Bangalore District Court
Smt. Manjula vs Managing Director on 3 February, 2015
Before the Motor Accident Claims Tribunal at Bangalore
(SCCH-8)
Present: Shri P.J. Somashekar B.A., LL.B.,
XII Additional Small Causes Judge
and Member, M.A.C.T., Bangalore.
Dated this the 03rd day of February 2015
M.V.C.No.3991/2009
Petitioners 1. Smt. Manjula,
W/o Late Sreeramulu Shivakumar,
Aged about 33 years,
2. Kumari Preethi,
D/o Late Sreeramulu Shivakumar,
Aged about 8 years,
3. Kumari Yashvin,
D/o Late Sreeramulu Shivakumar,
Aged about 3 years,
Petitioner Nos.2 and 3 being minors
Represented their mother and natural
Guardian petitioner No.1.
All are residing at No.710,
14th Cross, 34th Main,
J.P. Nagar I Phase,
Bangalore.
(Sri Alla Baksh, Advocate)
Vs.
Respondents 1. Managing Director,
B.M.T.C. Bangalore - 560 027.
Owner of the vehicle bearing
No.KA-01-F-1563.
(Sri K.M. Sanath Kumar, Advocate)
2. United India Insurance Co. Ltd.,
Branch Office No.40,
1st Floor, Lakshmi Complex,
Opp: Vani Vilas Hospital,
K.R. Road, Fort,
Bangalore.
(Smt. Harini Shivananda, Advocate)
2 (SCCH-8) M.V.C.No.3991/2009
JUDGMENT
This is a claim petition filed by the petitioners against the respondents under Section 166 of Motor Vehicles Act, 1989, for seeking compensation of Rs.2,50,00,000/- for the death of Sri Sreeramulu Shivakumar, Son of Late S. Chandrashekar Naidu in a road traffic accident.
2. The brief facts of claim petition are as under; The petitioners said to be the legal heirs of the deceased Sreeramulu Shivakumar in their claim petition, were alleged that, on 05-08-2008 at about 6.40 a.m., Sreeramulu Shivakumar was proceeding on his motor cycle bearing No.KA-05-EL-8541 along with his wife i.e., petitioner No.1, when he was reached near Pradeep Junction, the bus was came from back side of Active Honda bearing No.KA-05-EL-8541 with a high speed in a rash and negligent manner and over took the left side, due to which the accident was occurred. So, the Sreeramulu Shivakumar and the pillion rider were fell down and the Sreeramulu Shivakumar has sustained grievous injuries. So on the way to hospital he was succumbed due to the accidental injuries. The pillion rider being the wife of the deceased has also sustained grievous injuries. The accident was occurred due to the rash and negligent driving of the BMTC bus bearing No.KA-01-F-1563.
3 (SCCH-8) M.V.C.No.3991/2009
3. Prior to the accident he was hale and healthy working as a software engineer/consultant in Wipro Technologies, Bangalore and getting monthly salary of Rs.56,345/- and his gross salary of Rs.81,900/-. The accident in question was taken place on the rash and negligent driving of the BMTC Bus driver. Thereby, the City Market Traffic Police have registered the case against the BMTC bus driver in their police station crime No.32/2009 for the offences punishable u/s 279, 337 and 304(A) of IPC. The respondent No.1 and 2 being the owner and insurer are jointly and severally liable to pay the compensation and prays for allow the claim petition.
4. In response of the notice, the respondents were appeared through their respective counsel and filed their written statement. The respondent No.1 being the owner in his written statement has alleged that the claim petition is not maintainable for non joinder of necessary parties, as the driver of the offending vehicle is a necessary party and he has denied about the involvement of the offending vehicle as alleged in the column No.22 of the claim petition and he has alleged that the BMTC bus bearing No.KA-01- F-1593 was in its schedule from Naganayakanahalli to K.R. Market, when the bus was proceeding in Kalasipalya main road slowly, cautiously by observing all traffic rules and regulations, when the bus was in front of super lodge, the deceased came from 4 (SCCH-8) M.V.C.No.3991/2009 behind the bus in his motor cycle without there being licence to ride his motor cycle in rash and negligently and tried to over take the bus and lost the control over his bike and fell down. So, the driver of the bus has immediately applied the break and stopped the bus. In this process, the deceased himself exposed to that angle and caused the accident. The accident in question was taken place on the rash and negligent riding of the deceased. If the deceased has taken little care while over taking the bus, the alleged accident could have been avoided and he has denied the averments made in column No.1 to 6, 8 to 14(a) of the claim petition and he has denied the age, avocation and income of the deceased and further he has alleged that they have filed the false complaint in order to get the compensation and he has denied that the petitioners who are none other than the legal heir of the deceased and he has admitted that as on the date of the alleged accident the policy was in existence. So, he is not liable to pay any compensation to the petitioners and prays for reject the claim petition.
5. The respondent No.2 being the insurer in its written statement has alleged that the claim petition filed by the petitioners is not maintainable either in law or on facts and he has denied the averments made in column No.22 of the claim petition that the deceased was aged about 38 years and earning a sum of 5 (SCCH-8) M.V.C.No.3991/2009 Rs.70,267/- per month as a Engineer/consultant in Wipro Technologies, Bangalore and the accident in question was taken place on the rash and negligent driving of the BMTC bus driver, but he has admitted about the issuance of the policy in respect of the offending vehicle in favour of the first respondent and its liability subject to terms and conditions of the policy and he has denied the age, avocation and income of the deceased and prays for reject the claim petition.
6. On the basis of the pleadings of the parties, my Predecessor has framed the following issues.
1. Whether the petitioners prove that the death of deceased Shri Sreeramulu Shivakumar, caused in a road traffic accident that occurred on 05-08-2008 at 6.40 a.m., near Kalasipalyam main road, i.e., near Pradeep Junction is on account of rash and negligent driving of BMTC bus driver bearing registration No.KA-01-F-1563?
2. Whether the petitioners are entitle to compensation? If so, to what extent and from whom?
3. What Order or Award?
7. The petitioners in order to prove their claim petition, the petitioner No.1 has examined herself as PW1 and got marked the documents as Ex.P1 to Ex.P34 and they have examined two more witnesses on their behalf as PW2 and PW3 and got marked the 6 (SCCH-8) M.V.C.No.3991/2009 documents as Ex.P35 to Ex.P39. The respondent No.1 has examined his driver as RW1 and got marked the documents as Ex.R2 and Ex.R3, under the impression that the earlier Ex.R1 is marked, but only two documents have been marked as Ex.R2 and Ex.R3. So, in the annexure shown as Ex.R1 and Ex.R2. The respondent No.2 has examined its Administrative Officer as RW2 and no documents have been got marked.
8. Heard arguments on both side.
9. My finding on the above issues are as under:
Issue No.1: Affirmative Issue No.2: Partly affirmative Issue No.3: As per the final order for the following REASONS
10. Issue No.1:
The petitioners said to be the legal heirs of the deceased were approached this court on the ground that on 05-08-2008 at about 6.40 a.m., the deceased and his wife were proceeding in a motor cycle towards Kalasipalya main road, when they were reached near Pradeep Junction, the bus was came from back side of Active Honda bearing No.KA-05-EL-8541 with a high speed in a rash and negligent manner and over took the left side, due to which the accident was occurred, as a result the deceased and his wife were fell down and sustained grievous injuries, on the way to the 7 (SCCH-8) M.V.C.No.3991/2009 hospital the deceased was succumbed due to the accidental injuries. Thereby, the petitioners said to be the legal heirs and dependants of the deceased were filed the instant claim petition against the respondents.
11. The petitioners were filed the instant claim petition against the respondents for seeking compensation. In response of the notice the respondent No.1 did not appear nor file his written statement, as he was placed exparte. The respondent No.2 has appeared through its counsel and filed its written statement. After full fledged trial, my Predecessor has allowed the claim petition filed by the petitioners as partly by awarding the compensation of Rs.12,30,000/- with interest at the rate of 6% per annum. Thereby, the petitioners have challenged the award passed by this Tribunal before the Hon'ble High Court of Karnataka by filing a MFA No.4756/2012 and the said MFA was came to be allowed and the judgment and award passed by this Tribunal on 07-04-2011 has been set aside and matter stands remitted back to this Tribunal for consideration afresh by providing opportunities to both the parties to adduce additional oral and documentary evidence to substantiate their contention with a direction to this Tribunal to dispose of the matter expeditiously giving top priority, as the accident is of the year 2008. After receipt of the case papers, the respondent No.1 has appeared through his counsel and filed 8 (SCCH-8) M.V.C.No.3991/2009 the application. The learned counsel for the petitioners has submitted no objection. Accordingly, exparte order passed against the respondent No.1 came to be set aside and the respondent No.1 being the owner of the BMTC bus has filed the written statement.
12. The petitioners in order to prove their claim petition, the petitioner No.1 has filed her affidavit as her chief-examination as PW1, in which she has stated that on 05-08-2008 at about 6.40 a.m., herself and her husband were proceeding towards Kalasipalyam market, when they were reached near Pradeep Junction, Kalasipalya main road, Bangalore, the bus driver has driven the same in a rash and negligent manner and over took the left side of the Activa Honda, due to which the accident was occurred, they were fell down and sustained grievous injuries, on the way to the hospital her husband was died due to the accidental injuries. The accident in question was taken place on the rash and negligent driving of the BMTC Bus driver. Thereby, the City Market Traffic Police have registered the case against the BMTC bus driver in their police station crime No.32/2009 for the offences punishable u/s 279, 337 and 304(A) of IPC. The PW1 in her cross examination has admitted that one Ramareddy was also following their motor cycle, as he was coming on his own Activa Honda scooter on the date of the alleged accident as they left the house at the same time as he was following her husband motor 9 (SCCH-8) M.V.C.No.3991/2009 cycle from behind and he has denied that her husband was came fast thereby the accident was taken place. One Ramareddy has filed the false case against the BMTC bus driver.
13. The PW2 who is said to be the eye witness in his evidence has stated that he saw the accident which was occurred on 05-08-2008 at about 6.40 a.m., near Pradeep Junction, Kalasipalya main road, as the Sreeramulu Shivakumar has met with an accident and died on the spot and his wife Smt. Manjula was also sustained grievous injuries. The accident was occurred due to the rash and negligent driving of the BMTC Bus driver. The PW2 in his cross examination has admitted that the deceased Sreeramulu Shivakumar is none other than his friend and he has lodged the complaint before the police and on the date of accident there was less traffic on the road, but he has denied that the bus was moving very slow.
14. The RW1 being said to be the driver of the offending vehicle as on the date of the alleged accident in his evidence has stated that on 05-08-2008, he was the driver of the BMTC bus bearing No.KA-01-F-1563, the bus was proceeding in Kalasipalya main road slowly, cautiously by observing all the traffic rules and regulations, when he was reached in front of Super Lodge, the deceased came from behind the bus in his motor cycle, without there being licence to ride his motor cycle rash and negligently 10 (SCCH-8) M.V.C.No.3991/2009 and tried to over take the bus, at that time he lost the control over his bike and fell down. Immediately, he has applied the break and stopped the bus, as such the alleged accident was occurred. The RW1 in his cross examination has admitted that he is not the party in the instant claim petition and he has denied that the accident in question was taken place on his own negligence.
15. The learned counsel for the respondents have cross examined the PW1 and PW2, but nothing is elicited to disbelieve their evidence, even there was no suggestion to the PW1 and PW2 that the accident in question was taken place on the rash and negligent driving of the deceased. Though, the respondent No.1 has examined his driver, but his evidence will not help the first respondent nor the second respondent to disbelieve the evidence of the PW1 and PW2.
16. The petitioners in support of the oral evidence they have produced the documents marked as Ex.P1 to Ex.P39. Ex.P2 is the information filed by one R. Ramareddy, son of Ramachandra Reddy in which he has stated that on 05-08-2008 his friend Sreeramulu Shivakumar and his wife were proceeding towards Kalasipalyam Market to bring the flowers and after purchase his friend and his wife were proceeding on their motor cycle bearing No.KA-05-EL- 8541 and he was following them on his vehicle, when his friend was reached near Pradeep Junction, the bus driver has driven the 11 (SCCH-8) M.V.C.No.3991/2009 same in a rash and negligent manner and over took his left side and caused the accident to the motor cycle, as a result the bus wheel was ran over on his head and chest, as a result he was sustained injuries. So, immediately they were shifted the injured to the Victoria Hospital, but on the way to the hospital, he was succumbed due to the accidental injuries. So based on the information the City Market Traffic Police have registered the case against the BMTC bus driver in their police station crime No.32/2009 for the offences punishable u/s 279, 337 and 304(A) of IPC. Though, the learned counsel for the respondents have cross examined the PW1 and PW2, but nothing is elicited to disbelieve their evidence. If at all the accident was not taken place on the rash and negligent driving of the bus driver, nothing is prevented to the driver of the bus nor the respondent No.1 and 2 to challenge the complaint and charge sheet filed by the I.O., but the reasons best known to the respondents have not placed any materials to show that they have challenged the complaint lodged against the offending vehicle driver nor the charge sheet. In the absence of the materials on record, it is clear that the Ex.P1 and Ex.P2 are remained unchallenged. Ex.P5 and Ex.P6 are the panchanama and sketch prepared by the I.O., clearly reflects though there is a sufficient space towards eastern side of the road, but the reasons best known to the bus driver has took the bus towards western 12 (SCCH-8) M.V.C.No.3991/2009 side where the deceased was proceeding along with his wife on his motor cycle that too towards extreme western side of the road and there was no explanation while cross examination of the PW1 and PW2 that there are vehicles are proceeding on the eastern side of the road, thereby the bus driver has took the bus towards western side, if that is so the matter would have been different. In the absence of the explanation from the respondents while cross examination of the PW1 and PW2 nor in the evidence of the RW1, it is clear that the accident in question was taken place on the rash and negligent driving of the bus driver, that is the reason why the accident was occurred and the deceased was succumbed due to the accidental injuries. Ex.P3 is the charge sheet clearly reflects that the I.O., after conducting the investigation has filed the charge sheet on the ground that the accident in question was taken place on the rash and negligent driving of the BMTC bus driver. Though, the RW1 being the driver of the bus has denied that the accident in question was taken place on his own negligence, but the police records clearly reflects that the accident in question was taken place on the rash and negligent driving of the BMTC bus driver. Ex.P4 is the postmortem report clearly reflects that the deceased was succumbed due to the accidental injuries. So, the documents marked as Ex.P1 to Ex.P39 are coupled with the oral evidence of the PW1 and PW2. Though, the respondent No.1 has examined the 13 (SCCH-8) M.V.C.No.3991/2009 driver of the offending vehicle, but his evidence will not help the respondent No.1 to prove his defence. On the other hand the petitioners have proved their case through oral and documentary evidence that the accident in question was taken place on the rash and negligent driving of the BMTC Bus driver. Hence, I am of the opinion that the issue No.1 is answered as affirmative.
17. Issue No.2:
The PW1 being said to be the wife of the deceased in her evidence has stated that herself and her husband were proceeding on their motor cycle, the driver of the bus has driven the same in a rash and negligent manner and over took the left side of the Activa Honda, due to which the accident was occurred. So, they were fell down and sustained grievous injuries, on the way to the hospital her husband was died due to the accidental injuries. Prior to the accident her husband was hale and healthy working as a Engineer/Consultant in Wipro Technologies, Bangalore and his gross salary of Rs.81,900/- per month and entire family is depending on his income, as he is only the bread earner in the family has met with an accident, due to which the entire family has become destitute. The PW1 in her cross examination has admitted that her husband was qualified Diploma in Electronics and Communications and her husband salary used to credit in his S.B. account in ICICI Bank, earlier her husband was worked at IGATE 14 (SCCH-8) M.V.C.No.3991/2009 for 6 years and thereafter he was working at Wipro, since one year one month and her in laws are no more and denied that her husband not getting monthly salary of Rs.81,900/- and she is working as a teacher not depending upon the income of the deceased.
18. The PW3 who is said to be the HR Manager of M/s Wipro Technologies in his evidence has stated that the deceased Sreeramulu Shivakumar was employee as Engineer/consultant with M/s. Wipro Technologies with effect from 18-05-2007 and he was getting monthly salary of Rs.81,900/- and he was hard working person and was amongst the top performers of the company and he was entitled to various bones, increments and awards from the company. The PW3 in his cross examination has admitted that in all 1 lakh 65 thousand persons were working in the said company and there is a facility of group insurance, PF and gratuity who are working in the company and they took the group insurance from ICICI Bank and company is paying the premium of the employees who are working in the company and after the death of Sreeramulu Shivakumar Reliance Company has paid a sum of Rs.25,00,000/- under a group insurance policy and it was credited to their company account, later on they have paid Rs.25,00,000/- to the wife of the deceased and at any time the company can remove the employees and the persons who are working in the 15 (SCCH-8) M.V.C.No.3991/2009 company are not the permanent employees, at any time they can left the company and there is no facility for appointment of compensative ground and he has also admitted that as per the Ex.P36 the monthly income of the deceased of Rs.51,127/-. So one thing is clear though, the PW1 being the wife of the deceased in her evidence she has stated that her husband was drawing monthly salary of Rs.81,900/-, but whereas the RW3 who is said to be the HR Manager of M/s. Wipro Technologies in his cross examination has admitted that as per the Ex.P36 bank statement reveals that the deceased was drawing monthly salary of Rs.51,127/-. Ex.P30 to Ex.P36 are reflects about the salary drawn by the deceased, but as per the Ex.P36 the deceased salary was of Rs.51,127/-, that is the reason why the PW3 being the HR Manager in his cross examination has admitted that as per the Ex.P36 i.e., bank statement, the deceased was drawing monthly salary of Rs.51,127/-. Ex.P27 is the appointment letter goes to show that the Wipro Technologies, appointed the deceased as Consultant at Bangalore, in Project Stream on basic salary of Rs.20,475/- and his probationary for a period of one year from the date of appointment. On completion of the probation period, if the company finds to be suitable for appointed post, the company shall be confirmed and communicated to the employee. But the reasons best known to the petitioners have not placed any materials on 16 (SCCH-8) M.V.C.No.3991/2009 record to show that after completion of the probationary period the deceased appointment was confirmed as permanent employee. However, the PW3 being the HR Manager in his cross examination has admitted that the deceased was not the permanent employee. So one thing is clear that the deceased was not the permanent employee. Ex.P23 is the acknowledgment issued by the income tax department for the assessment year 2007-08, the deceased yearly income shown as Rs.3,89,606/-. So, as per the Ex.P36, the deceased was drawing the monthly salary of Rs.51,127/-, even the PW1 in his cross examination has categorically admitted that as per the bank statement the deceased was drawing salary of Rs.51,127/- p.a. Ex.P12 to Ex.P22 are clearly reflects about the education of the deceased. So, these documents supports the case of the petitioners and moreover it is not in dispute that he was not working as a Engineer at Wipro Company, but there is a dispute about drawing of the salary, according to the PW3 who is the HR Manager of the company, the deceased was drawing monthly salary of Rs.51,127/- and he has also admitted the Reliance Company under the group insurance policy an amount of Rs.25,000/- has been paid to the legal heirs of the decreased.
19. So, the deceased was drawing monthly salary of Rs.51,127/- as on the date of the alleged accident. The respondents have not placed any materials to show that as on the 17 (SCCH-8) M.V.C.No.3991/2009 date of the alleged accident the deceased not drawing the monthly salary of Rs.51,127/-. In the absence of the materials on record, the evidence of the PW3 and the materials on record are clear that as on the date of the alleged accident the deceased was drawing monthly salary of Rs.51,127/-. So, the deceased income is taken into consideration as Rs.51,127/- per month. Ex.P4 is the postmortem reported clearly reflects that as on the date of the alleged accident the deceased was aged about 38 years. Ex.P14 is the marks card of the deceased clearly reflects that he was born on 01-07-1969. So as per the Ex.P14 the deceased was aged about 39 years as on the date of the alleged accident. So, the deceased age is taken into consideration as 39 years as on the date of the alleged accident. Admittedly, the petitioners who are none other than the wife and daughters of the deceased, as the Ex.P25 and Ex.P26 are clearly reflects that the petitioner No.2 and 3 are none other than the daughters and the petitioner No.1 is the wife of the deceased.
20. The learned counsel for the petitioners while canvassing his arguments has submitted that the future prospects is to be taken into consideration while granting the compensation under the head of loss of dependency and the said counsel has drawn the court attention on the decision reported in AIR 2009 SC 3104 reads like thus;
18 (SCCH-8) M.V.C.No.3991/2009 (B) Motor Vehicles Act (59 of 1988), S. 168 -
Compensation - Determination - Addition to income for future prospects - Deceased having permanent job and was below 40 years - Addition of 50% of actual salary should be made to income of deceased towards future prospects.
21. On careful perusal of the above said decision, in the said decision their lordship held that while granting the compensation the court has to consider the future prospects, if the deceased having a permanent job and was below 40 years addition of 50% of actual salary should be made to income of deceased towards future prospects. In the instant case admittedly the PW3 being the HR Manager of Wipro Technologies in his cross examination has admitted that the appointment of the deceased is not the permanent job, at any time can be remove from the company. So that itself is clear that the appointment of the deceased in the company is not a permanent job. Therefore, I do respect to the decision relied by the learned counsel for the petitioners is not application to the case on hand, as own witness of the petitioners has clearly admitted that the appointment of the deceased is not the permanent job.
22. The learned counsel for the petitioners has drawn the court attention on the decision reported in ILR 2009 KAR 4475 in between Smt. G. Vijayakumari and others vs. T. Mohan 19 (SCCH-8) M.V.C.No.3991/2009 Subramanyam and another. On careful perusal of the above said decision, in the said decision the deceased was aged about 48 years at the time of his death and the claimants are entitled for future income of the deceased of 30% of the net income drawn by the deceased as on the date of his death, but while deduction of the personal and living expenses of the deceased, the Tribunal has deducted 1/3rd towards personal expenses of the deceased on the ground that the dependants are four in numbers, who are the wife and children of the deceased. The Tribunal ought to have deducted 1/4th towards the personal expenses of the deceased in view of number of dependants. So by virtue of Sarlaverma's case whether the number of the dependants of the family 2 to 3, the deduction of the personal and living expenses of the deceased is 1/3rd. Therefore, the principles laid down in the above said decision is applicable to the case on hand. In the instant case there are 3 dependants of the deceased.
23. The learned counsel for the respondent No.2 while canvassing his arguments has submitted that the deceased was not the permanent employee. So, the question of future prospects does not arise and the said counsel has drawn the court attention on the judgment of the Hon'ble High Court of Karnataka passed in MFA 1425/2007. On careful perusal of the above said judgment, in the said judgment, the deceased was employee of the 20 (SCCH-8) M.V.C.No.3991/2009 HP Global Soft Ltd., he met with an accident, Tribunal awarded the compensation of Rs.26,10,000/-. Thereby, the legal heirs of the deceased were challenged the award before the Hon'ble High Court of Karnataka. In the said judgment the insurance company has taken up the contention that the claimants have received an amount of Rs.9,00,000/- towards the death claims settlement through the employee of the deceased, that amount has to be deducted and there was no materials placed on record to show that the deceased was appointed permanently, that is the reason why the future prospects was not taken into consideration. In the instant case also the petitioners have not placed any materials to show that the appointment of the deceased was permanent job nor placed any materials to show that he was appointed permanently, as the PW3 in his cross examination has admitted that the appointment of the deceased was not the permanent job. Therefore, the above said judgment which was relied by the learned counsel for the respondent No.2 is directly applicable to the case on hand, as their lord ship by virtue of the decision reported in AIR 1998 SC 3191, an amount of Rs.9,00,000/- which was received by the legal heirs of the deceased from the employer towards death claims settlement of the deceased has been deducted. In the instant case also the PW3 in his cross examination has categorically admitted that the petitioner have 21 (SCCH-8) M.V.C.No.3991/2009 received an amount of Rs.25,00,000/- from the Reliance Company under the group insurance policy. So, that amount has to be deducted by virtue of the above said decision, as the PW3 in his evidence has admitted that the company has paid the premium to the insurance company relating to the employees who are working in the company.
24. The deceased income is already taken into consideration as Rs.51,127/- per month. So yearly income of the deceased comes to Rs.6,13,524/- and his age is already taken into consideration as 39 years as on the date of the alleged accident. So by virtue of decision reported in 2009 ACJ 1298 in between Sarla Verma and others Vs. Delhi Transport Corporation and another, the personal deduction of the deceased where the member of the dependant family members is 2 to 3 should be 1/3rd has to be deducted towards personal and living expenses of the deceased. So, the personal and living expenses of the deceased should be deducted 1/3rd out of the yearly income of Rs.6,13,524/- it comes to Rs.4,09,016/-. As per Sarlaverma Vs. Delhi Transportation Corporation Ltd., the multiplier applicable to the deceased is 15. So Rs.4,09,016X15=Rs.61,35,240/- towards loss of dependency. So the petitioners are entitled for the said amount towards loss of dependency.
22 (SCCH-8) M.V.C.No.3991/2009
25. The petitioner No.1 is none other than the wife of the deceased, so Rs.10,000/- is awarded towards loss of consortium and the petitioner Nos.1 to 3 are none other than the wife and daughters of the deceased, so Rs.30,000/- is awarded towards loss of love and affection. Rs.10,000/- is awarded towards loss of estate and Rs.20,000/- is awarded towards transportation of dead body and funeral and obsequies.
26. Thus the total award stands as follows:
1.Loss of dependency Rs. 61,35,240-00
2.Loss of consortium Rs. 10,000-00
3.Loss of love and affection Rs. 30,000-00
4.Loss of estate Rs. 10,000-00
5.Transportation of dead body and Rs. 20,000-00 funeral expenses Total Rs. 62,05,240-00
27. Less the compensation of Rs.25,00,000/- already received from the Reliance Company under the group insurance policy. So, Rs.62,05,240-00 - Rs.25,00,000-00 = 37,05,240-00. So, the petitioners are entitled compensation of Rs.37,05,240/-.
28. The respondent No.2 being the insurer in its written statement has admitted about the issuance of the policy in respect of the offending vehicle and its validity from 30-12-2007 to 29-12- 2008 and the accident was taken place on 05-08-2008. So one thing is clear that as on the date of the alleged accident the policy was in existence.
23 (SCCH-8) M.V.C.No.3991/2009
29. The learned counsel for the respondent No.2 while canvassing his arguments has submitted that the claim petition filed by the petitioners is not maintainable in view of Section 53 of ESI Act and drawn the court attention on the decision reported in 2011 ACJ 161 in between Shridevi and others vs. S. Sarojini and another. On careful perusal of the above said decision, in the said decision the Tribunal has dismissed the claim petition on the ground that the deceased is an employee covered under the Employees State Insurance Act. Thereby, the claimants who are the legal heirs were challenged the same before the Hon'ble High Court of Karnataka and the Hon'ble High Court of Karnataka allowed the appeal by granting the compensation on the ground that the deceased is a third party. Therefore, the provisions of Section 53 of the ESI Act would not come in the way to grant compensation to the deceased. The prohibition of Section 53 of ESI Act would come into play only when compensation is claimed against the employer of the deceased. Therefore, I do respect to the decision relied by the learned counsel for the respondent No.2, but the facts and circumstances of the present case and the decision are different.
30. The learned counsel for the respondent No.2 has drawn the court attention on the decision reported in ILR 1997 KAR 302 in between Smt. Vasumathy Reddy vs. Union of India and 24 (SCCH-8) M.V.C.No.3991/2009 others. On careful perusal of the above said decision, but the facts and circumstances of the present case and the above said decision are different.
31. So, one thing is clear that as on the date of the alleged accident the policy was in existence and the driver of the offending vehicle was holding valid and effective driving licence. If at all the offending vehicle driver was not holding the valid and effective driving licence the I.O., would have charge sheeted against the offending vehicle driver for the offence punishable under Section 181 of MV Act. Ex.P3 is the charge sheet filed by the I.O., nowhere discloses that the offending vehicle driver was not holding valid and effective driving licence. Therefore, the respondent No.1 and 2 being the owner and insurer are jointly and severally liable to pay the compensation. But in view of the valid insurance policy the respondent No.2 alone is liable to pay the compensation to the petitioners with interest at 6% p.a. from the date of petition till its realization. In the result, the issue No.2 is answered as partly in the affirmative.
32. Issue No.3:
In view of my finding on issue Nos.1 & 2, I proceed to pass the following:
25 (SCCH-8) M.V.C.No.3991/2009 ORDER The petition filed by the petitioners under section 166 of M.V. Act is partly allowed, with costs. The petitioners are entitled for compensation of Rs.37,05,240/- together with interest at the rate of 6% p.a. from the date of the claim petition till its realisation.
The respondents are jointly and severally liable to pay the compensation. In view of the valid insurance policy the respondent No.2 being the insurer shall pay the compensation amount with interest at the rate of 6% p.a. from the date of the claim petition till its realisation within a period of 30 days from the date of this order.
On deposit of the compensation amount together with interest, 50% is allotted to the share of petitioner No.1 and 25% each is allotted to the share of petitioner Nos.2 and 3 by way of apportionment of compensation amount.
Out of the share amount of petitioner No.1, 40% of the amount shall be deposited in her name in any nationalised or scheduled bank of her choice for a period of three years and the remaining 60% shall be released to her by means of a/c payee cheque on proper identification. However, she is at liberty to withdraw the periodical interest accrued on her deposit amount from time to time.
26 (SCCH-8) M.V.C.No.3991/2009 Out of the share amount of petitioner Nos.2 and 3 being the minors entire their share amount shall be deposited in any nationalised or scheduled bank till attaining their age of majority. However, the petitioner No.1 being the natural guardian of the petitioner Nos.2 and 3 is at liberty to withdraw periodical interest accrued on their deposit. After attaining their age of majority the entire amount shall be released to them without any further proceedings.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
Dictated to the stenographer, transcript thereof, corrected by me and then pronounced in the open court on this 03rd day of February 2015.
(P.J.Somashekar), XII Addl. Judge-Member, MACT, Bangalore.
ANNEXURE List of the witnesses examined on behalf of petitioners:
PW1 Smt. Manjula PW2 Sri Ramareddy R. PW3 Sri Pritam Diwakar Shetty
List of the documents exhibited on behalf of petitioners:
Ex.P1 True copy of FIR
Ex.P2 True copy of Complaint
Ex.P3 True copy of Charge sheet
27 (SCCH-8) M.V.C.No.3991/2009
Ex.P4 True copy of PM Report
Ex.P5 True copy of Spot Mahazar
Ex.P6 True copy of Sketch
Ex.P7 Death certificate
Ex.P8 Original identity card of deceased
Ex.P9 Marriage invitation card
Ex.P10 Marriage certificate
Ex.P11 Original telephone bill
Ex.P12 Original PUC 1st year marks card of deceased
Ex.P13 Original PUC 2nd year marks card of deceased
Ex.P14 Original SSLC marks card of deceased
Ex.P15 Original diploma certificate
Ex.P16 Original 2nd year diploma marks card of deceased
Ex.P17 Original 3rd year diploma marks card of deceased
Ex.P18 Original letter of appreciation
Ex.P19 Original certificate of excellence
Ex.P20 Original provisional certificate cum consolidated
marks card
Ex.P21 Original passing certificate in diploma course
Ex.P22 Original certificate in IT Service Management
Ex.P23 Acknowledgment of IT return of income for the
assessment year 2007-2008 (3 sheets)
Ex.P24 Salary offer
Ex.P25 & Two school certificates
Ex.P26
Ex.P27 Appointment letter
Ex.P28 Welcome letter
Ex.P29 Office identity card
Ex.P30 to Pay slip for the month of April 2008 to July 2008 Ex.P33 28 (SCCH-8) M.V.C.No.3991/2009 Ex.P34 Salary certificate Ex.P35 5 QPCL documents Ex.P36 Bank statement Ex.P37 & Documents relating to group insurance policy Ex.P38 Ex.P39 Letter issued by the Wipro company List of the witnesses examined on behalf of respondents:
RW1 Sri Veerappa RW2 Smt. Kusuma K.
List of the documents marked on behalf of respondents:
Ex.R1 Notarized attested true copy of Driving licence Ex.R2 Register extract (P.J. Somashekar), XII Addl. Judge-Member, MACT, Bangalore.