which is simple in nature. The Petitioners have not produced any other medical documents to show that, by admitting as an inpatient in the said Hospitals, the deceased took treatment to the said accidental injury. Further, the P.W.1 has not produced any Medical Bills and Medical Prescriptions to show that, from the date of accident till his death, the said deceased had been taking regular treatment and follow-up treatment. Under such circumstances, this Tribunal feels that, it is just, proper and necessary award global compensation of Rupees 50,000/- to the Petitioners in respect of the said simple injury sustained by him in the said road traffic accident, which is reasonable, acceptable and fare and feasible one. Hence, the Petitioners are entitled for global compensation of Rupees 50,000/- along with interest at the rate of 9% per annum on the above said sum from the date of petition till payment.
41. While answering Issue No.2, this Tribunal has already come to the conclusion that, due to very high speed, rash and negligent manner of driving of the offending Lorry bearing Registration No.KA-02-7747 by its driver itself, the said road SCCH-7 39 M.V.C.No.1929/2014 traffic accident was taken place to the deceased Sri. Chikkaramaiah @ Chikkaramu S/o. Ramaiah on 13.01.2011 at 9- 00 p.m., and the said offending Lorry bearing Registration No.KA- 02-7747 as well as its driver are very much involved in the said road traffic accident and in the said road traffic accident, the deceased had sustained one simple injury and the cause of death of the deceased Sri. Chikkaramaiah @ Chikkaramu S/o. Ramaiah is not due to the said accidental injury and there is no nexus between the injury and death of the said deceased.
42. The Petitioners in the cause title of the petition have clearly mentioned that, the Respondent No.1 Sri. Selvam. D. S/o. Late Dharmalingam since deceased represented by his LR's Smt. Vijaya W/o. Selvam. D. is a R.C. Owner and the Respondent No.2 was an insurer of the Lorry bearing Registration No.KA-02-7747 and its Policy No.67030331100200002146 and valid from 26.05.2010 to 25.05.2011. The Respondent No.1 in the Written Statement has stated that, at the time of accident, the Lorry was fully covered under Insurance Policy and moreover the driver of the Lorry was having valid driving licence. The Respondent No.2 Insurance Company has stated in his Written Statement that, he has issued commercial vehicle liability only Insurance Policy bearing No.67030331100200002146 covers from 26.05.2010 to 25.05.2011 in respect of Mitsubishi bearing Registration No.KA- 02-7747 in favour of the Respondent No.1. The same has also been clearly stated by the R.W.1, who is an Assistant Manager of the Respondent No.2, in his examination-in-chief. The Respondent No.2 has also produced Ex.R.2 Insurance Policy along with the SCCH-7 40 M.V.C.No.1929/2014 terms and conditions. There is no allegation leveled as against the driver of the offending Lorry bearing Registration No.KA-02-7747 in Ex.P.3 and Ex.R.5 Charge Sheet that, at the time of accident, he was not having a valid and effective driving licence to drive such class of offending Lorry. From the said material evidence, it is made crystal clear that, at the time of accident, the deceased Sri. Selvam. D. S/o. Late Dharmalingam, who is shown as Respondent No.1 in the present petition, was a R.C. Owner and the Respondent No.2 was an insurer of the said offending Lorry bearing Registration No.KA-02-7747 and the driver of the said Lorry having a valid and effective driving licence to drive such class of offending Lorry. But, based on the said grounds, it cannot be said and come to the conclusion that, Ex.R.2 Insurance Policy issued by the Respondent No.2 in favour of the said deceased Respondent No.1 was valid at the time of accident and as such, both the Respondents No.1 and 2 are jointly and severally liable to pay the above said compensation and interest to the Petitioners and the Respondent No.2 being an insurer shall indemnify the Respondent No.1, namely, Sri. Selvam. D. S/o. Late Dharmalingam, who died on 14.03.2005, which is clear from the examination-in-chief of R.W.1, as, the Insurance Policy issued by the Respondent No.1 is standing in the name of death person. In this regard, the R.W.1 has stated that, their Insurance Company came to know recently that, the Respondent No.1 died on 14.03.2005 and since from 2005, the LRs not transferred the R.C. of the said vehicle to their names and without disclosing the death of owner, they are renewing the policy in the dead person's name all these 9 years and they have not given any information to their SCCH-7 41 M.V.C.No.1929/2014 Insurance Company regarding the death of the Respondent No.1 Selvam and hence, it is a void contract and not enforceable and the Condition No.8 of the Policy clearly states that, the policy will be lapsed immediately within 3 months from the date of death or expiry of policy, whichever is earlier. The same has not been disputed by the legal representatives of the said deceased R.C. Owner, by entering into the witness box. Though the legal representative of the said Respondent No.1 by filing the Written Statement has contested the case of the Petitioner, she has not chosen to stepped into the witness box to substantiate her defence. From the said oral evidence of R.W.1 as well as contents of Ex.R.2 Insurance Policy and its terms and conditions, it clearly goes to show that, the said contract of insurance was taken place by the Respondent No.2 with a deceased R.C. Owner of the offending Lorry bearing Registration No.KA-02-7747. Even, the legal representatives of the deceased Respondent No.1 have not transferred Ex.R.2 Insurance Policy in their names. Therefore, it can be safely held that, the said contract of insurance as against the dead person is a void contract and hence, it cannot be enforceable. Therefore, the Respondent No.2 is not liable to pay any compensation to the Petitioners. The legal representatives of the deceased Respondent No.1, i.e., Smt. Vijaya W/o. Selvam.D., whose name is shown as the legal representative of the deceased Respondent No.1, in the cause title of the petition, is liable to pay the above said compensation and interest to the Petitioners, as a legal representative of the said deceased R.C. Owner of the Lorry bearing Registration No.KA-02-7747. Hence, the petition filed by the Petitioners as against the legal representatives of the SCCH-7 42 M.V.C.No.1929/2014 Respondent No.1 is liable to be allowed and it is liable to be dismissed as against the Respondent No.2. In view of the above said reasons and findings on Issues, the principles enunciated in the decisions cited by the Learned Counsel appearing for the Petitioners are applicable to the present facts and circumstances of the case on hand, only to some extent. Hence, Point No.3 is answered accordingly.
43. POINT 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, 1988, is hereby partly allowed with costs as against the Respondent No.1, i.e., Smt. Vijaya W/o.
of Selvam. D. The petition filed by the Petitioners under Section 166 of the Motor Vehicles Act, 1988, is hereby dismissed without costs as against the Respondent No.2.
The Petitioners are entitled for global compensation of Rupees 50,000/- with interest at the rate of 9% p.a. from the date of the petition till the SCCH-7 43 M.V.C.No.1929/2014 date of payment, from the Respondent No.1.
The Respondent No.1, i.e., Smt. Vijaya W/o. of Selvam.D., 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 90:10.
In the event of deposit of compensation and interest, entire shares relating to the Petitioners No.1 and 2 shall be released in their respective names through account payee cheques, on proper identification.
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 17th day of August, 2016.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
SCCH-7 44 M.V.C.No.1929/2014ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONERS :-
P.W.1 : Smt. Sharada
P.W.2 : Sri. Rudraradhya
P.W.3 : Sri. Yadavamurthy
P.W.4 : Sri. Dr. R. Hanumanthachari
P.W.5 : Smt. Lakshmidevi
P.W.6 : Sri. M. Nagaraju
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 Charge Sheet
Ex.P.4 : True copy of Spot Hand Sketch
Ex.P.5 : True copy of MVI Report
Ex.P.6 : True copy of Wound Certificate
Ex.P.7 : True copy of Injured Statement
relating to Chikkaramaiah
Ex.P.8 : Medical Certificate
Ex.P.9 : NIMHANS Hospital Card relating to
Chikkaramaiah
Ex.P.10 : Emergency Case Record
Ex.P.11 : Notarised Xerox copy of Death
Certificate relating to Chikkaramu
Ex.P.12 : Notarised Xerox copy of Election
Identity Card relating to Sharada
Ex.P.13 : Notarised Xerox copy of Ration Card
Ex.P.14 : Authorisation Letter dated
26.11.2014
Ex.P.15 : Case Sheet
Ex.P.16 : True copy of Wound Certificate
Ex.P.17 : Authorisation Letter dated
19.03.2015
Ex.P.18 : Case Sheet
Ex.P.19 : True copy of MLC Register
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
R.W.1 : C.K. Surya Prakash
SCCH-7 45 M.V.C.No.1929/2014
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
Ex.R.1 : Authorization Letter dated 30.03.2015
Ex.R.2 : True copy of Insurance Policy along
with Terms and Conditions
Ex.R.3 : True copy of FIR
Ex.R.4 : True copy of Complaint
Ex.R.5 : True copy of Charge Sheet
Ex.R.6 : Certified copy of Order Sheet
of C.C.No.176/2011
Ex.R.7 : Certified copy of Substance of
Acquisition
Ex.R.8 : Certified copy of Statement of Mahimraj
@ Mayed S/o. Govindaswamy
Ex.R.9 : Certified copy of Statement of
Puttaswamy S/o. Nanjegowda
Ex.R.10 : Certified copy of Chikkaramaian
S/o. Ramaiah
Ex.R.11 : True copy of Wound Certificate
Ex.R.12 : Returned Unserved Postal Cover
along with Postal Acknowledgment
Ex.R.13 : Office copy of Letter dated 06.06.2014
Ex.R.14 : Postal Receipt
Ex.R.15 : Office copy of Letter dated 04.03.2015
Ex.R.16 : True copy of General regulations
(Relevant GR No.2)
(INDIRA MAILSWAMY CHETTIYAR)
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.