Bangalore District Court
Mangalamma vs Mahesh B.K on 16 November, 2017
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this the 16th Day of November 2017
PRESENT: SMT. SUJATHA, S. B. COM., LL.B.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C. NO. 507/2015
PETITIONERS:
1. Mangalamma
Aged about 60 years,
W/o Late Gangashamaiah,
2. Manjunath T.G.
Aged about 32 years,
S/o Late Gangashamaiah,
R/o, 5/A, 1st "B' Main Road,
Kanakanagara,
Bangalore-560032.
3. Naveen
Aged about 25 years,
S/o Late Gangashamaiah.
4. Anita
Aged about 42 years,
D/o Late Gangashamaiah
W/o Ananda R.
R/o No.11/25, 5th Cross,
Balajinagara, Bangalore-22.
5.Nethravathi
Aged about 38 years,
SCCH-7 2 M.V.C.507/2015
D/o Late Gangashamaiah
W/o Janardhana
R/o Maragondanahalli Palya,
Nelamangala Taluk,
Bangalore Rural District.
6. Shobha.G.
Aged about 30 years,
S/o Late Gangashamaiah
W/o Kumar S.
R/o Vaddaradoddi, Maddur Taluk,
Mandya District.
7. Gangamma Aged about 85 years
W/o Late Tirumalaiah.
Petitioners No.1,3 and 7 are
R/o Totanahalli Village,
Tyamagondlu Hobli,
Nelamangala Taluk,
Bangalore Rural District.
(By Sri.K.G.Bhat, Adv.)
-VS-
RESPONDENTS:
1. Mahesh B.K.
Major by age,
S/o.B.M.Kishnamurthy,
R/o No.35, 1st main, 2nd Cross,
J.B.Kawal, Shankaranagar,
Mahalaxmi Layout,
Bangalore-560086.
(Owner of Lorry
Bearing Reg.No.KA-01-AG-9666)
SCCH-7 3 M.V.C.507/2015
2. Shriram General Insurance Co.Ltd.,
No.302, 3rd Floor S & S Corner Building,
Plot No.48, Hospital Road,
Shivajinagara, Bangalore-01.
By its Manager.
(R-1 By Sri.T.Sheshagiri Rao, Adv.)
(By Sri.H.N.Keshava Prashanth, Adv.)
JUDGMENT
This petition is filed under Section 166 of I.M.V. Act.
2. The Brief facts of the petitioners' case is that: on 13.08.2014 at about 7.15 p.m. husband of Petitioner No.1 Gangashamaiah was riding his Motor Cycle bearing registration No.KA-02-EK-7146 on the extreme left side of road from Billanakote towards Tyamagodly side to go to his village Totadahalli on Billankote-Tyamagodlu road, when he reached neat Puttaswamegowda's land the driver of Lorry bearing registration No.KA-01-AG-9666 came from Tyamagodly with rash and negligent manner in high speed and lost his control over the vehicle and dashed to the front side of Motor Cycle and caused accident. Due to the impact, Gangashamaiah fell down along with his Motor Cycle and succumbed to injury on the spot. Thereafter post mortem examination was conducted at Government Hospital, Dabasapete Hospital, V.V.Puram, Bangalore and handed over the dead body to the Petitioners. Petitioner have spent more than Rupees 50,000/- towards transportation of dead body and ritual SCCH-7 4 M.V.C.507/2015 death ceremony. Prior to the date of accident the deceased was hale and healthy and was a farmer in his village and independently and utility value of his family. Due to untimely death the Petitioners now totally suffered love and affection and lost the utility value of their family and also loss of estate. The accident in question occurred only due to the rash and negligent manner of driving of the driver of Lorry bearing registration No.KA-01-AG- 9666 only and in this connection, the jurisdictional Police have registered a case in their Crime No.201/2014, after investigation the said Police have filed Charge Sheet against the said driver. Hence the Respondents are jointly and severally liable to pay the compensation to them under all heads. Under these circumstances, the Petitioners prayed to allow the petition.
3. After service of summons, Respondents have appeared before the court. They have filed separate objection statements.
4. Respondent No.1 stated that, he is the registered owner of Lorry bearing reg.No.KA-01-AG-9666. He stated that, his vehicle not met with any accident either on 13.08.2014 or any other day as alleged by the Petitioners. Respondent No.1 denied the accident and also denied that, in the accident Gangashamaiah sustained injuries and succumbed to injuries. Respondent No.1 stated that, in Crime No.201/2014 Police have stated that some unknown vehicle caused accident on 13.08.2014 and after the accident said vehicle flee from the spot. Respondent No.1 stated SCCH-7 5 M.V.C.507/2015 that in order to wash of their responsibility the Police have chosen to fix the case against the Lorry bearing reg.No.KA-01-AG-9666 since the said vehicle used to move in Nelamangala Taluk limits as he is hailing from Yentaganahalli of Nelamangala Taluk. Respondent No.1 stated that, on 05.09.2014, the Police have taken his vehicle to fix the case as if the said lorry involved in the accident occurred on 13.08.2014 and they continued to detain the same illegally till second week of October 2014. On 09.10.2014 he filed application before JMFC court, Nelamangala court for illegal detention of his vehicle and on 13.10.2014 court passed an order on application and thereafter Police in order to take vengeance against him fixed his Lorry as if it is involved in the accident. The CPI of Nelamangala illegally detained Lorry bearing reg.No.KA-01-AG-9666 from 05.09.2014 to 15.10.2014. If the said vehicle involved in the accident, Police would have informed the Court about the said fact at the time of passing orders by the Court on 13.10.2014. On 14.10.2014 CPI of Nelamangala created mahazar to the effect that, the said vehicle involved in the accident. Respondent No.1 stated that, if really his vehicle was involved in the accident, Police would have not released his vehicle on 15.10.2014 i.e., pursuance of Court order dated 13.10.2014. This clearly goes to show that, Nelamangala Police have manipulated in such a way that Lorry bearing reg.No.KA-01- AG-9666 is involved in the accident. Further Respondent No.1 stated that Petitioners have managed with Police in order to create evidence as if said vehicle involved in the accident. Further SCCH-7 6 M.V.C.507/2015 Respondent No.1 stated that, he has engaged K.H.Ramesh S/o Hanumantharayappa, resident of Arisankunte as his driver. Even on 13.08.2014 he was the driver of said vehicle and not driver by name Hanumantharaju @ Hanumantharayi S/o Late. Munibyraiah resident of Harijana Colony, Thotanahalli Road, Thymagondlu Town, Nelamangala Taluk. Respondent No.1 stated that, he does not know about Hanumantharaju. Respondent No.1 stated that, in the back drop of proceedings at JMFC, Nelamangala dated 13.10.2014 it is clear that Police have foisted false case against the vehicle belonging to him. Further, Respondent No.1 stated that, K.H.Ramesh was possessed valid driving livence to drive heavy goods vehicle and as on the date of alleged accident, Lorry bearing reg.No.KA-01-AG-9666 was insured with Respondent No.2. Respondent No.1 stated that the validity of Insurance Policy is from 25.05.2014 to 24.05.2015. Further Respondent No.1 stated that, if the court reaches to a conclusion that, his vehicle is involved in the accident and the Petitioners are entitled to any compensation then the liability may be fixed against Respondent No.2. Further contended that, the claim made by the Petitioners is highly exorbitant. Under these circumstances, Respondent No.1 prayed to dismiss the petition.
5. Respondent No.2 stated that, petition is not maintainable either in law or on facts. Respondent No.2 admitted issuance of Insurance Policy in respect of Lorry bearing reg.No.KA-01-AG- 9666, however, contended that their liability is subject to terms SCCH-7 7 M.V.C.507/2015 and conditions of policy. Respondent No.2 stated that the driver of Lorry was not having valid and effective driving licence to driver the Lorry at the time of accident. After thorough investigation the Police have filed Charge Sheet for the offences punishable under Section 279 and 304(A) of IPC R/w Section 187, Section 3 R/w Section 181 of IMV Act. Respondent No.2 stated that Police have specifically mentioned in the Charge Sheet that, the driver has no licence. The owner of Lorry has entrusted his Lorry to a driver who was not having driving licence, thereby he has violated the terms and conditions of policy. Hence, Respondent No.2 is not liable to pay compensation to the Petitioners. Respondent No.2 stated that the Lorry bearing reg.No.KA-01-AG-9666 was used without having valid permit and fitness certificate. Respondent No.2 sought protection under Section 147 and 149 of IMV Act. Further contended that, owner of vehicle has not complied with the provisions of Section 134(C) of IMV Act. Further contended that jurisdictional Police have not complied with the mandatory provisions of Section 158(6) of IMV Act. Respondent No.2 denied entire petition averments. Further contended that the Lorry bearing reg.No.KA-01-AG-9666 not at all involved in the accident. Intentionally the said Lorry has been implicated in collusion with owner and other authorities in order to get unlawful benefit from Insurance Company. Further contended that, if the Petitioners are able to prove Lorry bearing reg.No.KA-01-AG-9666 involved in the alleged accident, it is only because of rash and negligent act of rider of Motor Cycle bearing registration No.KA-02-EK-7146.
SCCH-7 8 M.V.C.507/2015Further, Respondent No.2 stated that insured vehicle is not at all involved in any accident and it was intentionally implicated in collusion with owner, driver and other authorities to get unlawful gain. Respondent No.2 sought permission to take defence on all grounds under Section 170 of IMV Act. The Respondent No.2 stated that the claim made by the Petitioners is highly exorbitant and exaggerated. Under circumstances, Respondent No.2 prayed to dismiss the petition.
6. On the basis of the above pleadings, my predecessors in office have framed the following issues:
ISSUES
1. Whether the Petitioners prove that they are the dependents and legal representatives of deceased Sri.Gangashamaiah?
2. Whether the Petitioners prove that the accident occurred due to rash and negligent driving of the Lorry bearing reg.No.KA-01-AG-9666 by its driver and Sri.Gangashamaiah died due to the injuries sustained in the accident.?
3. Whether the Petitioners are entitled for compensation?
If so, to what extent and from whom?
4. What Order or Award?
7. In order to prove the case the case of petitioners, the Petitioner No.1 got examined herself as P.W.1 and got marked 15 documents as per Ex.P1 to P15. Petitioner No.2 got examined as SCCH-7 9 M.V.C.507/2015 P.W.2 and got marked two documents as per Ex.P.16 and Ex.P.17. Respondent No.1 got examined himself as R.W.1 and got marked four documents as per Ex.R.1 to Ex.R.4. Further Respondent No.1 got marked four documents as per Ex.R.7 to Ex.R.10. On behalf of Respondent No.1 one witness by name Ramesh K.H got examined as R.W.2 and got marked one document as per Ex.R.5. Respondent No.2 Insurance Company got examined its Legal Manager as R.W.3 and got marked one document as per Ex.R.6
8. Heard the arguments. Perused the records.
9. My findings on the above said issues are as under:
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
10. Issue No. 1 : Petitioners stated that, they are dependants and legal representatives of deceased Gangashamaiah. The petitioner No.1 deposed that, she and entire family were totally depending upon his earnings. In support of her contention P.W.1 has produced Ex.P14-Surving family members certificate and Ex.P.15 Copy of Ration Card. On perusal of Ex.P.14, it is clear that, Petitioner No.1 is the wife and the Petitioners No.2 to 6 are SCCH-7 10 M.V.C.507/2015 the children of deceased Gangashamaiah. In the cross examination P.W.1 stated that, her two sons are working and three daughters married. P.W.1 stated that, she is depending upon pension of her husband and her sons are not depending upon said pension amount. Such being the case petitioners No.2 and 3 being the major sons and petitioners No.4 to 6 being married daughters cannot be considered as dependant of Gangashamaiah. The petitioner No.1 being the wife and petitioner No.7 being the mother can be considered as dependant of deceased Gangashamaiah. For the aforesaid reasons I have answered Issue No.1 Partly in the Affirmative.
11. Issue No.2: P.W.1 stated that, on 13.08.2014 at about 7.15 p.m., when her husband was proceeding in a Motor Cycle bearing Registration No.KA-02-EK-7146 near Puttaswamegowda's land on Billanakote-Tyamagodlu Road, the driver of Lorry bearing Registration No.KA-01-EG-9666 driven the same in a rash and negligent manner and dashed against the bike in which her husband was proceeding and caused accident. P.W.1 stated that, due to impact, her husband sustained grievous injuries and died on the spot. P.W.1 stated that, the accident occurred due to rash and negligent act of driver of Lorry bearing Registration No.KA- 01-EG-9666. In this case, Respondent No.1 the owner of Lorry has taken specific contention that, his vehicle is not involved in the accident. Respondent No.1 stated that unknown vehicle caused accident and his vehicle has been falsely implicated.
SCCH-7 11 M.V.C.507/2015Respondent No.1 contended that, on 05.09.2014, the Police have illegally seized his vehicle in order to fix case against him and kept said vehicle illegally till 2nd week of October 2014. Respondent No.1 contended that on 09.10.2014 he filed application before JMFC court, Nelamangala. On 13.10.2014 JMFC Court passed orders on application filed by him. Respondent No.1 stated that, if his vehicle was involved in the accident, the C.P.I could have stated before the Court that the said vehicle seized in connection to the accident. On 14.10.2014 C.P.I of Nelamangala created mahazar to the effect that, the said vehicle involved in the alleged accident and further Respondent No.1, contended that, he engaged one Ramesh.K.H as driver to his Lorry and Hanumantha Raju is not a driver of his Lorry and he does not know about him.
12. P.W.1 has produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Sketch, Ex.P.4 Spot Mahazar, Ex.P.5 Vehicle Seizer Mahazar, Ex.P.6 Post Mortem Report, Ex.P.7 Summons, Ex.P.8 Inquest and Ex.P.9 IMV Report and Ex.P.10 Certified Copy of Charge Sheet. In the cross-examination by the Counsel for Respondent No.2, P.W.1 stated that her husband had driving licence and it was lost at the time of accident. P.W.1 stated that, she has not seen occurrence of accident. In the cross-examination by the Counsel for Respondent No.1, P.W.1 stated that she has not seen the accident. She denied suggestion that the Lorry bearing registration No.KA-01-AG-9666 was not involved in the accident SCCH-7 12 M.V.C.507/2015 and in collusion with the Police said Lorry has been falsely implicated.
13. In this case Petitioner No.2 got examined himself as P.W.2. He has produced Ex.P.16 Photograph and Ex.P.17 C.D. In the cross-examination by the Counsel for Respondent No.1, P.W.2 stated that he is working as an Editor in Zee T.V and his brother Naveen is working as Editor in ETV. P.W.2 stated that entire front portion of bike was damaged. P.W.2 denied that, his father was not having Driving Licence and accident occurred due to his negligence. P.W.2 stated that, he has not lodged complaint stating that, in the accident, Driving Licence of his father was lost. In the cross-examination by the Counsel for Respondent No.1, P.W.2 denied the suggestion that, he has not personally seen the accident. P.W.2 stated that, he has seen the accident at about 20 feet distance. P.W.2 denied the suggestion that in collusion with the Police, the Lorry bearing Registration No.KA-01-EG-9666 has been falsely implicated. P.W.2 admitted that registration number of Lorry is not mentioned in the complaint. P.W.2 admitted that, generally name Manjunath will be used on the board of Lorries. P.W.2 denied the suggestion that on that day, the Lorry bearing Registration No.KA-01-EG-9666 was not proceeding on Billanakote-Thymangondlu road and said was not involved in the accident.
14. In this case, in order to prove his defence, Respondent No.1 himself got examined as R.W.1. He has produced Ex.R.1 Copy of SCCH-7 13 M.V.C.507/2015 Driving Licence of Ramesh K.H, Ex.R.2 Copy of Insurance Policy, Ex.R.3 Copy of Permit and Ex.R.4 Cash Bills- 4 in numbers. In the cross-examination by the Counsel for Petitioner R.W.1 stated " at the time of accident, the said Lorry was carrying sand and jelly from Bangalore rural district to Bangalore City. At the time of accident, one Ramesh was driving the said Lorry. He is my regular driver". R.W.1 stated that name of his Lorry is Bhramanjaneya. However, R.W.1 admitted Ex.P.16 Photographs pertaining to his Lorry and name of said Lorry is Manjunath. R.W.1 denied the suggestion that on 13.08.2014 at 7.50 p.m., his Lorry bearing Registration No.KA-01-EG-9666 met with an accident on Billanakote- Thymagondlu road, which dashed to the Motor Cycle bearing registration No.KA-02-EK-7146. R.W.1 admitted that, Police have seized his Lorry. In the cross- examination by the Counsel for Respondent No.2, R.W.1 stated that, he has gone through Charge Sheet filed by the Police in connection to the accident in question. R.W.1 admitted that Charge Sheet is filed against Hanumantharaju @ Hanumantharayi. R.W.1 admitted that in the Charge Sheet allegation made against Hanumanthuraju that he was not having valid Driving Licence to drive the offending vehicle. R.W.1 voluntarily stated that, he does not know said Hanumantharaju @ Hanumatharai S/o Late Munibairaiah. R.W.1 stated that, "according to me at the time of accident Ramesh K.H. was driving the offending vehicle". R.W.1 denied the suggestion that as Hanumantharaju @ Hanumantharai was not having Driving SCCH-7 14 M.V.C.507/2015 Licence at the time of accident, he is falsely stating that, at the time of accident, Ramesh K.H was driving the offending vehicle. R.W.1 stated that he has not lodged any compliant or filed case against Nelamangala Police in respect of false implication of driver in the accident. R.W.1 stated that, his Power of Attorney Holder has executed Indemnity Bond in the Police Station. In further cross-examination by the Counsel for Petitioner R.W.1 stated that, he is the owner of Brahmanjanaya Transport. R.W.1 stated that, Ex.R.4 Cash Bills issued to the parties and the names of parties are not mentioned in the said bills. Further, R.W.1 has produced Ex.R.7 Certified Copy of Order Sheet in Crime No.201/2014, Ex.R.8 Certified Copy Application filed Under Section 451, 452 and 457 of Cr.P.C. before JMFC Nelamangala, Ex.R.9 Certified Copy of Show Cause Notice, Ex.R.10 Certified Copy of Explanation of Investigating Officer. In further cross- examination by the Counsel for Petitioner, R.W.1 stated that, he is having only one Lorry and he denied the suggestion that, Ex.R.10 is created document.
15. On behalf of Respondent No.1, witness by name Ramesh K.H got examined as R.W.2. He has produced Ex.R.5 Copy of Driving Licence. In the cross-examination by the Counsel for Petitioner, R.W.2 stated that, he has not produced any document to show that at the time of accident, he was working as driver under Respondent No.1. R.W.2 stated that, Respondent No.1 used to transport sand, jelly and M-sand within Bangalore City SCCH-7 15 M.V.C.507/2015 and Rural limit. R.W.2 denied the suggestion that, on 13.08.2014 the Lorry bearing Registration No.KA-01-EG-9666 owned by Respondent No.1 which was driven by him caused the accident. R.W.2 also admitted Ex.P.16 Photographs of Lorry bearing Registration No.KA-01-EG-9666. In further cross-examination by the Counsel for Respondent No.2, R.W.2 admitted that, his name is not shown in the Police document. R.W.2 stated that, except in this case, he has not given evidence before any other court or authority stating that, he is working as a driver under Respondent No.1. R.W.2 has stated that, he has not given statement before the Police. R.W.2 admitted that Respondent No.1 released the Lorry from the custody of Police. R.W.2 denied the suggestion that, since Hanumantharaju has not valid Driving Licence to drive offending Lorry at the time of accident, he is falsely stating that, Hanumantharaju was not the driver of offending Lorry.
16. In this case, Manager of Insurance Company got examined as R.W.3. He has produced Ex.R.6 True Copy of Insurance Policy. In the cross-examination by the Counsel for Respondent No.1, R.W.3 denied the suggestion that, on 13.08.2014 Lorry bearing Registration No.KA-01-EG-9666 not involved in the alleged accident in question. R.W.3 admitted that registration number of Lorry is not mentioned in the complaint. R.W.3 denied the suggestion that, even though said Lorry not involved in the accident, it has been falsely implicated.
SCCH-7 16 M.V.C.507/201517. The counsel for Respondent No.1 argued that, even though Lorry belonging to Respondent No.1 not involved in the accident dated 13.08.2014, the Police have forcibly taken the custody of said lorry on 05.09.2014 and illegally detained in front of Police station. There after Respondent No.1 filed complaint before JMFC Nelamangala and based on said complaint Court issued Show Cause Notice to CPI Nelamangala Circle and in turn CPI Nelamangal submitted Explanation before Hon'ble JMFC Court. Further stated that, if really the vehicle of Respondent No.1 involved in the accident the CPI could have stated in the Reply that, he has seized the Lorry in connection to accident dated 13.08.2014. As the vehicle has been falsely implicated after the court passed order dated 13.10.2014, Vehicle Seizure Mahazar prepared on 14.10.2104. This court perused the documents produced by the Respondent No.1. In Ex.R.7-Order Sheet of Cr.No.201/2014, dated 13.10.2104, the court observed that, vehicle is not seized by the Investigating Officer and Applicant/Respondent No.1 herein is at liberty to take vehicle to his custody and accepted the explanation of Investigating Officer and allegation made against the Investigating Officer dropped. It is to be noted that, in the cross examination Respondent No.1 stated that, according to him at the time of accident, Ramesh K.H was driving his lorry. Further Respondent No.1 stated that, he does not know Hanumantharaju. R.W.1 stated that, he has not lodged any complaint or filed case against Nelamangala Police stating that, there is false implication of driver in the accident SCCH-7 17 M.V.C.507/2015 13.08.2014. On going through the version of Respondent No.1 in the cross-examination, it is clear that respondent No.1 admit that, his Lorry involved in the accident, however it is his contention that, at the time of accident one Ramesh K.H was the driver and Hanumantharaju @ Hanumantharai has been falsely shown as driver of his Lorry. The Respondent No.1 could have taken summons to Investigating Officer to disprove Charge Sheet produced by the petitioners. Further by examining Investigating officer Respondent No.1 could have elicited from his mouth that, his vehicle was not involved in the accident, it has been falsely implicated in the accident dated 13.08.2014. Only on the basis of Explanation submitted by the Investigating Officer to Show Cause Notice and on the ground that, seizure mahazar prepared on next day of order passed by the Learned JMFC Nelamangala, this Tribunal cannot come to conclusion that the vehicle of Respondent No.1 is not at all involved in the accident. Further there is no evidence on record to accept the contention of Respondent No.1 that as on the date of accident, one Ramesh K.H was the driver of his Lorry.
18. Further on going through Ex.P.1 FIR and Ex.P.2 Complaint it is clear that, based on complaint lodged by petitioner No.2 on 13.08.2014 the Jurisdictional Police registered Cr.No.201/2014 against the driver of Manjunatha Lorry for the offences punishable under section 279 and 304 A of IPC read with section 187 of IMV Act. Ex.P.3 Sketch and Ex.P.4 Spot Mahazar reveals that, SCCH-7 18 M.V.C.507/2015 accident occurred on left side of Billanakote-Thyamagondlu road. As per Ex.P.5-Seizure Mahazar Vehicle bearing Registration No. KA-01-AG-9666 seized on 14.10.2014. Further Ex.P.9 IMV Report reveals that, front bumper right side corner portion of Lorry bearing Registration No.KA-01-AG-9666 is damaged and Motor Cycle bearing Registration No.KA-02-EK-7146 sustained damages to front mud guard, front head light assembly, front left side indicator, crash guard right side portion, steering handle bar left side portion and to rear tale lights assembly. Ex.P.6 Post Mortem Report reveals that, death is due to shock and hemorrhage as result of multiple injuries. Further Ex.P.10 Certified Copy of Charge Sheet reveals that, after investigation the CPI of NelamangaIa Police station filed charge sheet against driver Hanumantharaju @ Hanumantharai for the offences punishable under section 279 and 304(A) R/w Section 187 of IMV Act and Section 3 R/w Section 181 of IMV Act. Though the Respondent No.1 asserted that his Lorry not involved in the accident, in the cross-examination he admitted the involvement of his Lorry bearing registration No.KA-01-AG-9666 in the accident dated 13.08.2014. In the cross-examination he asserted that, at the time of accident, one Ramesh K.H was the driver of his Lorry and not Hanumantharaju. However, the Respondent No.1 failed to prove that, at the time of accident Ramesh K.H was the driver of his Lorry. The evidence of P.W.2 and Ex.P1 to 10 makes clear that, accident occurred due to rash and negligent act of driver of Lorry bearing registration No.KA-01-AG-9666 and as result SCCH-7 19 M.V.C.507/2015 Gangashamaiah sustained multiple injuries and succumbed to injuries on the spot. Accordingly, Issue No.2 is answered in the Affirmative.
19. ISSUE No. 3: P.W.1 stated that, her husband was hale and healthy and he was doing agricultural work and tutor, thereby earning income of Rupees 25,000/- per month. P.W.1 stated that, her husband died in a road traffic accident. P.W.1 stated that the dead body of her husband was shifted to Government Hospital, Dabaspeta, wherein post mortem was conducted. P.W.1 stated that she spent more than Rupees 60,000/- towards funeral expenses and transportation of dead body. In this case, as per Ex.P.14 it is clear that the petitioners No.1 to 6 are the legal heirs of deceased Gangashamaiah, who died in a road traffic accident. The petitioner No.1 lost her loving husband in a road traffic accident. Ex.P. 3 and 4 reveals that, accident occurred at Billanakote-Thyamagondlu road and as per Ex.P.6 Post Mortem was conducted at Government Hospital, Dabaspete. Thereafter the dead body brought to his native place and last rites were performed. Under the circumstances as per the Decision reported in Supreme court of India in Special Leave Petition (Civil) No.25590 of 2014, (National Insurance Company Limited V/s Pranay Sethi and Others), it is just and reasonable to award Rupees 15,000/- Rupees 40,000/- and Rupees 15,000/- under the heads of loss of estate, loss of consortium and funeral expenses.
SCCH-7 20 M.V.C.507/201520. In the case on hand, the petitioners claimed compensation of Rs.15,00,000/- . P.W.1 deposed that, due to the death of her husband, she and her children sustained mental and physical agony. She stated that, her husband a farmer was doing agricultural work and also a tutor in their village thereby, earning income of Rs. 25,000/- per month. P.W.1 has produced Ex.P11- Notorized Copy of Pension Payment order, Ex.P12-Notorized Copy of letter dated 11.07.2013 issued by Accountant General and Ex.P.13 RTC. In the cross examination, P.W.1 stated that, her husband was paying income tax and he was only earning member of family. P.W.1 stated that, her husband was getting pension of Rupees 18,000/- per month and now she is getting pension of Rupees 12,000/- per month. It is to be noted as per Ex.P.11 prior to the death Gangashamaiah was getting pension of 17,700/- . In Ex.P.13 RTC there is no recital about type of crop grown in the land bearing Survery No.35/7 of Thotanahalli. Such being the case, in order calculate loss of dependency the income of deceased as on the date of death is considered as Rupees 17,700/-. The petitioner No.1 is the wife and Petitioner No.7 is the old aged mother of deceased Gangashamaiah. Hence out of 17,700/- half is to be deducted, then it would comes to Rupees. 8,850/- per month. In Ex.P.11 the date of birth of Gangashamaiah is mentioned as 10.05.1952. He died in a road traffic accident occurred on 13.08.2014. Hence as on the date of death deceased was aged about 62 years. The multiplier applicable is 7 as per the ruling reported in: 2009 ACJ 1298 Sarala Varma Vs. Delhi SCCH-7 21 M.V.C.507/2015 Transport Corporation. So, the loss of dependency would be Rs.8,850/- x 12 X 7 = Rs.7,43,400-.
21. As per the documents available on record, as on the date of death Gangashamaiah was aged about 62 years. Hence, the Petitioners are not entitled for compensation under the head of Future prospects.
22. Hence, the petitioners are entitled for total compensation of Rs.8,13,400/- under different heads as below.
1 For Loss of Estate Rs. 15,000-00
2 For loss of Consortium Rs. 40,000 -00
3 For funeral expenses Rs. 15,000-00
4 For loss of dependency Rs. 7,43,400-00
Total Rs. 8,13,400-00
17. As already discussed this Court has come to conclusion that, the accident occurred due to rash and negligent act of driver of Lorry bearing registration No.KA-01-AG-9666. Respondent No.1 failed to prove that at the time of accident, one Ramesh K.H was driver of Lorry bearing registration No.KA-01-AG-9666. The Investigating Officer filed Charge Sheet against Hanumantharaju @ Hanumantharai for the offences punishable under section 279 and 304(A) R/w Section 187 of IMV Act and Section 3 R/w Section 181 of IMV Act. As per the evidence on record, as on the date of accident, the driver of offending Lorry bearing registration SCCH-7 22 M.V.C.507/2015 No. KA-01-AG-9666 was not having valid and effective driving licence. Hence Respondent No.2 Insurer is not liable to indemnify the liability of Respondent No.1. Under the circumstances the Respondent No.1 being the owner of offending vehicle is liable to pay compensation to the Petitioners with interest at 9% p.a. from the date of petition till realization. The petition against Respondent No.2 is to be dismissed. Accordingly, Point No.3 is answered partly in the Affirmative.
18. Point No. 4: In view of above discussions, I proceed to pass the following:
ORDER The petition filed by the petitioners under Sec. 166 of I.M.V Act is hereby partly allowed with costs.
The petitioners are entitled for total compensation of Rs.8,13,400/- along with future interest at the rate of 9% p.a. from the date of petition till realization of entire amount.
The petition against Respondent No.2 is dismissed.
The Respondent No.1 being the Owner of offending vehicle is directed to deposit compensation amount within Two months from the date of award.
Out of the compensation amount, Petitioner No.1 is entitled for 70% and Petitioner Nos.2 to 7 SCCH-7 23 M.V.C.507/2015 are entitled for 5% each share. Out of the share of Petitioner No.1, 60% is ordered to be released in her favour by issuing an Account payee cheque with proper identification and remaining 40% shall be kept in F.D. in any Nationalized Bank of her choice for a period of 3 years.
The respective shares of Petitioners No. 2 to 7 is ordered to be released in their favour by issuing an Account Payee Cheque with proper identification.
The Advocate's fee is fixed at Rs. 1000/-.
Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by her, corrected and then, pronounced by me in the open Court on this, the 16th day of November, 2017.) (S.Sujatha) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE I. LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONER/S;
P.W.1. Mangalamma P.W.2. Manjunath T.G. II. LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONER/S:
Ex.P1 Certified copy of FIR
Ex.P2 Certified copy of Complaint
SCCH-7 24 M.V.C.507/2015
Ex.P3 Certified copy of Spot Hand Sketch
Ex.P4 Certified copy of Spot Panchanama
Ex.P5 Certified copy of Vehicle Seizure Panchanma
Ex.P6 Certified copy of PM Report
Ex.P7 Certified copy of Police Summons
Ex.P8 Certified copy of Inquest
Ex.P9 Certified copy of MVI Report
Ex.P10 Certified copy of Charge Sheet
Ex.P11 Notarized copy of Pension Payment Order Ex.P12 Notarized copy of Accountant General Letter dated 11.07.2013.
Ex.P13 RTC Extract Ex.P14 Notarized Xerox copy of Surviving Family Members Certificate Ex.P15 Notarized Xerox copy of Ration Card Ex.P16 Photographs ( 4 in nos) Ex.P17 CD relating to Ex.P.16 Photographs III. LIST OF WITNESSES EXAMINED FOR THE RESPONDENTS:
R.W.1 B.K.Mahesh
R.W.2 Ramesh K.H
R.W.3 Yallappa B.P.
IV. LIST OF DOCUMENTS MARKED ON BEHALF OF
RESPONDENTS:
Ex.R1 Notarized copy of D.L relating to Ramesh K.H
Ex.R2 Notarized copy of Insurance Policy relating to
vehicle bearing Reg.No.KA-01-AG-9666
Ex.R3 Notarized copy of Goods Carriage Permit
relating to vehicle bearing Reg.No.KA-01-AG-
9666
Ex.R4 Cash Bills ( 4 in nos)
Ex.R5 Notarized copy of D.L relating to Ramesh K.H
Ex.R6 True copy of Insurance Policy
Ex.R7 Certified copy of Order Sheet Crime
No.201/2014
SCCH-7 25 M.V.C.507/2015
Ex.R8 Certified copy of Application in Order Sheet
Crime No.201/2014
Ex.R9 Certified copy of Notice
Ex.R10 Certified copy of Reply Notice by Investigating Officer.
(SUJATHA S), IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small causes, Member, MACT-7, Bangalore.