Bangalore District Court
Vijaya Chaturvedi vs Shanmuga.K on 1 February, 2024
KABC020061232019
IN THE COURT OF XIX ADDL.JUDGE AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, COURT OF SMALL CAUSES
BENGALURU
(SCCH-17)
PRESENT: SRI. KANCHI MAYANNA GOUTAM B.A.L., LL.M.,
XIX ADDL. JUDGE,
Court of Small Causes & ACMM,
BENGALURU
Dated: This the 1 st day of February- 2024
M.V.C.No.1309/2019
Petitioners 1. Smt. Vijaya Chaturvedi,
W/o. Late Vachespati Chaturvedi,
Aged about 32 years,
2. Vaikunth Chaturvedi,
S/o.Late Vachespati Chaturvedi,
Aged about 3 years,
3. Lakhan Prasad Chaturvedi,
S/o. Ramnath Prasad Chaturvedi,
Aged about 60 years,
2 SCCH-17 MVC 1309/2019
4. Krishna Chaturvedi,
W/o. Lakhan Prasad Chaturvedi,
Aged about 51 years
All are residing at
Ward No.22, infront of Vetnary
Hospital, Baraipura Chouraha
Vidisha, Vidisha Vidisha,
Madhya Pradesh - 464 001
(By Pleader Smt. Bhavya S.
Adv.,)
V/s
Respondents 1.Shanmuga K.
S/o. Late Kannappa,
# 80, 37th B cross, 26th main,
9th block, Jayanagar,
Bangalore - 560 069
(Exparte)
2. Reliance Gen. Ins. Co. Ltd.,
5th floor, Centenary building,
28, M.G. Road, Bangalore - 560 001
(By Pleader Sri H.C. Betsur Adv.)
3 SCCH-17 MVC 1309/2019
J UD GME N T
This judgment is emerged consequent upon the
petition filed by the petitioners U/S 166 of M.V. Act,
claiming compensation on account of death of the
Vachespati Chaturvedi, in a road accident.
2. The case of the petitioners, in brief, are as
follows:
On 04.12.2018 at about 9.00 p.m., the deceased
was riding the two wheeler bearing No. KA-01-EW-1032
on lay bay elevated fly over, Hosur road, Bengaluru city,
at that time the driver of tipper lorry bearing No. KA-51-
D-3959 driven by its driver in a rash and negligent
manner and dashed against the motor cycle from behind.
Due to which, the deceased sustained injuries.
Immediately after the accident, the deceased with the
help of public shifted to Sparsh Hospital, but he
4 SCCH-17 MVC 1309/2019
succumbed to the injuries on the way to the hospital.
The petitioners have spent amount towards medical and
other incidental expenses. The deceased was working as
Asst. Manager at Genpact India Pvt. Ltd., Surya Park and
was earning Rs.80,000/- per month and was contributing
his entire income to his family. Due to the untimely death
of deceased the petitioners have suffered mentally and
physically, they have lost their bread earner.
The petitioner No.1 is the wife, petitioner No.2 is the
minor son and petitioner No.3 & 4 are the parents of the
deceased, have lost their beloved care taker. The
respondents are the owner and insurer of the offending
vehicle are jointly severally liable to pay the compensation
to the petitioners. Hence prays to award compensation of
Rs.1,50,00,000/- with interest.
5 SCCH-17 MVC 1309/2019
3. After service of notices, respondent No.1 remained
absent hence, placed exparte. Respondent No.2 appeared
and filed written statement by denying issuance of policy
to the tipper lorry bearing No. KA-51-D-3959 and the
liability of this respondent, if any, is subject to terms and
conditions of the policy. Further contended that at the
time of accident the driver of the offending vehicle was not
holding valid and effective driving licence. The accident
was occurred due to negligence on the part of deceased
himself. Further denied the age, avocation and income of
the deceased. The compensation as claimed by the
petitioners is highly excessive and exorbitant. Hence the
respondent No.2 prays to dismiss the petition against it.
4. On the basis of the rival contentions, the
following issues were framed by this court:
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ISSUES
1. Whether the petitioners prove that
Sri. Vachespati Chaturvedi, S/o.
Lakhan Prasad Chaturvedi died due
to injuries sustained by him in a
motor vehicle accident that was
taken place on 4.12.2018 at about
9.00 p.m. on lay bay Elevated fly
over, Hosur main road, Bangalore,
involving lorry bearing No. KA-51-D-
3959 belonging to respondent No.1
and the said vehicle insured with
second respondent?
2. Whether the petitioners prove that,
the accident has mainly occurred
due to rash and negligent driving of
the driver of the said vehicle?
3. Whether the petitioners prove that
they are the only legal heirs and
dependents of deceased?
4. Whether the petitioners are entitled
for compensation as prayed for? If
so, what rate and from whom?
5. What order or award?
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5. In order to prove the claim petition, the first
petitioner is examined as PW.1 and got marked the
documents at Ex.P.1 to Ex.P.20. Also examined two
witness as PW.2 & 3, through them got marked Ex.P21
to 23. Respondent No.2 examined its official as RW.1,
through him got marked Ex.R1 & 2.
6. I have heard the arguments on both sides and
perused the material evidence that is available on record.
7. My findings on the above issues are as under.
Issue No.1: Partly in the affirmative,
Issue No.2: Partly in the affirmative
Issue No.3: In the affirmative,
Issue No.4: Partly in the affirmative,
Issue No.5: As per final orders
for the following.-
8 SCCH-17 MVC 1309/2019
REASONS
ISSUE NO.1 & 2:
8. As these two issues are inter connected they
are taken together for common discussion to avoid
repetition of the facts.
The petitioners to prove their claim have produced
certified copies of FIR with complaint, police intimation,
sketch, spot mahazar, IMV report, PM report, inquest
report, charge sheet and notice u/s. 133 of MV Act,
which are marked under Ex.P.1 to 9.
9. As per the documents, produced by the
petitioner Ex.P1- FIR is came to be registered on the basis
of first information given by the ASI of Hulimavu Traffic
Police Station. In the said complaint, the Asst. Sub-
Inspector of the Hulimavu Traffic Police station stated that
while he was in beat in the jurisdiction of his police
9 SCCH-17 MVC 1309/2019
station he has received the information about an accident
and thereafter he has visited the alleged accident spot and
found and reported the accident to the police station. The
Ex.P2 is the police intimation sent by Sparsh Hospital to
the Hulimavu Traffic Police station.
10. The Ex.P3 is rough sketch and Ex.P4 is spot
mahazar. As per the contents of Ex.P3 & 4 spot mahazar
and rough sketch, while the deceased proceeding in his
bike bearing No. KA-01-EW-1032 has lost his control and
fell down from his bike and in the same time one
unknown tipper lorry has ran over the deceased. Further
on perusal of Ex.P5 IMV report there is no damages were
found on the tipper lorry bearing No. KA-51-D-3959. But
the right side of the body and break liver has got damaged
in the bike of the deceased. Thereby, it is vehemently
argued by the learned counsel for the respondent No.2
10 SCCH-17 MVC 1309/2019
insurance company that the deceased himself fell on the
road by losing his control as such, there is no negligence
on the part of the driver of the lorry bearing No. KA-51-D-
3959. It is also argued that the lorry bearing No. KA-51-D-
3959 is falsely implicated in the present case even though
the said lorry is not involved in the said accident.
11. It is very important note that the respondent
No.2 insurance company has taken two major defence
firstly, non involvement of the tipper lorry bearing KA-51-
D-3959 and secondly if the lorry bearing No. KA-51-D-
3959 even though involved in the alleged accident there is
no negligence on the part of driver of the lorry bearing No.
KA-51-D-3959.
12. If we examine the first defence raised by the
respondent No.2 insurance company, no doubt that at the
time of registration of FIR, the information is given
11 SCCH-17 MVC 1309/2019
alleging the negligence of the unknown tipper lorry.
Thereafter at the time of Ex.P3 & 4 rough sketch and
mahazar also the offending vehicle is shown as not traced
vehicle. Initially the FIR is registered on the basis of
information given by the ASI of Hulimavu Traffic police
station who is not an eye witness.
13. During the course of investigation the IO has
conducted the investigation and traced offending vehicle
and charge sheeted against the driver of the lorry bearing
No. KA-51-D-3959. The owner of the the lorry bearing
No. KA-51-D-3959 is made as respondent No.1 in this
case and also made as witness No.10 in the charge sheet
filed by the IO. The respondent No.1 remained exparte in
this case and has not chosen to deny the allegation of the
petitioners. The respondent No.2 insurance company
examined its Associate Legal Manager who is also not an
12 SCCH-17 MVC 1309/2019
eye witness to the incident. Admittedly in the Ex.P5 IMV
report no damages were found on the the lorry bearing
No. KA-51-D-3959. But the damages were found in the
right side of the bike bearing No. KA-01-EW-1032. The
offending vehicle i.e., the lorry bearing No. KA-51-D-3959
is a heavy tipper vehicle and the vehicle of the deceased
being the two wheeler has got only minimum damages.
As per the contents of Ex.P2 and 4 the left side wheel of
the offending vehicle has ran over on the chest of the
deceased, when the deceased has fell down to his right
side by losing the control on his bike.
14. Thus it is clear that at no point of time the lorry
bearing No. KA-51-D-3959 has dashed against the vehicle
of the deceased or to any hard object. Hence, there is
chances of damages to the the lorry bearing No. KA-51-D-
3959. The damages of the bike bearing No. KA-01-EW-
13 SCCH-17 MVC 1309/2019
1032 is also depicts that the said damages is due to fall of
the deceased by losing his control. Hence, merely because
of no damages are found on the lorry bearing No. KA-51-
D-3959, it cannot be held that the said lorry bearing No.
KA-51-D-3959 is not involved in the accident.
15. Coming to the another stretch of the defence
taken by the respondent No.2 insurance company that no
negligence on the part of the driver of the lorry bearing
No. KA-51-D-3959, if we verified the contents of Ex.P1
FIR and P.4 spot mahazar, initially the deceased has fell
down on the right side of the road by losing his control on
his bike bearing No. KA-01-EW-1032. This fact is very
much available in Ex.P2 first information. If we perused
the Ex.P3- rough sketch the accident spot is on the fly
over that too on the lay bye. In the lay bye there will be
more space is available comparing to the regular road.
14 SCCH-17 MVC 1309/2019
The same is forthcoming in the Ex.P3 rough sketch. Along
with this if we perused the Ex.P6 post mortem report and
Ex.P7 inquest wherein the injuries found on the body of
the deceased were mentioned. Some of the major injuries
are near the front and upper abdomen, more on right side,
abrasion originally placed over the left side of chest,
abrasion over the left arm and multiple abrasions over
front right lower abdomen. These injuries shows that the
the lorry bearing No. KA-51-D-3959 has ran over on the
body of the deceased. These injuries are not due to the
falling of the deceased by his bike but it is due to the
running of the lorry over the body of the deceased.
16. No doubt that at the time of drawing of Ex.P3 &
4 rough sketch and spot mahazar no blood stains are
found in the alleged spot or on the vehicles. Ex.P1 FIR is
registered on 5.12.2018, and the accident was on
15 SCCH-17 MVC 1309/2019
4.12.2018. The Ex.P3 & 4 rough sketch and mahazar was
drawn on 5.12.2018 I..e, after one day of incident and
Ex.P5 IMV report is drawn on 7.12.2018 i.e., after three
days of incident. Hence, expecting the blood stains in the
alleged accident place or on the vehicle is not looks
plausible. The contents of mahazar and the injuries found
on the deceased as per Ex.P4 post mortem holds that the
lorry has ran over on the body of the deceased. When the
deceased has fell down on the road, the lorry bearing No.
KA-51-D-3959 has ran over on the deceased which shows
that the the lorry bearing No. KA-51-D-3959 being the
heavy vehicle was not maintaining the safe distance and
safe speed. If the driver of the lorry bearing No. KA-51-D-
3959 was in a speed of controling the vehicle by
maintaining the safe distance the death of Sri.
Vachespathi Chaturvedi is not going to be happen. Thus
16 SCCH-17 MVC 1309/2019
it can be held that the driver of the lorry bearing No. KA-
51-D-3959 was not in a safe distance and was not
maintaining the controllable speed of the heavy vehicle
which is resulted in the death of the deceased.
17. No doubt that the main cause for the alleged
accident is falling of the deceased from the bike by losing
his control over the said bike. But if the driver of the lorry
bearing No. KA-51-D-3959 was maintaining safe distance
with controllable speed of the truck, the truck is not going
to ran over the deceased once he fell down. Hence, this
tribunal of the view that for the death of the deceased, the
negligence on the part of the lorry bearing No. KA-51-D-
3959 is more than the contributory negligence of the
deceased. Hence, by applying the same the deceased
contributed negligence of 15% towards the accident and
the driver of he lorry bearing No. KA-51-D-3959 has major
17 SCCH-17 MVC 1309/2019
remaining contribution towards the cause and death of
the deceased. Accordingly, I answer issue No.1& 2 in
the partly affirmative.
ISSUE NO.3
18. As held herein above, the petitioners have proved
that Vachespati Chaturvedi died on 4.12.2018 due to the
injuries sustained in RTA, which is caused by respondent
No.1 in the manner discussed in issue No.1 & 2.
19. As contended in the petition, that the petitioner
No.1 is the wife, petitioner No.2 is the minor son and
petitioner No.3 & 4 are the parents of the deceased. At the
time of cross- examination of PW.2 who is he father of the
deceased admitted that the petitioner No.1 has got
remarried and the petitioner No.2 who is the son of the
deceased is residing with his mother i.e.., petitioner No.1.
The respondents do not specifically deny the relationship
18 SCCH-17 MVC 1309/2019
of petitioners with deceased. The petitioners to prove their
relationship with the deceased, have produced the
notarized copies of Aadhar cards of petitioners which are
marked at Ex.P.15,16 & 21. During the course of
recording the evidence the notarized copies of Aadhaar
cards are compared with the original documents and
found correct.
20. As per these documents the petitioner No.1 is
the wife, petitioner No.2 is the minor son and petitioner
No.3 & 4 are the parents of the deceased, but the
respondents do not dispute the relationship of the
petitioners with deceased. At the time of filing of the
petition the petitioner No.1 was not remarried. She filed
the petition as wife of the deceased Vachespathi
Chaturvedi. The dependency has to be considered at the
time of death of the deceased. The petitioner No.1
19 SCCH-17 MVC 1309/2019
remarried after filing of the petition. As on the date of
filing of petition, the petitioner No.1 was not married and
was dependent on deceased.
21. The petitioner No.2 being the son of the
deceased, residing with his mother after the remarriage of
his mother. But this point will not empowers the tribunal
to hold that the petitioner No.2 is not a dependent of the
deceased. The petitioner No.2 being the minor who is
aged about 3 years is dependent of the deceased. The
respondents do not dispute the Aadhar cards produced by
the petitioners. The respondents have not adduced any
evidence to disprove the relationship of the petitioners
with the deceased.
22. In the absence of contradictory evidence the
evidence of the petitioners is to be accepted and it is
considered that, petitioners are the dependents of
20 SCCH-17 MVC 1309/2019
deceased and they are entitled for compensation.
Accordingly, I answer issue No.3 In the affirmative.
ISSUE No.4
23. As held herein above, the petitioners proved
that Vachespati Chaturvedi died on 4.12.2018 due to the
injuries sustained in RTA, which is caused by the driver
of the tipper lorry bearing Reg. No. KA-51-D-3959.
24. Now the quantum of compensation is to be
decided. The petitioners have not produced Aadhaar card
of the deceased. But as per driving licence and passport
produced at Ex.P11 & 12- the deceased was born on
21.07.1985, the accident took place in the year-2018, If it
is considered, as on the date of the accident the age of the
deceased was 33 years. No other documents are produced
by the petitioners to over come this contradictions. Hence
21 SCCH-17 MVC 1309/2019
this court is accepting the age of the deceased as 33
years.
25. As stated in the petition deceased was working
as Asst. Manager at Genpact India Pvt. Ltd., and earning
Rs.80,000/-. To prove the said fact, the petitioners have
produced appointment letter as per Ex.P17. Also
produced 3 salary slips for the months of September 2018
to November 2018. In the month of November 2018, the
deceased was having gross salary of 62,410/-. The
petitioners have also produced Form No.16 as per Ex.P19.
As per the said documents, in the month of November,
2018 the deceased was having gross salary of Rs.62,410/-
and the annual income comes to Rs.7,48,920/-.
26. As per Sarala varma case the proper multiplier
applicable to the age of deceased is 16. Since the
deceased left his wife, son and parents, it is considered
22 SCCH-17 MVC 1309/2019
that, there are four dependents of deceased, hence 1/4th
is to be deducted towards his personal expenses, then the
total loss of dependency would be Rs.89,87,040/-
(Rs.62,410/- X 12 X 16= Rs.1,19,82,720/- minus 1/4th
= Rs.29,95,680/-).
27. In Civil Special leave petition (Civil
No.25590/2014 dated 31.10.2016 (National
Insurance Company Ltd., Vs. Pranay Sethi & others),
the Hon'ble Supreme Court has held that "While
determining the income, in case the deceased was self-
employed or on a fixed salary, an addition of 40% of the
established income should be the warrant where the
deceased was below the age of 40 years. An addition of
25% where the deceased was between the age of 40 to 50
years and 10% where the deceased was between the age
of 50 to 60 years should be regarded as the necessary
23 SCCH-17 MVC 1309/2019
method of computation. The established income means
the income minus the tax component."
28. In another reported decision in Civil Appeal
Nos.19-20 of 2021 in between Kirti and Another , V/s
Oriental Insurance Company Ltd., as follows;
"When it comes to the second category of cases,
relating to notional income for non-earning victims, it
is my opinion that the above principle applies with
equal vigor, particularly with respect to homemakers.
Once notional income is determined, the effects of
inflation would equally apply. Further, no one would
ever say that the improvements in skills that come
with experience do not take place in the domain of
work within the household. It is worth nothing that,
although not extensively discussed, this Court has
been granting future prospects even in cases
24 SCCH-17 MVC 1309/2019
pertaining to notional income, as has been
highlighted by my learned brother, Surya Kant, J., in
his opinion (Hem Raj V. Oriental Insurance Company
Limited, (2018) 15 SCC 654: Sunita Tokas V. New
India Insurance Company Ltd., (2019) 20 SCC 688)".
29. As per the above decisions 40% out of loss of
dependency has to be granted towards future prospects
which would Rs.35,94,816/-.
30. The petitioners are entitle for Rs.44,000/- for
loss of consortium, further I inclined to award a sum of
Rs.27,500/- towards loss of love and affection,
Rs.16,500/- towards loss of estate and Rs.16,500/-
towards funeral expenses (this amount is calculated as
per Pranaya Sethi case with enhanced rate at 10% after
three years).
25 SCCH-17 MVC 1309/2019
The petitioners are entitled for compensation under
the following heads:
1. Loss of dependency Rs. 89,87,040/-
2. Loss of future prospects Rs. 35,94,816/-
3. Loss of consortium Rs. 44,000/-
4. Loss of love and affection Rs. 27,500/-
5. Funeral expenses Rs. 16,500/-
6. Transportation of dead body Rs. 16,500/-
Total Rs. 1,26,86,356/-
31. As it is held that there is 15% contributory
negligence on the part of the deceased, hence the
petitioners are not entitled for 15% of the compensation
which comes to Rs.19,02,953/-. The petitioners are
entitled for remaining 85% of the compensation
amount i.e., Rs.1,07,83,403/-.
32. Liability:- The respondent No.1 and 2 are the
insurer and owner of the tipper lorry bearing No.KA-51-
26 SCCH-17 MVC 1309/2019
D-3959. The respondent No.2 in its written statement has
denied the issuance of policy to the offending vehicle.
33. But the respondent No.2 examined its official
as RW.1 and got marked Ex.R1 & 2. As per Ex.R.2- copy
of insurance policy, as per the said document the
offending vehicle was having valid insurance policy as on
the date of accident. The respondent No.2 insurance
company even though has taken the contention of driving
of lorry by the person who has no valid driving licence,
has not adduced any evidence in this regard. No such
offences are invoked against the driver of the lorry in the
criminal case. Hence, the respondent No.1 and 2 are
jointly and severally liable to pay the compensation to the
petitioners and the respondent No.2 insurance company
shall indemnify the compensation on behalf of the
respondent No.1. The petitioners are entitle for the
27 SCCH-17 MVC 1309/2019
compensation along with the interest at the rate of 6%
p.a. Accordingly, I answer Issue No.4 partly in the
affirmative.
ISSUE NO.5:-
34. For the foregoing reasons, I proceed to pass the
following:
ORDER
The petition filed by the petitioners U/s. 166 of the Motor Vehicles Act is hereby partly allowed with cost.
The petitioners are entitled for total compensation amount of Rs.1,07,83,403/- (Rupees One crore seven lakhs eighty three thousand four hundred and three only) with interest at the rate of 6% p.a.,. from the date of petition till the realization from respondents.
The petitioners No.1 to 4 are entitled for the compensation at the ratio of 10:60:10:20. The respondent No.2 is directed to deposit the compensation amount within 60 days from the date of this order.
28 SCCH-17 MVC 1309/2019Out of awarded amount of petitioner No.1, 3 & 4, 50% shall be released to petitioner No.1, 3 & 4 on their proper identification and remaining 50% shall be kept in Fixed Deposit in their names in any Scheduled Bank, for a period of three years.
The entire amount awarded to petitioner No.2 shall be kept in Fixed Deposit in his name in any Scheduled Bank, till he attains the age of majority.
Advocate fee is fixed at 1,500/-. Draw the award accordingly.
(Dictated to the stenographer directly on the computer, corrected by me and then pronounced in open court on this the 1 st day of February, 2024).
(KANCHI MAYANNA GOUTAM) XIX ADDL.SMALL CAUSES JUDGE & ACMM, BANGALORE.
ANNEXURE List of witnesses examined on petitioner's side:
PW.1 Smt. Vijaya Chathurvedi PW.2 Lakhan Prasad Chaturvedi PW.3 Pradeep S. 29 SCCH-17 MVC 1309/2019 List of documents exhibited on petitioner's side:
Ex.P1 FIR with complaint Ex.P2 Police intimation Ex.P3 Sketch Ex.P4 Spot mahazar Ex.P5 IMV report Ex.P6 PM report Ex.P7 Inquest report Ex.P8 Charge sheet Ex.P9 Notice u/s. 133 of MV Act Ex.P10 Reply notice
Ex.P11 Notarised copy of driving licence of deceased Ex.P12 Notarised copy of passport of deceased Ex.P13 Notarised copy of post- graduation marks cards of deceased Ex.P14 Notarised copy of post-graduation certificates of deceased Ex.P15 Notarised copy of Aadhaar card of 1st petitioner Ex.P16 Notarised copy of Aadhaar card of 2nd petitioner Ex.P17 True copy of appointment letter Ex.P18 Salary slips ( 3 in nos.) Ex.P19 True copy of Form 16 for the year 2015-2016, 2016- 2017 and 2017-2018 ( 3 in nos.) Ex.P20 True copy of bank statements period of 01.01.2016 to 31.12.2018 Ex.P21 Notarised copies of 2 Aadhaar cards 30 SCCH-17 MVC 1309/2019 Ex.P22 Authorisation letter Ex.P23 Statement of account of Vachespati Chaturvedi List of witnesses examined on respondents' side:
RW.1 Ibrahim Mujawar List of documents exhibited on respondents' side:
Ex.R1 Authorisation letter Ex.R2 Insurance policy XIX ADDL.SMALL CAUSES JUDGE & ACMM, Bengaluru.