Bangalore District Court
Anasuya vs Reliance Gen Ins Co Ltd on 26 November, 2024
KABC020211872019
IN THE COURT OF XXI ADDL.SMALL CAUSE JUDGE AND
MOTOR ACCIDENT CLAIMS TRIBUNAL, BANGALORE.
(SCCH-23)
DATED THIS THE 26th DAY OF NOVEMBER - 2024
PRESENT: Sri. Shreyansh Doddamani
B.Com. LL.B (Spl),
XXI ADDL. SCJ & ACJM
MEMBER - MACT, BENGALURU.
MVC. No.4982/2019
PETITIONER/S 1. Smt. Anasuya,
Aged about 61 years,
W/o Shanth Shetty. M.K,
2. Sri. Shanth Shetty. M.K,
Aged about 63 years,
S/o Krishna Shetty. K.M.
Both are R/at :
Muthurayana Hosahalli village,
Hanahalli Post,
Halagudu Hobli,
Hunsur Taluk,
Mysore District-571103.
(By Sri.V.S. Ananda, Advocate)
Vs.
RESPONDENT/S 1) Reliance Gen.Ins.Co.Ltd.,
S.M. Tower, 2nd Floor,
11th Main, 3rd Block,
SCCH-23 2 MVC. No.4982/2019
Jayanagara, Bengaluru-11.
Policy No.140521923340002572
Valid from 02.02.2019 to 01.02.2020
(By Sri. N. Mahesh Prasad, Advocate)
2) Mr. Nikethan,
S/o Nagaraju,
Aged about 21 years,
No.99, C/o Vasudev Swamy Building,
Behind Anjaneya Temple,
Chudasandra,
Sarjapura Hobali,
Anekal Taluk,
Bengaluru District-560106.
(By Sri.H.N. Manjunatha, Advocate)
3) Mr. Noorulla,
S/o Late Ammersab,
Aged about 33 years,
NO.7/1A, Jayaram Reddy Layout,
Near Lakasa Hotel,
Kasavanahalli,
Sarjapura Main road,
Bengaluru-560035.
(By Sri.Sachann Kumar, Advocate)
4) Smt. Suma @ Sumalatha,
W/o Ganesh,
Major,
President of Gurukula Littal Champs
International School,
No.377, Opp: Union Bank,
Surya Bakery Main road,
Vijayanagara,
Mysore-570016.
(Exparte)
SCCH-23 3 MVC. No.4982/2019
JUDGMENT
This claim petition is filed under Sec.166 of M.V Act, 1988 seeking compensation for the death caused in a Road Traffic accident.
2. The case of the petitioners in the nutshell is that, on 09.02.2019 at about 3.45 a.m, one Siddalingappa s/o Siddappa was standing in front of the Ibbaluru Junction, Opposite Columbia Asia Hospital, ORR Road, Bengaluru, awaiting for the Bus to go market for buying vegetables. At that time one water Tanker bearing Reg.No.KA-01-AF-2874 driven by its driver from Agara Side, drove the same in rash and negligent manner so as to endanger human life and suddenly applied brake and immediately water tanker turtle and fell on a Honda Activa scooter bearing Reg.No.KA-51-AB-3504 which was riding by deceased by name Veerabhadra. M.S. Due to the terrific impact, the deceased was stuck underneath of the water tanker along with his scooter. Immediately after the accident Siddalingappa and others public rushed to the spot and pulled out the water tanker aside with the help of another tipper and noticed that the said Veerabhadra sustained sever injuries and SCCH-23 4 MVC. No.4982/2019 died on the spot. The driver of the water tanker fled away from the spot of accident. Thereafter the traffic police have shifted the body to St.John's Hospital Bengaluru. Postmortem was conducted and corpse was handed over to the family members, who conducted funeral and other ceremonies by spending substantial amount. The accident was caused due to the sole negligence of driver of water tanker / respondent No.2 which is owned by respondent No.3 and insured by respondent No.1. The respondent No.4 is the wife of deceased, she was left matrimonial house so many years ago and she is already married another person namely Ganesh. Further it is stated that the deceased was working as Booking Clerk and earning Rs.32,000/- p.m and was sole bread earner and was only person in the family, there was no one to look after the petitioners as this old age. It is further submitted that because of death of deceased the petitioners have suffered both financially and emotionally. The respondents No.1 to 3 being the insurer, driver and owner thereof are jointly and severally liable to pay compensation.
SCCH-23 5 MVC. No.4982/2019
3. Notice was duly served to respondent No.4, the respondent No.4 did not appear before this Tribunal. Hence she was placed exparte.
4. Notice was duly served to respondent No.2. Respondent No.2 appeared through his counsel, he failed to contest the matter by filing the written statement.
5. The respondent No.1 filed objections statement admitting the issuance of insurance policy in respect of water tanker bearing Reg.No.KA-01-AF-2847. However the liability if any is pleaded to be subject to the terms and conditions of the policy. Non-compliance of section's 147, 149(2), 134(c), 158(6) of MV Act is pleaded. This respondent specifically and empathically denied the occurrence, mode and manner of accident and also involvement of the vehicle in the accident. Negligence on the part of the driver of its insured vehicle is denied by this respondent. Per contra it is alleged that the deceased who was riding the motorcycle without having a proper lookout at the vehicular movement on the road and the deceased was solely responsible for the occurrence of the accident. In fact deceased was also not wearing helmet and also SCCH-23 6 MVC. No.4982/2019 not possessing valid DL at the time of alleged accident. Without prejudice to the said contention it is averred that the driver of the insured vehicle did not possess valid & effective DL and further the said insured vehicle did not holding valid and effective Permit and FC. Further the police have filed charge sheet for the offences punishable u/s 3(1) r/w 180, 181 of MV Act against the driver of the tanker lorry and the owner of the vehicle. Despite knowing the said fact the owner thereof had handed over its possession to such a driver. On account of willful breach of the terms & conditions of the policy by the insured, the insurance company is not liable to indemnify him. Further contended that the petitioners are called upon to prove their relationship and dependency with the deceased. Further denied all the allegation made in the petition. Hence prayed to dismiss the petition.
6. Notice was duly served to respondent No.3. Respondent No.3 appeared through his counsel by filing written statement rather objections to the main petition contending that the petition itself is not maintainable either law or on facts. This respondent denied negligence on the part of the driver of the SCCH-23 7 MVC. No.4982/2019 water tanker. But contended that the accident was occurred due to sole negligence of the deceased as the deceased without observing any of the traffic rules and regulations and he himself was negligence fo the occurrence of accident. Further denied all the allegation made in the petition. Hence prayed to dismiss the petition.
7. On the basis of the above pleadings the following issues were framed :
ISSUES
1) Whether the Petitioners prove that they are only legal representatives of deceased 'Veerabhadra. S' and were dependent on him ?
2) Whether the Petitioners prove that the deceased succumbed to the injuries sustained in a Road Traffic accident that occurred on 09.02.2019 at about 3.45 a.m, near Ibblur Junction, Columbia Asia Hospital, ORR Road, Bengaluru City, due to the actionable negligence of the driver of HGV Water tanker bearing Reg No.KA-01-AF-2847 ?
3) Whether the petitioners are entitled for compensation ? If so, what is the quantum and from whom ?
4) What order or award ?
8. The Petitioner No.2 examined himself as PW.1. Ex's.P1 to Ex.P.18 & 21 were marked on behalf of the petitioners. Further the petitioners have examined the employer of deceased SCCH-23 8 MVC. No.4982/2019 i.e., Swiggy Limited as PW.2 and through him Ex.P.19 & 20 were marked. In order to prove the defence, the owner of the water tanker / respondent No.3 himself examined as RW.1 and got marked Ex.R.1 & 4 documents. In order to prove the defence, the respondent No.1 got examined the Legal Manager as RW.2, Ex.R.2 & 3 was marked through him.
9. Arguments were addressed on both sides. Perused the entire materials placed on record.
10. My answers to the above issues are as follows:-
Issue No.1 : Partly In the Affirmative
Issue No.2 : In the Affirmative
Issue No.3 : Partly in the Affirmative
Issue No.4 : As per final order
for the following :
REASONS
11. ISSUE NO.2: The occurrence of the accident on the relevant date, time and place is not in dispute. The parties are also not at variance with regard to the factum of the death of the deceased due to the injuries sustained in the said accident. The conflict is with respect to actionable negligence. The petitioners plead that the accident was caused due to the sole negligence of the driver of offending water tanker. Whereas the SCCH-23 9 MVC. No.4982/2019 respondent No.1 and 3 contends that the accident in question occurred because of negligence of the deceased.
12. Mr.Siddagangappa set the criminal law into the motion by lodging Ex.P.2-First information statement. Based on the said FIS, the jurisdictional police registered FIR as per Ex.P.1, investigated the matter and laid charge sheet (Ex.P.9) against the driver & owner of the water tanker for the offences punishable u/s's 279, 304(A) of IPC and u/s 134(A&B), 187, 3(1), 180, 181 of M.V.Act. There is nothing on record to believe that the charge sheet filed by the police is defective or collusive. Though the respondent No.1 & 3 have denied the cause of the accident, they have not let in any cogent evidence to prove their defence or to disprove the evidence led by the petitioners. Mere taking of defence is not sufficient to dislodge the testimony of other side, which has no sanctity in the eyes of Law. Under such circumstances, the evidence of PW.1 which is supported by police documents has to be accepted. Consequently I hold that the accident is proved to have been caused due to the actionable negligence of the driver of water tanker. SCCH-23 10 MVC. No.4982/2019
13. Further the learned counsel for the Insurance Company argued that as the deceased was riding the motorcycle without wearing helmet, contributory negligence must be attributed to him. The mere fact that at the time of accident the petitioner was not wearing helmet, may not, by itself, without anything more, make him guilty of contributory negligence. At the most, he can held be guilty of being a party to the violation of law. In view of the ratio laid down by the Hon'ble Apex Court in Civil Appeal No.79/2020 (Mohammad Siddique & another V/s National Insurance Company Ltd & others), wherein it is held that 'Simply because there is a violation of Section 129 of the Motor Vehicles Act 1988 by a victim in an accident, there is no presumption that there is contributory negligence on the part of the person who was not wearing the helmet'. Added to this in a claim for compensation u/s 166 of M.V Act, 1988, the claimants have to prove the incident only on preponderance of probabilities and proof beyond reasonable doubt is not required as held by the Hon'ble Apex Court in 'MANGALA RAM VS. ORIENTAL INSURANCE COMPANY SCCH-23 11 MVC. No.4982/2019 reported in (2018) 5 SCC 656. With this observation, issue No.2 is answered as 'In the Affirmative'.
14. ISSUE NO.1: The petitioners claim that, petitioner No.1 is the mother, petitioner No.2 is the father and respondent No.4 is the wife of the deceased. To prove the same, petitioner No.2 filed affidavit in lieu of his chief-examination and deposed about the above relationship. The PW.1 in amended petition and in his further evidence at para No.3 he stated that the respondent No.4 is his deceased son's wife and already produced document and respondent No.4 had left from marital house 11 years back. He stated that he has given statement before the HSR Layout police at the time of his deceased son body cremation. Respondent No.4 was resided separately. The respondent No.4 already married one person by name Ganesh. The respondent No.4 running business, institution and represent as President in the name and style of Gurukul Little Champ's International School in Mysore. In this regard PW.1 has produced documents as per Ex.P17 and Ex.P.18 being Aadhar card and Copy of Trust Deed dated.05.07.2016 of respondent No.4. During the course of his cross examination he SCCH-23 12 MVC. No.4982/2019 stated that he has not residing with his sons and he was residing separately with his wife. He stated that his son was residing at Bengaluru and he was residing at native place. Further he stated that his deceased son was not married and he did not know who is Suma. He stated that he has not given any statement before the police. He denied the suggestion that his deceased son was married to Suma. He stated that he can collect information with respect to the relationship between his deceased son and Suma then implead her as a party in the instant petition. As per the evidence, this court further cross examination of PW.1 deferred for impleding the party by name Suma. Further the PW.1 filed affidavit and examined on 07.06.2022 and produced Ex.P.17 & 18. Further during his cross examination he stated that the respondent No.4 was not married to the deceased. It is pertinent to note that at one stretch the PW.1 admitted that his deceased son was not married and another stretch he admitted that respondent No.4 / Sumalatha is his deceased son's wife and she was not residing at matrimonial house. Further he has also produced Aadhar card and Trust Deed for the proof of deceased wife and SCCH-23 13 MVC. No.4982/2019 after death of Veerabhadra, respondent No.4 / Suma married other person. The deceased and respondent No.4 had no issues. The PW.1 in his chief examination stated that respondent No.4 is daughter-in-law but in the cross examination he denied the relationship between the respondent No.4. Once he admitted the relationship subsequently he could not denied the same. Even he denied it cannot be considered. In this petition also the petitioner / PW.1 clearly admitted the relationship between respondent No.4. however, it appears that after death of son of PW.1, the respondent No.4 got married with another person. Therefore she is not considered as a dependent on deceased.
15. Further the PW.1 has not produced any documents with respect to proof of their relationship with the deceased. But the documents i.e. Aadhar cards available on record it discloses the address mentioned in the petition and documents they are the legal heirs and dependents of the deceased.
16. It is vociferously contended by respondents that respondent No.4 not dependent of the deceased as such she is not entitled for any claim under the dependent head. It is well settled that dependency must be established in order to claim SCCH-23 14 MVC. No.4982/2019 compensation. However during the course of his cross- examination PW.1 admitted that his son's wife / respondent No.4 left the matrimonial house and she got another marriage. The summons issued to the respondent No.4, but she did not appeared before this court. Hence she placed exparte. Hence there is nothing placed on record before the court that the respondent No.4 was the dependent of the earning of the deceased when such being the case she cannot be considered as a dependent on the deceased. In this view of matter respondent No.4 cannot be said to be dependent on the earnings of her deceased husband. Under such circumstances only the petitioners No.1 & 2 are entitled for compensation under the head 'Loss of dependency'. Hence, this Tribunal answers to issue No.1 Partly In the Affirmative. ISSUE NO.3 :
17. LOSS OF DEPENDENCY : The petitioners have produced Aadhar card and PAN card, wherein the date of birth of deceased is shown as 24.06.1974, which indicates that he was aged (44 years 7 months 16 days) 45 years on the date of SCCH-23 15 MVC. No.4982/2019 accident. Therefore the appropriate multiplier as per Sarla Verma's case for the said age group is '14'.
18. In order to substantiate the fact the deceased was working as Booking Clerk and Pick-up and Delivery of Parcels at Swiggy / Bundal Technologies Pvt. Ltd., and earning Rs.32,000/- p.m. the petitioners have produced ID Card, pay slip, statement of account of deceased at Ex.P.12, 13 and Ex.P.21 and also got examined the Nodal Officer of Swiggy Limited as PW.2. This witness produced the Reference certificate issued by Swiggy in respect of deceased, which is exhibited at ExP.20. During the course of his cross examination PW.2 stated that the delivery partners have no fixed salary. Who have paid service fee to the delivery partners on the basis of delivery of things or food. He further stated that the servies charge includes expenses. They have not given expenses separately.
19. Generally it is the last drawn salary that needs to be taken into consideration for the calculation of compensation. But in this case as the deceased succumbed to the injuries sustained in the road traffic accident that occurred on SCCH-23 16 MVC. No.4982/2019 09.02.2022. In the present case as per the documents the deceased had no fixed salary but he had paid service charge as per his duty. As per the documents Ex.P.20 is the service charge paid to the deceased for the month of May-2018 to February-2019 same is reflected in the statement of account of deceased which is marked as Ex.P.21. As per the Ex.P.21 on last 6 months before death he received service charges in the month of August-2018 - Rs.21,583/-, September-2018 - Rs.27,817/-, October-2018 - Rs.30,673/-, November-2018 - Rs.38,384/-, December-2018 - Rs.41,692/- and January-2019
- Rs.43,300/-. It clearly reveals that on last 6 months before he died the income of the deceased was increased. It reflects that he had given good service and received good service charge. The learned advocate for respondent No.1 vehemently argued that it also includes petrol expenses to deliver the food or things it must be deducted. No doubt the service charges included the expenses but it is depending on the expenses of deceased. On the basis of each service expenses cannot be deducted. Even it was included thus deceased had some personal expenses. The said expenses also included in the personal expenses. Hence it SCCH-23 17 MVC. No.4982/2019 cannot be deducted separately. On above discussion it clears that the deceased from Aug-2018 to Jan-2019 increased his income. In the instant case on hand, having regard to the contents of Ex.P.21 Statement of account, the deceased's average income having regard to the three successive months (Nov-2018, Dec-2018 and Jan-2019 = Rs.1,23,376 / 3 = Rs.41,125/-. Therefore, Rs.41,125/- has to be taken into consideration as average monthly income of the deceased. As per the ratio laid down by the Hon'ble Apex Court in the case of National Insurance Company Limited v/s Pranay Sethi and others, except income tax no deduction is to be made from the salary of the deceased qua other allowances.
20. Be that as it may, annual income works out to Rs.4,92,000/- (Rs.41,125 X 12). Out of the said annual income, professional tax and income tax needs to be deducted. The calculation table for which stands as follows :
Annual Gross Salary (Rs.41,125 x12) 4,92,000 Annual Professional Tax (less) 2,400 Total 4,89,600 Less Tax Exemption (for the year 2019) 2,50,000 Up to Rs. 3,00,000 Nil Rs. 3,00,001 - Rs. 5,00,000 5% SCCH-23 18 MVC. No.4982/2019 Taxable Income 2,39,600 Tax payable @ 5% on Rs.2,39,600/- (during 11,980 the year 2019) Gross Income 4,92,000 Less Total Tax payable 14,380 (2,400 + 11,980 =12,086) Annual Established Income 4,77,620 Monthly Established Income (4,77,620 / 12) 39,802
21. In the case on hand the deceased was aged 45 years. His income is taken as Rs.39,802/- p.m. As per the decision of Hon'ble Apex Court reported in 2017 ACJ 2700 (SC) (National Insurance Company Limited Vs Pranay Sethi and others), if the person died in the motor accident, the income with respect to the future prospect has to taken into consideration while awarding compensation. The Hon'ble Apex Court has provide the chart for age of the deceased and percentage for future prospects in between below the age of 40 years 40%, 40 years to 50 years 25% and 50 to 60 years 10%. The deceased is not a permanent Employee and not a fixed salary person and he died at the age of 45 years. Therefore, in this case, 25% income has to be taken into consideration for future SCCH-23 19 MVC. No.4982/2019 prospects. Further as stated above that, as on the date of accident, deceased aged about 45 years and as such, 25% is added to the income of the deceased, then it comes to Rs.49,753/- p.m. (Rs.39,802/- + 9,951/- i.e. 25%).
22. The deceased died living behind 2 dependents. As per principle laid down by the Hon'ble Apex Court in Sarala Verma Case, 1/3rd of his income is required to be deducted towards his personal expenses which comes to Rs.33,169/- p.m. (Rs.49,753
- Rs.16,584 = Rs.33,169/-).
23. The income of the deceased is taken as Rs.33,169/- p.m. and the multiplier '14' is applied, then the loss of dependency comes to Rs.55,72,392/- (Rs.33,169 X 12 X 14). Considering the above facts, this Tribunal deems it just and reasonable to grant for compensation of Rs.55,72,400/- under the head of loss of dependency.
24. In this case, petitioners No.1 and 2 are the mother and father of the deceased and as per the decision reported in (2018) 12 SCC 130 between Magma General Insurance Company Limited V/s Nanu Ram alias Chuhru Ram and others, the petitioner is entitled for filial consortium, as the filial consortium SCCH-23 20 MVC. No.4982/2019 is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose of their child during their lifetime. Children are valued for their love, affection, companionship and their oral in the family unit. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. Children are valued for their love and affection, and their role in the family unit. The Hon'ble Apex Court in the decision reported in (2020) 9 SCC 644 in the case of the New India Assurance Company Ltd V/s Smt.Somwati & others, has held that the claims Tribunal shall award Parental and Filial Consortium in a sum of Rs.40,000/-. Therefore, petitioners No.1 and 2 are entitled for Rs.40,000/- each under the head of Filial consortium.
SCCH-23 21 MVC. No.4982/2019
25. Further, as Law laid down by the Hon'ble Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others, the compensation towards loss to estate, funeral expenses and consortium is to be awarded. The petitioners contended that they have spent substantial amount towards transportation of dead body, funeral and obsequies etc., but no documents are produced. Hence this Tribunal award Rs.18,150/- towards loss to estate and Rs.18,150/- towards funeral expenses as enhanced at the rate of 10% on every 3 years.
26. The calculation table stands as follows :
Compensation heads Compensation
amount
1. Towards loss of dependency Rs.55,72,400/-
2. Towards loss of Consortium to Rs. 80,000/-
the petitioners No.1 & 2
3. Towards loss to estate Rs. 18,150/-
4. Towards transportation of dead Rs. 18,150/-
body funeral and obsequies
ceremony expenses
Total Rs.56,88,700/-
27. REGARDING INTEREST & LIABILITY: Having regard to the nature of the claim and current bank rate of interest, this SCCH-23 22 MVC. No.4982/2019 Tribunal is of the view that if interest at the rate of 6% per annum is awarded it would meet the ends of justice.
28. There is no dispute with regard to the issuance of insurance policy and its validity as on the date of accident. The controversy is with regard to the liability of the Insurance Company in the matter of indemnification on the ground that knowing fully well that he had no valid & effective driving licence to drive the Water tanker, driver of water tanker drove the same in violation of the policy conditions and provisions of M.V. Act.
29. Admittedly the insurance policy was issued in respect of a offending vehicle. But the contents of the charge sheet is available on record as on the date of the accident, the driver was not having driving licence to drive the water tanker.
30. Further it is pertinent to note that IO has given Notice u/s 133 of IMV Act as per Ex.P.6 and the said notice was replied wherein the owner of the offending vehicle has admitted the involvement of the vehicle. Further in his reply at Sl.No.8 wherein he clearly admitted that he has not having any DL to SCCH-23 23 MVC. No.4982/2019 drive the said vehicle. Further on perusal of the reply at Sl.No.5 and 6 it is clearly mentioned the driver name as Nikethan. N, S/o Nagaraj, Age-21 years, No.99, C/o Vasudeva Swamy Building, Chodasandra, Sarjapura Hobli, Anekal Taluk, Bengaluru-106 and at SL.No.6 - Driving Licence No.KA5120160030659 issued in the year 2016 issued by : RTO Electronic City. As per the reply given by owner, the IO has investigated the same and after confirmation he has issued Police notice on 11.02.2019 to the owner stated that at the time of investigation and on perusal of vehicle documents, the driver was not possessing valid driving licence to drive the offending vehicle.
31. In order to prove the said fact the respondent No.3 being the owner of the water tanker himself examined as RW.1 and stated that the driver by name Mr. Nikethan having valid and effective driving licence to drive water tanker. During the course of cross examination RW.1 admitted that the police have issued notice u/s 133 of MV Act. Further he informed to the police about DL of driver at the time of reply to the notice. He denied that police have filed charge sheet against the driver as SCCH-23 24 MVC. No.4982/2019 he has no DL. Further he stated that the Nikethan has furnished xerox copy of DL to him, thereby he has produced it. He further admitted that the driver has pleaded guilty and paid fine. Further he stated that he did not know in which RTO office Nikethan has obtained DL. Further he stated that without verifying from which office it was issued and he can produce the B-Extract of the DL of the driver. In the further cross- examination RW.1 stated that he has inquired about the DL but he could not find DL of the driver. Further he has not produced any documents with regard to verification about getting the DL. Further he stated that the driver by name Nikethan was with him prior to one year of accident and he has not verified the DL of Nikethan in RTO. He further voluntaries and stated that police purposefully did not receive the DL from him. Further he did not know the charge sheet was filed against him u/s 3 r/w 180 of IMV Act.
32. Further on perusal of order sheet dated.11.03.2024, the respondent No.3 has filed application u/s 65C of Evidence Act R/w sec.151 of CPC at IA No.10 praying to permit him to lead evidence by way of secondary evidence in respect of SCCH-23 25 MVC. No.4982/2019 photocopy of the DL of Nikethan. In the said order the this court observed that the Sec.65C of Indian Evidence Act Sec.65C reads as here under : "When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time"
33. Further this court observed that the provision itself contemplates that secondary evidence in respect of these documents are admissible in evidence. The respondent No.1 objected the same. Further this court is of the opinion that the respondent No.3 has to be provided with an opportunity to lead secondary evidence and the application filed the respondent No.3 is allowed and permitted to lead evidence by way of secondary evidence in respect of Photocopy of the DL of the Nikethan. As per the order of this this court, RW.1 in his further chief-examination he has produced the copy of the DL of driver of Nikethan as per Ex.R.4.
34. This court marked the DL as secondary evidence as a Ex.R.4. In the Ex.R.2 the name of the respondent No.2 is appeared as Mr. Nikethan and the DL.No.TN2720140001119 for SCCH-23 26 MVC. No.4982/2019 LMV, MCWG, HTV and same is valid till 20.11.2022. The respondent No.1 argued that accused itself pleaded guilty and paid the fine for the offence punishable u/s 3(1) r/w 181 of M.V.Act and it was fake DL. No doubt the driver / accused has pleaded guilty and paid the fine for the offence punishable u/s 3(1) r/w 181 of MV.Act. But it is not conclusive proof that he has no DL at the time of accident. Only on that reason it cannot be considered as fake DL. But with regarding to his defence the respondent No.1 has not made effort to examine the RTO. He got issued the notice to RTO, but he has not taken proper steps. He has also not made any effort to obtain the extract of DL from concerned office. When this court has accepted the secondary evidence, the burden to prove as it is fake DL is shifted on respondent No.1. In this regard he had filed application u/o 16 Rule 1 of CPC to issue summons to the RTO, Slaem, Tamil Nadu. This court allowed the same and issued summons but summons not served. But thereafter respondent No.1 has not taken steps. The RPAD returned as incorrect address. Thereafter he has not made effort to trace out the correct address. Therefore, on perusal of Ex.R.4 clearly reveals that the SCCH-23 27 MVC. No.4982/2019 driver had valid DL from 21.11.2017 to 20.11.2022 (for transport) and 21.11.2017 to 06.04.2023 (for Non-Transport). It clearly reveals that at the time of accident accused was having valid DL. The respondent NO.1 has also not challenged the order of this Tribunal on IA No.10.
35. There is no dispute with regard to the issuance of insurance policy and its validity as on the date of accident. Therefore, the respondent No.1 being the insurer and respondent No.3 being the RC owner of the water tanker bearing Reg.No.KA-01-AF-2847 thereof are jointly and severally liable to pay the aforesaid award amount to the petitioner together with interest @ 6% per annum from the date of claim petition till realization of the entire amount. However the respondent No.1 being the insurer is primarily liable to satisfy the award amount together with interest within two months from the date of this order. Hence this issue is answered as 'Partly in the Affirmative'.
36. ISSUE NO.4 : In view of the discussion made supra, this Tribunal proceeds to pass the following : SCCH-23 28 MVC. No.4982/2019
ORDER The petition filed under Section 166 of M.V. Act 1988, is hereby partly allowed with costs in the following terms :
The petitioners are entitled for compensation of Rs.56,88,700/- with interest at the rate of 6% p.a. from the date of claim petition till realization of the entire award amount.
The respondent No.1 is liable to pay and directed to deposit the compensation amount within a period of one month from the date of award.
On deposit of the award amount together with interest, the claimants are entitled for the compensation amount by way of apportionment as follows :
Petitioner No.1 - 70%
Petitioner No.2 - 30%
Out of the share amount of Petitioner No.1 & 2 a sum equal to 40% shall be deposited in their names in any Nationalized or Scheduled Bank of their choice for a period of 5 years and the remaining 60% shall be released to them through E-payment on proper identification and verification. However the said petitioner No.1 & 2 are at liberty to withdraw the periodical interest accrued on their deposit amount from time to time.SCCH-23 29 MVC. No.4982/2019
Advocate fee is fixed at Rs.1,000/-.
Draw an award accordingly.
(Dictated to the Stenographer directly on computer & printout taken by him, then corrected and pronounced by me in the open court on this the 26th day of November - 2024).
(Shreyansh Doddamani) XXI Addl. Small Causes Judge & ACJM, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONER/S :
PW-1: Sri. Shantha Shetty. M.K PW-2: Sri. Deepak. K.C LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONER/S :
Ex.P.1 FIR Ex.P.2 Complaint Ex.P.3 Spot Mahazar Ex.P.4 Sketch Ex.P.5 IMV Report Ex.P.6 Notice issued u/s 133 and Reply Ex.P.7 Inquest Mahaar Ex.P.8 PM Report Ex.P.9 Charge sheet Ex.P.10 Death certificate
Ex.P.11 Notarized copy of Aadhar card of deceased Ex.P.12 Notarized copy of ID Card of deceased SCCH-23 30 MVC. No.4982/2019 Ex.P.13 Pay slip Ex.P.14 Notarized copy of PAN Card of deceased Ex.P.15 Extract of the Driving licence of deceased Ex.P.16 Driving Licence of deceased Ex.P.17 Aadar card of Sumalatha / Respondent No.4 Ex.P.18 Copy of Trust Deed dated.05.07.2016 Ex.P.19 Authorization letter of PW.2 Ex.P.20 2-Reference certificate issued by Swiggy Ex.P.21 Statement of Account of deceased LIST OF WITNESSES EXAMINED ON BEHALF OF THE RESPONDENT/S :
RW.1 : Sri. Noorulla
RW.2 : Smt. R. Roshni Ashwitha
LIST OF DOCUMENTS MARKED ON BEHALF OF THE
RESPONDENT/S :
Ex.R.1 : Copy of Policy
Ex.R.2 : Authorization letter
Ex.R.3 : True copy of Insurance policy
Ex.R.4 : Copy of DL of one Nikethan
(Shreyansh Doddamani)
XXI Addl. Small Causes Judge
& ACJM, Bengaluru.