Bangalore District Court
Parameshvaraiah vs The Manager on 22 December, 2020
IN THE COURT OF III ADDL. JUDGE AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, BENGALURU. (SCCH-18)
Dated: This the 22nd day of December 2020
Present: SRI.MAHANTESH S.DARGAD
B.Sc., LL.B.,
III ADDL. JUDGE &
MEMBER, MACT
COURT OF SMALL CAUSES,
BANGALORE.
M.V.C.No.5314/2019
Petitioners 1. Parameshvaraiah,
S/o Rangaiah,
Aged about 53 years,
2. Gangamma.H.L.
W/o R.Parameshwaraiah
@ Parameshaiah,
Aged about 43 years.
3.Harshita.P.
Daughter ofo Parameshvaraiah,
Aged about 23 years.
All are r/at No.121,
Hodakall Village,
Urdigere Hobli, Bhaty Post,
Tumkur Taluk & District.
(By Pleader Shri.B.K.Kumara)
2 SCCH-18 MVC 5314/2019
V/s
Respondents 1.The Manager,
United India Insurance Co.Ltd.,
5th & 6th Floor Krushi Bhavan Building,
Hudson Circle.
Bangalore -1.
(Insurer of offending vehicle lorry
bearing No.KA-63-5023)
(By Pleader Shri.H.C.Vrushabhendraiah)
2. MS The Managing Director,
VRL Logistic Ltd., Regd. Admin Office,
NH-4, Bangalore Road,
Varur Hobli,
Dharwad - 581 207.
(RC owner of offending vehicle lorry
bearing No.KA-63-5023)
(By Pleader Shri.Aravind M.Neglur)
J U D G M E N T
The petitioners have filed this claim petition against the respondent U/S. 166 of M.V. Act for seeking compensation of 3 SCCH-18 MVC 5314/2019 Rs.25,00,000/- for the death of Naveen Kumar.P. S/o Parameshvaraiah in a road traffic accident.
2. The brief contents of petition are as under:
On 20.08.2019 at about 7.00 p.m. Naveen Kumar.P. S/o Paramehsvaraiah was riding motor bike bearing No.KA-06-ES-8954 on Bengaluru-Tumkuru NH-48, Devarahosahalli Bridge near Urdigere Hobli, Tumkuru Taluk, at that time, lorry bearing No.KA- 63-5023, the driver of the said vehicle drove in a rash and negligent manner so as to endanger human life and safety of others and dashed against the motor cycle. Consequently Naveen Kumar sustained grievous injuries all over the body and died on the spot. Immediately he was shifted to Tumkur district hospital wherein PM was conducted and the body was handed over to the petitioners.
3. The contention of the petitioners is that, deceased Naveen Kumar, was hale and healthy at the time of accident, aged about 22 years, working in a private firm and getting an income of 4 SCCH-18 MVC 5314/2019 Rs.15,000/- per month. The deceased was the only son and earning member of the family and out of his earnings, entire family was maintaining. The petitioners fell in dark and mental agony due to unnatural death of Naveen Kumar. The accident occurred due to rash and negligent driving of the driver of the lorry bearing Reg.No.KA-63-5023 and as such, the respondents are jointly and severally liable to pay compensation to the petitioners. Contending the above facts, they pray for grant of compensation with interest and cost.
4. In response to the petition notice, the respondents appeared before the court and filed their written statement.
5. The brief contents of written statement of respondent No.1 are as under:
The respondent No.2 has contended that the petition filed by the petitioners is not maintainable either in law or on facts. Further contended that neither the owner of the vehicle nor the jurisdictional police have complied mandatory provision u/s 134(c) 5 SCCH-18 MVC 5314/2019 and S. 158(6) of the M.V. Act in furnishing the better particulars. Further contended that the said lorry had no valid and effective fitness certificate and permit. Further admitted about the issuance of policy in respect of lorry bearing No.KA-63-5023 and its liability is subject to terms and conditions of the policy. Further contended that the driver of the offending vehicle had no valid and effective driving license at the time of accident. Further, this respondent has denied the age, occupation and income of the deceased and dependency of the petitioners upon the income of deceased and relationship of the petitioners with the deceased. Further contended that the compensation claimed by the petitioners is highly excessive, exorbitant and without any basis. Contending the above facts, he prays to dismiss the petition with cost.
6. The brief contents of written statement of respondent No.2 are as under:
6 SCCH-18 MVC 5314/2019
The respondent No.2 has contended in his written statement that the petition filed by the petitioners is not maintainable either in law or on facts. Further contended that he is the RC owner of the vehicle bearing No.KA-63-5023 and the said vehicle is duly insured with the respondent No.1 and as on the date of accident, the driver had a valid driving licence and the lorry had permit to ply. Further denied that the rider of the motor cycle was riding slowly and cautiously. Further denied the age, avocation and income of the petitioner as alleged in the claim petition. Contending the above facts, he prays to dismiss the claim petition as against this respondent with cost.
7. On the basis of above pleadings, the following issues were framed:
1. Whether the petitioners prove that Sri.Naveen Kumar.P, S/o Parameshwaraiah died due injuries sustained by him in a motor vehicle accident that was taken place on 20-08-2019 at about 7.30 p.m. on Bengaluru - Tumkuru NH-48 road, 7 SCCH-18 MVC 5314/2019 Devarahosahalli bridge, near bus Urdigere Hobli, Tumkuru Taluk, Tumkur involving lorry bearing Reg.No.KA-63-5023 belonging to second respondent said vehicle insured with first 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 only the legal heirs and dependants of deceased?
4. Whether the petitioners are entitled for compensation as prayed? If so, at what rate from whom?
5. What order or award?
8. In order to prove the case, the petitioner No.1 is examined as PW1 and got marked the documents at Ex.P1 to Ex.P19 and examined employer of deceased as PW.2 and got marked Ex.P.20 to P. 22 and an eyewitness is examined as PW.3. 8 SCCH-18 MVC 5314/2019
9. In order to disprove the contention of the petitioners, the respondent No.1 has not adduced any evidence.
10. Heard the arguments. The learned counsel for the petitioner has relied on the following citations.
1. AIR 2017 SC 5157
2. 2018 ACJ 5
11. My findings to the above issues are as under:
Issue No.1 & 2 : In the Affirmative Issue No. 3 & 4: In Partly in Affirmative Issue No.5: As per final order for the following:
R E A S O N S
12. Issue No.1 & 2 : These issues are interconnected with each other, hence in order to avoid the repetition of facts, these issues are taken together for common consideration.
13. During the course of arguments, the learned counsel for the petitioners argued by reiterating the contents of petition and 9 SCCH-18 MVC 5314/2019 also evidence put forth by PW1 to PW3. Further he argued that the defence of the respondents is that the alleged accident has not occurred due to rash and negligent driving of the driver of the lorry bearing No.KA-63-5023. Further contended that the alleged accident has occurred due to rash and negligent act of deceased Naveen Kumar itself. To prove the said fact, respondents have not examined any eye witness and not produced any documents.
14. Further contended that the petitioners have proved their case as contended in the petition by producing oral and documentary evidence. Accordingly, they pray to allow the petition.
15. Per contra, the learned counsel for the respondent No.1 has argued by reiterating the contents of objection statement filed by respondent No.1. Further they argued that, the alleged accident has not occurred due to rash and negligent driving of the driver of the alleged lorry bearing No.KA-63-5023, on the other hand, the alleged accident has occurred due to rash and negligent 10 SCCH-18 MVC 5314/2019 act of the deceased Naveen Kumar who rode the motor bike in rash and negligent manner due to his negligence accident was took place.
16. Further he argued that, the petitioners have failed to prove the occupation and income of deceased and also failed to prove their case as contended in the petition by produced proper documents. Contending the above facts, he prays to dismiss the claim petition as against the respondent No.1 with cost.
17. On rival contention urged by both the parties, I intend to discuss the case on merits.
18. On perusal of evidence available on records, it reveals that, to prove their case, the petitioner No.1 has examined himself as PW-1 and he has stated in his evidence by reiterating the contents of petition. Further in support of his evidence, he has produced the documents and the same are marked as Ex.P.1 to 9. Further he examined PW.3 Harish said to be eyewitness and also he 11 SCCH-18 MVC 5314/2019 was witness of charge sheet and cited him as CW.3. The evidence of PW.1 and 3 are corroborated with documentary evidence.
19. Thereafter, the counsel for the respondents have cross-examined PW.1 and 3 at length. On perusal of entire evidence of PW.1 and 3, nothing was elicited in respect of alleged accident was took place due to rash and negligent act of deceased Naveen Kumar itself.
20. To prove the defence, the respondents have not examined any eyewitness and not produced the documents to disbelieve the case of the petitioners.
21. To prove the involvement of the alleged lorry and to prove the rash and negligent driving of the driver of the alleged lorry, in support of oral evidence of PW.1 and 3, the petitioners have relied upon the copy of police investigation papers and the same are marked as Ex-P-1 to 7 i.e. true copy of FIR with complaint, spot mahazar, rough sketch, motor vehicle report, 12 SCCH-18 MVC 5314/2019 inquest, Pm report and charge sheet. On perusal of Ex-P-1 to 7 i.e. copy of FIR, complaint and charge sheet, it reveals that, Kyathasandra police have registered a case as against the driver of the lorry bearing Reg.No.KA-63-5023 in Cr.No.146/2019 as against the driver of the alleged lorry bearing No.KA-63-5023 and after completion of investigation, the investigating police have filed the charge sheet as against the driver of the alleged lorry for the offences punishable U/s. 279 and 304(A) of IPC.
22. Thereafter, driver of the alleged lorry and respondent No.2 have not challenged the FIR, charge sheet against the driver of the alleged lorry.
23. Considering the above facts and on perusal of evidence of PW-1 and 3 coupled with documents and for the above reason, I am of the opinion that, the oral version of the petitioners is corroborated with the documentary evidence and as such, the petitioners have proved that, the alleged accident has occurred due 13 SCCH-18 MVC 5314/2019 to sole negligence on the part of the driver of the lorry as contended in the petition by producing oral and documentary evidence.
24. Further on perusal of Ex.P5 and Ex.P6 i.e., copy of Inquest report and P.M. report reveals that, deceased Naveen Kumar has sustained grievous injuries in the accident and succumbed to the injuries.
25. In addenda of this, in a claim for compensation U/S.166 of MV Act, 1988, the claimant has to prove the incident only on preponderance of probabilities and the standard of proof beyond reasonable doubt is not required as held by Hon'ble Apex Court in the decision reported in 2011 SAR (Civil) 319 (Kusum and others Vs. Satbir and others).
26. Looking to the oral evidence of PW1 and the documents placed before the court, I am of the opinion that the accident occurred due to the rash and negligent driving of the driver of the 14 SCCH-18 MVC 5314/2019 lorry bearing No.KA-63-5023. Hence, I answer issue No.1 & 2 in the affirmative.
27. Issue No.3:- The specific contention of the petitioners is that the petitioner No.1 and 2 are parents of the deceased Naveen Kumar and petitioner No.3 is the sister of the deceased Naveen Kumar. So, they are legal representatives and dependants of the deceased.
28. On the other hand, the respondents have disputed the above contention of the petitioners in toto.
29. To prove the relationship of the petitioners, they have relied upon Notarised copy of ration card, Aadhar card of the petitioner and same are marked at Ex.P8 to Ex.P12. On perusal of contents of these documents, it reveals that the petitioner No.1 and 2 are parents and the petitioner No.3 is the major sister of the deceased Naveen Kumar.P. But in view of the judgment of the Hon'ble Apex Court in Civil Appeal Nos. 242-243/2020 in case 15 SCCH-18 MVC 5314/2019 of National Insurance Co.Ltd., Vs. Birender and Others. IN the said judgment, it is observed that;
" The legal representatives of the deceased have a right to apply for compensation. It must necessarily follow that event he major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependant on the deceased and not to limit the claim towards conventional heads only"
30. On perusal of the said decision it is clear that the legal representatives of the deceased have a right to apply for compensation and not limit the claim towards conventional heads.
31. Considering the above, facts and circumstances of the case and on perusal of evidence of PW1 coupled with documents and 16 SCCH-18 MVC 5314/2019 for the above reasons, I am of the opinion that the petitioners are legal representatives and dependants of the deceased. Accordingly, I answer this issue in affirmative.
32. Issue No.4:- The specific contention of the petitioners is that, deceased Naveen Kumar was hale and healthy at the time of accident, aged about 22 years and was working in a private firm and getting an income of Rs.15,000/- per month. Further he contended that due to unexpected death of Naveen Kumar they have suffered a lot and lost their bread earner.
33. On the other hand, respondents have disputed the above contention of the petitioners in toto.
34. To prove the age, the petitioners have produced copy of SSLC marks card and the same is marked at Ex.P16. while perusing the same, the date of birth of the deceased is shown as 28.09.1997 and alleged accident was took place on 20.08.2019. While close scrutiny of the same, the deceased was aged about 22 years as on 17 SCCH-18 MVC 5314/2019 the date of accident and the same is considered as age of the deceased, then the proper Multiplier applicable to the case on hand is "18".
35. Further to prove the occupation and income of the deceased, petitioners have relied upon Ex.P.14 salary certificate and Ex.P.15 participation certificate and also examined PW.2 B.A.Anthony Prasad said to be proprietor of Unique Products, Chamarajpet, Bangalore. While perusing the said records, he was working in a private firm, but there is no substantial evidence to believe that he was receiving Rs.15,000/-p.m. as salary. Further petitioner have not furnished passbook and account extract. Further more, PW.2 has stated that he has shown in audit report for payment of amount, but petitioner has not furnished any records to substantiate that the deceased had received salary of Rs.15,000/-. With these circumstances and considering the above facts and in the absence of documents regarding consideration of 18 SCCH-18 MVC 5314/2019 income of the deceased and considering the age and year of the accident, I am of the opinion that the income of the deceased is considered as Rs.11,000/- per month, it would meet the ends of justice. So, the same is considered as the income of the petitioner per month. The annual income comes to Rs.1,32,000/-.
36. Further as on the date of accident, the deceased Naveen Kumar was aged about 22 years. At this juncture I relied the decision of the Hon'ble Supreme Court reported in 2017 ACJ 2700 in between National Insurance Co.Ltd., Vs. Pranay Sethi and others. In the said decision, it is held that;
Quantum---Fatal accident---Principles of assessment---future prospects----Whether legal representatives of the deceased who was on fixed salary or self-employed or aged between 50 and 60 would be entitled to benefit of future prospects for the purpose of computation of compensation--- Held: yes; case-law discussed.
19 SCCH-18 MVC 5314/2019While determining the income, an addition of 50 per cent of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30 per cent, if the age of the deceased was between 40 and 50 years. In case the deceased was between the age of 50 and 60 years, the addition should be 15 per cent. Actual salary should be read as actual salary less tax.
In case the deceased was self-employed or on a fixed salary, an addition of 40 per cent of the established income should be the warrant where the deceased was below the age of 40 year. An addition of 25 per cent where the deceased was between the age of 40 to 50 years. An addition of 25 per cent where the deceased was between the age of 40 and 50 years and 10 per cent where the deceased was between the age of 50-60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
20 SCCH-18 MVC 5314/2019
37. In the instant case, the age of the deceased is considered as 22 years, he falls under the age group of below 40 years, 40% of the income of Rs.52,800/- is to be added to the income of Rs.1,32,000/- as future prospects, on such addition, the total income of the deceased comes to Rs. 1,84,800/- per annum.
38. At this stage, I have gone through a citation relied by the counsel for petitioners reported in 2018 ACJ page 5 (Hem Raj Vs. Oriental Ins. Co.Ltd., and others), wherein the Hon'ble Apex Court held that, there cannot be distinction where there is evidence of established income and where minimum income is determined on guess work.
39. Further in the said Judgment at para No.12 and 13 it reads thus:
"12. Leaned counsel for the insurance company submitted that in absence of actual evidence of income the principle of adding on account of future prospects 21 SCCH-18 MVC 5314/2019 can not be applied where income is determined by guess work.
13. We are of the view that there cannot be distinction where there is positive evidence of income and where minimum income is determined on guesswork in the facts and circumstances of a case. Both the situations stand at the same footing. Accordingly, in the present case, addition of 25% to the income assessed by the Tribunal is required to be made. The Tribunal made addition of 50% while the High Court has deleted the same."
40. Further as stated above, there are 3 dependents. Hence, 1/3rd of the income of the deceased shall be deducted towards his personal expenses, on such deduction, the income of the deceased comes to Rs.1,23,200/- (Rs.1,84,800 -61,600/-).
41. The income of the deceased is taken as Rs.1,23,200/- p.a. and the multiplier 18 is applied, then the loss of dependency comes to Rs.22,17,600/-(1,23,200 x 18). Considering the above 22 SCCH-18 MVC 5314/2019 facts, I deem it just and reasonable to grant for compensation of Rs.22,17,600/- under the head of loss of dependency.
42. At this juncture I relied the judgment of the Hon'ble Supreme Court in Civil Appeal No.9581/2018 (Arising out of SLP (Civil) No.3192/2018) in case of Muama General Insurance Co.Ltd., Vs. Nanu Ram alias Chuhru Ram and Others.
In which it is held in para No.8.7 that " A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under which the compensation it so be awarded in a death case. One of these heads is "Loss of Consortium":
In legal parlance "consortium" is a
compendious term which encompasses 'spousal
consortium; parental consortium and filial
consortium.
The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to 23 SCCH-18 MVC 5314/2019 his family. With respect to a spouse, it would include sexual relations with the deceased spouse.
Spousal consortium is generally defined as rights pertaining to the relationship of a husband
-wife which allows compensation to the surviving spouse for loss of "company, society, co-
operation, affection and aid of the other in every conjugal relation."
Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training."
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. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.
24 SCCH-18 MVC 5314/2019
Consortium is a special prism reflection changing norms about the status and worth of actual relationship. Modern jurisdictions world- over have recognized that the value of child's consortium far exceeds the economic value of the compensation awarded in case of death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensating for loss of love, affection, care and companionship of the deceased child.
43. As stated above, petitioner No.1 and 2 are parents and petitioner No.3 is sister of the deceased. As such petitioner N0.1 and 2 are entitled for filial consortium, as the 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. The greatest agony for a parent is to lose their child 25 SCCH-18 MVC 5314/2019 during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit. I rely the judgment of Hon'ble Apex Court observed in Civil Appeal No.2705/2020 in case of United India Insurance Co.Ltd., Vs. Satinder Kaur @ Satvindar Kaur and others, DD on 30.06.2020. Therefore, petitioner No.1 and 2 are entitled for Rs.40,000/- each under the head of Filial consortium.
44. such they are entitled for consortium. Therefore, Rs.40,000/- each is awarded to the petitioner No.1 & 2.
45. Further the petitioners are parents and sister of deceased, they are entitled for compensation of Rs.15,000/-under the head of loss of estate and also an amount of Rs.15,000/- is awarded under the head of transportation of dead body, funeral and obsequies ceremony expenses.
46. Considering the above facts and circumstances of the case and for the above reason, I am of the opinion that, the 26 SCCH-18 MVC 5314/2019 petitioners are entitled for total compensation under the following heads.
Compensation heads Compensation amount
Towards loss of dependency Rs.22,17,600-00
Towards loss of consortium Rs. 80,000-00
Towards loss of estate Rs. 15,000-00
Towards transportation of dead body, Rs. 15,000-00 funeral & obsequies ceremony expenses Total Rs.23,27,600-00
47. LIABILITY: As I have already discussed in issue No.1 the accident occurred due to the rash and negligent driving of the driver of the lorry bearing No.KA-63-5023.
48. The counsel for the respondent No.1 has admitted about the issuance of policy in respect of vehicle bearing No.KA-63-5023 and its validity. Therefore, the respondents are jointly and severally liable to pay the compensation. In view of the valid insurance policy the respondent No.1 is liable to pay the 27 SCCH-18 MVC 5314/2019 compensation together with interest @ 8% p.a. from the date of petition till the date of deposit. Accordingly, I answer the issue No.2 in the partly affirmative.
49. ISSUE NO.5: In view of my findings on the above issues, I proceed to pass the following;
O R D E R The claim petition filed by the petitioners U/S 166 of MV Act is hereby partly allowed with costs.
The petitioners are entitled for compensation of Rs.23,27,600/- with interest @ 8% P.A. from the date of petition till the date of deposit.
The respondents are jointly and severally liable to pay the compensation. In view of the valid insurance policy the respondent No.1 being the insurer is liable to pay the compensation with interest at 8% p.a. from the 28 SCCH-18 MVC 5314/2019 date of petition till the date of deposit within two months from the date of this order.
Out of the compensation amount awarded to the petitioners together with interest, petitioner No.1 and 2 are entitled to 40% each of the compensation amount and petitioner No.3 is entitled to 20% of the compensation amount.
With regard to the compensation amount together with interest of petitioner No.1 to 3, 40% of the amount shall be deposited in any nationalized/scheduled bank of their choice, for a period of 3 years and remaining 60% of the amount shall be released to the petitioners through e-payment. The petitioners are at liberty to withdraw the periodical interest accrued on their deposit amount from time to time.
29 SCCH-18 MVC 5314/2019
Advocate fee is fixed at Rs.500/- each.
Draw award accordingly.
(Dictated to the stenographer, transcribed by her, corrected by me and then pronounced in the open court on this 22nd day of December 2020) (MAHANTESH S.DARGAD) III ADDL. SMALL CAUSES JUDGE & ACMM, BENGALURU.
ANNEXURE List of witnesses examined on petitioner's side:
PW1 R.Parameshwaraiah PW2 B.A.Anthony Prasad PW3 Harish
List of documents exhibited on petitioner's side:
Ex-P1 True copy of FIR with complaint
Ex-P2 True copy of Spot mahazar
Ex-P3 True copy of rough sketch
Ex-P4 True copy of IMV report
Ex-P5 Inquest
Ex-P6 P.M.report
Ex-P7 True copy of Charge sheet
Ex-P8 Notarised copy of ration card
30 SCCH-18 MVC 5314/2019
Ex.P9 Notarised copy of Aadhar card of petitioner
No.1
Ex.P10 Notarised copy of Aadhar card of petitioner
No.2
Ex.P11 Notarised copy of Aadhar card of petitioner
No.3
Ex.P12 Notarised copy of Aadhar card of deceased
Ex.P13 Notarised copy of RC
Ex.P14 Salary certificate
Ex.P15 Notarised copy of participate certificate
Ex.P16 Notarised copy of SSLC marks card
Ex.P17 Notarised copy of I PUC card
Ex.P18 Notarised copy of II PUC card
ExP19 Notarised copy of B.Com certificate
Ex.P20 Appointment letter
Ex.P21 Certificate
Ex.P.22 Attendance register
List of witnesses examined on respondents' side:
None List of documents exhibited on respondents' side:
NIL III ADDL.SMALL CAUSES JUDGE & ACMM, Bengaluru.