Bangalore District Court
Sri.Savukaiah vs Sri.Prasanna Kumar.G on 2 July, 2016
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS TRIBUNAL,
BANGALORE CITY. SCCH-14
PRESENT: Basavaraj Chengti., B.Com.,LL.B.,(spl)
Member, MACT,
XVI ADDL. JUDGE,
Court of Small Causes,
BANGALORE.
MVC No.2259/2015
Dated this the 2nd day of July 2016
Petitioner/s : 1. Sri.Savukaiah,
S/o Bettaiah,
aged about 62 years,
2.Smt.Channajamma,
W/o Sri.Savukaiah,
Aged about 56 years,
Both are R/at No.227,
Gundapura, Malavalli Taluk,
Mandy District.
V/s
(By pleader Sri ASG)
Respondent/s 1.Sri.Prasanna Kumar.G.
S/o Gangadhar N.
R/at No.121, Baba Sahebara Palya,
Kengeri post,
Bangalore-60.
2.Reliance Gen.Insurance Co.Ltd.
No.28, East wing,
5th floor, Centenary building,
M.G.Road,
Bangalore-01.
(R1- Exparte,
R2-By pleader Sri HKR)
SCCH-14 2 MVC No.2259/2015
JUDGMENT
This claim petition is filed by the petitioners U/Sec.166 of Motor Vehicles Act for grant of compensation for the death of Parashivamurthy S/o Savukaiah in a road traffic accident.
2. Brief averments of the petition are as under:
The petitioners are the parents of the deceased Parashivamurthy who was aged 35 years, was working as a Team Leader in Chaque Jour HR Services Pvt. Ltd., and was earning Rs.15,000/- per month. On 30.05.2015 at about 05.20 am, the deceased was riding motorcycle bearing No.KA-11-EB-3526 on Kanakapura Main Road from west to east direction on left side of the road, slowly cautiously by observing traffic rules and regulations. When he reached opposite to Shankar Foundation compound, at that time, tempo traveler bearing No.KA-05-AD-7058 driven by its driver came in a rash and negligent manner with high speed from opposite direction came to his extreme side and dashed to the motorcycle. Due to the impact, the deceased fell down and sustained severe injuries to his vital organs and died on the spot. Immediately, body was shifted to KIMS hospital and after post mortem, the dead body was handed over to the petitioners who have spent around Rs.50,000/- for performing final rites. Due to the untimely death of the deceased, the petitioners now living in miserable condition without having any source of income. Kumar Swamy Layout police have registered Cr.No.61/2015 against the driver of the tempo traveler bearing No.KA-05-AD-7058 for the offences punishable U/s 279 and 304(A) of IPC. The respondents are the owner and insurer of the said vehicle SCCH-14 3 MVC No.2259/2015 and are liable to pay compensation. Hence, the petitioners have sought for awarding compensation of Rs.30,00,000/- with cost and interest.
3. In pursuance of the notice, the respondent No.2 has appeared before the Court through his counsel and filed his statement of objection. In spite of service of notice, the respondent No.1 has remained absent and hence, he is placed exparte. The respondent No.2 has admitted the issuance of policy in favour of the respondent No.1 in respect of tempo traveler bearing No.KA-05-AD- 7058, but he has denied the other averments of the petition as false. He has contended that the petition is bad for non -joinder of insurer and insured of motorcycle, that the accident has taken place due to sole negligence of the deceased and there was no negligence on the part of the driver of insured vehicle, that the respondent No.1 and the concerned police have not complied their mandatory duties, that the driver of insured vehicle was not holding a valid and effective driving license and the vehicle was not having a valid permit on the date of accident. He has denied the age, occupation and income of the deceased and manner of accident with involvement of insured vehicle and contended that the compensation claimed by the petitioners is highly exorbitant, excessive, arbitrary, unreasonable and without any basis. Hence, he has sought for dismissal of the claim petition with cost.
4. On the basis of above pleadings, the following issues were framed:
SCCH-14 4 MVC No.2259/2015ISSUES Whether the petitioners prove that
1. Parashivamurthy G.S. s/o Savukaiah died due to injuries sustained by him in an accident occurred on 30.05.2015 at about
05.20 a.m., near Gubblala gate, on Kanakapura Main road, Bangalore, arising due to rash and negligent driving of driver of Tempo Traveler bearing No. KA-05-AD-
7058?
2 Whether the petitioner is entitled for any compensation? If so, how much and from whom?
3. What Order ?
5. During the evidence, the petitioners have examined the petitioner No.1 as PW-1 and examined two witnesses as PW-2 and 3. They have got marked documents as Ex.P1 to 13. The respondent No.1 has not adduced any evidence on his behalf. However, he has taken summons to the driver of insured vehicle, but it remained unserved.
6. Heard the arguments and perused the records.
7. My findings on the above issues are as under:-
Issue No.1 : In affirmative.
Issue No.2 : In affirmative, for Rs.16,94,000/-
From the respondent No.2.
Issue No.3 : As per final order :
for the following:
REASONS
8. ISSUE NO.1: The respondent no.1 is the owner and the respondent no.2 is the insurer of Tempo Traveller bearing no.KA-05- SCCH-14 5 MVC No.2259/2015 AD-7058. The respondent no.1 remains exparte and the respondent no.2 has contested the matter. He has denied the averments of the petition as false, but has not specifically denied the occurrence of the accident and involvement of the insured vehicle therein. He has specifically contended that the accident has occurred due to rash and negligent riding of motorcycle by the deceased himself. The respondent no.2 has failed to establish his specific defence by producing evidence. Hence, the averments of written statement of the respondent no.2 remained as mere pleading without any proof.
9. PW-1:Savukaiah is the petitioner no.1. He is the father of the deceased. He has reiterated entire averments of the petition. He has stated that his son died due to the injuries sustained by him in the accident which has occurred due to rash and negligent driving of driver of Tempo Traveller bearing no.KA-05-AD-7058. He is not an eye witness to the accident. Hence, his evidence as to manner of accident is inadmissible, but his evidence as to death of his son due to injuries sustained by him in the accident is believable. Except bare denials, nothing is elicited from him in cross examination.
10. The petitioners have examined PW-2 and 3 and produced copies of police records to corroborate the oral evidence of PW-1. The copies of police records at Ex.P-1 to 7. On perusal of police records, it reveals that Kumarswamy layout traffic police have registered Cr.No.61/15 against the driver of Tempo Traveller bearing no.KA-05- AD-7058 on the information given by the brother-in-law of the deceased by name Basavaraju, investigated the matter and filed charge sheet against the said driver for the offences punishable U/s SCCH-14 6 MVC No.2259/2015 279 and 304A of IPC. The charge sheet is prima facie evidence as to negligence of the driver of Tempo Traveller. Inquest report and P.M.Report at Ex.P-4 and 5 confirm the death of Parashivamurthy due to injuries caused to him in road accident. There was no delay in lodging complaint. Specific allegation is made against the driver of Tempo Traveller. IMV report reveals that both the vehicles were damaged. Such damages reveal the involvement of Tempo Traveller and motorcycle in the accident. Brake system of the vehicles was in order. It is opined that the accident was not due to mechanical defects of the vehicles. The driver of Tempo Traveller is the best witness to speak about the accident. The respondent no.2 has not examined the said driver. There is nothing to disbelieve the correctness of investigation done by the police. Evidence of PW-2 and 3 confirms the death of Parashivamurthy due to accidental injuries. There is no rebuttal evidence by the respondent no.2 to prove his defence.
11. The counsel for the respondent no.2 has argued that PW-1 is not an eye witness and PW-2 is tutored witness, that the complainant has not seen the accident, that sketch reveals that the accident has occurred on the middle of the road and motorcycle was badly damaged on its front portion and these aspects indicate that there was head on collusion between the vehicles, that the deceased was also negligent and contributed to the occurrence of the accident. Hence, he has sought for holding the deceased as negligent. But, on careful perusal of the panchanama and sketch, it discloses that the accident has occurred on northern portion of the road. The motorcycle was proceeding from west to east and Tempo Traveller SCCH-14 7 MVC No.2259/2015 bearing no.KA-05-AD-7058 was going from east to west. Southern portion was the correct side for the Tempo Traveller, whereas northern portion was correct side for the motorcycle. The road was of 60' width and the place of accident is situated at a distance of 35' from southern edge and 25' from northern edge. There was deviation of direction of Tempo Traveller before the accident. It came to wrong side of the road and caused accident. If Tempo Traveller bearing no.KA-05-AD-7058 was driven on the correct side and if its driver had taken little care and caution, the accident would not have occurred. The deceased was proceeding on his correct side. His motorcycle was 5' inside the northern portion from centre. Therefore, no negligence can be attributed against the deceased. Evidence of PW-2 establishes the negligence of the driver of Tempo Traveller bearing no.KA-05-AD-7058. He withstood the cross examination. There is nothing on record to believe that he is a tutored witness. Evidence of PW-1 and 2 and contents of Ex.P-1 to 7 establish the case of the petitioners. Hence, I hold that the accident has occurred due to rash and negligent driving of the driver of Tempo Traveller bearing no.KA-05-AD-7058 in which Parashivamurthy sustained grievous injuries and died. The respondent no.2 has failed to prove the sole or contributory negligence of the deceased for the occurrence of the accident. Thus, the petitioners have proved the issue and I answer the same in affirmative.
12. ISSUE NO.2: The petitioners are claiming to be the parents of the deceased. Evidence of PW-1 and contents of Inquest report, voter ID and driving licence at Ex.P-4, 8 to 10 establish the relationship between the petitioners and the deceased. There is SCCH-14 8 MVC No.2259/2015 nothing on record to disbelieve the oral and documentary evidence in that regard. The deceased was unmarried. The petitioners are aged about 70 years and 57 years respectively. Looking to their age, it can be said that they were depending upon the deceased who was a bachelor. PW-1 has stated that his other sons are residing separately. There is nothing on record to disbelieve his evidence. The petitioners are the LRs and dependents of the deceased. Hence, they are entitled for compensation under all heads.
13. PW-1:Savukaiah has stated that the deceased was aged 34 years, was working as team leader in Chaque Jour HR Services Pvt. Ltd., and was earning Rs.15,000/- p.m., PW-3: Leo Vijaya has supported the version of PW-1 as to occupation and income of the accused. The petitioners have produced copy of driving licence of the deceased to prove his age. The date of birth of the deceased is shown as 10.6.1981 in the said driving licence which is marked as Ex.P-10. There is nothing on record to disbelieve the date of birth mentioned in it. There is no document to contradict the evidence of PW-1 and contents of Ex.P-10 as to the age of the deceased. Hence, I believe the contents of driving licence and hold that the deceased was aged 33 years on the date of accident. Appropriate multiplier is 16.
14. Evidence of PW-1 and 3 and contents of appointment letter, pay slips and bank statement at Ex.P-11 to 13 reveal that the deceased was working in Chaque Jour HR Services Pvt., Ltd., The occupation of the deceased is described in the complaint as team leader in Flipkart and in inquest report as worker in private firm. PW- 3 has explained that the deceased was deputed to Flipkart prior to SCCH-14 9 MVC No.2259/2015 accident. The counsel for the respondent no.2 has vehemently argued about shortfalls of the evidence of PW-1 and 3 regarding occupation and income of the deceased such non-existence signature of the deceased on appointment letter as to his acceptance to the offer letter, non examination of the author of Ex.P-11 and 12, non existence of authorization to PW-3 from HR department. But, on perusal of pay slips at Ex.P-12, it reveals that the deceased has drawn net salary of Rs.11,223/-, Rs.10,866/-, Rs.10,866, Rs.9,810/- and 10,585/- for the months from January to May 2015. All the said amounts are credited to the bank account of the deceased from time to time as can be seen from bank statement at Ex.P-13. There is nothing on record to disbelieve the bank statement. When the amount credited to the bank tallies with the pay slips at Ex.P-12, we have to believe the oral evidence of PW-1 and 3 and documents at Ex.P-11 and 12 as to occupation and income of the deceased. Hence, argument of the counsel for the respondent no.2 is liable to be rejected. Consequently, I hold that the deceased was working in Chaque Jour HR Services Pvt., Ltd., as delivery executive. His last drawn gross salary was Rs.11,308/-. After deduction of Professional Tax, his salary comes to Rs.11,108/- which attracts no income tax. Hence, I am inclined to hold that the deceased was earning Rs.11,000/- p.m., His annual salary comes to Rs.1,32,000/-. He was aged 33 years as on the date of accident. The counsel for the respondent no.2 has argued that since, question regarding future prospects is referred to larger bench of Hon'ble Supreme Court and the deceased was not a permanent employee, but was working on contract basis, future prospects shall not be considered. But, it is to be noted that Hon'ble Supreme Court in Munnalal Jain case has held SCCH-14 10 MVC No.2259/2015 that future prospects shall be considered. Our Hon'ble High Court has held in ruling reported in ILR 2015 KAR 3793 (Smt.M.R.Sushma Vs N.Muniraja and Ors) as under:
A) Motor Vehicle Act, 1988 - Section 173(1) Accident claim -Judgment and award-Appeal by the wife of deceased for encashment-Insurer's appeal challenging the quantum of compensation -
Addition of 50% towards future prospectus and also the multiplier to the adopted in the case of self employed or persons with fixed wages, in case, the deceased victim was below 40 years-Multiplier to be adopted-Held, in the case of self employed or persons with fixed wages, in case the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing compensation payable towards future prospectus and such actual income should be income after paying the tax, if any and addition should be 30% in case the deceased victim was in the group of 40 to 50 years.- The multiplier is to be used with reference to the age of the deceased and there is certainty with regard to the age of the deceased and not with regard to the age of the dependents as there will always be room for dispute as to whether the age of the eldest or youngest or even the average, etc, is to be taken. - The tribunal is justified in taking addition of 50% towards future prospectus and adopting the multiplier of '16' considering the age of the deceased.
B) Motor Vehicle Act, 1988-Section 173 (1) accident claim-Judgment and award-Insurer's appeal challenging the quantum of compensation -
Grievance of the Insurance Company, the employer has paid premium towards group personal accident policy of insurance and the wife and parents of the deceased have received it. Claim for deduction in the total compensation - Non production of any SCCH-14 11 MVC No.2259/2015 evidence by the insurer-Re-Appreciation of evidence on record-Held, The insurer is not sure as to whether the dependents of the deceased have received the sum paid by the employer of the deceased towards group personal accident policy of insurance and there is no pleading in their objection statement and there is no documentary evidence produced by the insurer in support of its claim for deduction. - The insurer has utterly failed to substantiate its prayer for deduction of Rs.12,00 lakhs from out of the total compensation payable to claimants compensation enhanced.
The said rulings are applicable to this case. Future prospects shall have to be considered. The deceased was aged 33 years, 50% amount shall be added towards future prospects. After such addition, gross income of the deceased comes to Rs.1,98,000/- p.a., Since, he was a bachelor, 50% amount shall be deducted towards personal expenses of the deceased. On such deduction, net income of the deceased comes to Rs.99,000/-. The petitioners have lost their dependency. They have lost love and affection and estate of the deceased. They have spent amount for transportation of dead body and funeral expenses. There is no positive evidence regarding such expenses. Loss of dependency of the petitioners would be Rs.99,000X16= Rs.15,84,000/-. They are entitled for a compensation of Rs.40,000/- towards loss of love and affection, Rs.40,000/- towards loss of estate and Rs.30,000/- towards transportation of dead body and funeral expenses. Thus, the petitioner is entitled for just and reasonable compensation as under:
SCCH-14 12 MVC No.2259/2015.
1 Loss of dependency Rs.15,84,000/- 2 Loss of estate Rs.40,000/-
3 Loss of love and affection Rs.40,000/- 4 Transportation and Rs.30,000/-
funeral expenses TOTAL Rs.16,94,000/-
The petitioners are entitled for interest @ 9% pa, from the date of petition till the date of payment.
15. The respondents are the owner and insurer of Tempo Traveller bearing no.KA-05-AD-7058. The accident has occurred due to rash and negligent driving of the driver of said vehicle. Then, the respondent no.1 is vicariously and the respondent no.2 is contractually liable to pay compensation to the petitioners. The respondent No.2 has contended that the driver of the insured vehicle was not holding a valid the effective driving license and the vehicle was not having a valid policy on the date of accident. He has failed to prove his defence by producing evidence. Hence, the defence set up by the respondent No.2 is unacceptable. He is liable to deposit the amount before the Court within one month from the date of order. The petitioners are entitled to share the amount with proportionate interest as under:
The petitioner No.1a Rs.6,94,000/- The petitioner No.1b Rs.10,00,000/-
Hence, I answer the issue as above.SCCH-14 13 MVC No.2259/2015
16. ISSUE NO.3: In view of above discussion and findings, I proceed to pass the following:
ORDER The petition filed by the petitioners U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioners are entitled for a compensation of Rs.16,94,000/- with interest @ 9% per annum from the date of petition till the date of payment.
The respondent No.2 is liable to pay to the petitioners a compensation of Rs.16,94,000/- with interest. He is directed to deposit the amount before court within one month from the date of order.
The petitioners are entitled to share the compensation as under;
The petitioner No.1a Rs.6,94,000/- The petitioner No.1b Rs.10,00,000/-
After deposit, Rs.2,00,000/- out of the share of the petitioner No.1 and Rs.4,00,000/- out of share of the petitioner No.2 shall be deposited in their respective names in any nationalized or scheduled bank for a period of 3 years. Balance and interest shall be released in their SCCH-14 14 MVC No.2259/2015 favour through account payee cheque with proper identification.
Advocate's fee is fixed at Rs.5,000/-. Draw award accordingly.
(Dictated to the Stenographer, directly on computer and then corrected by me and pronounced in the open court, on this the 2nd day of July 2016.) (Basavaraj Chengti) XVI ADDL.JUDGE & MACT, Court of Small Causes, Bangalore.SCCH-14 15 MVC No.2259/2015
ANNEXURE WITNESSES EXAMINED AND DOCUMENTS MARKED FOR PETITIONERS AND RESPONDENTS:
PW.1 Savukaiah PW.2 Nagesh PW.3 Leo Vijay Respondent' s Ex.P1 - Copy of FIR with complaint Ex.P2 - Copy of Sketch Ex.P3 - Copy of Mahazar Ex.P4 - Copy of Inquest Report Ex.P5 - Copy of PM Report Ex.P6 - Copy of IMV Report Ex.P7 - Copy of Charge Sheet
Ex.P8 - Copy of Voter ID of petitioner no.1 Ex.P9 - Copy of Voter ID of petitioner no.2 Ex.P10- Copy of Driving Licence of Parashiva Murthy Ex.P11- Copy of Appointment Letter Ex.P12- Pay slips (5 in nos.) Ex.P13- Bank Statement Respondent's NIL XVI ADDL.JUDGE, Court of Small Causes, BANGALORE.SCCH-14 16 MVC No.2259/2015
Dt.02.07.2016 P-ASG R1-Exparte R2-HKR For Judgment Order pronounced in open court vide separate judgment.
ORDER The petition filed by the petitioners U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioners are entitled for a compensation of Rs.16,94,000/- with interest @ 9% per annum from the date of petition till the date of payment.SCCH-14 17 MVC No.2259/2015
The respondent No.2 is liable to pay to the petitioners a compensation of Rs.16,94,000/- with interest. He is directed to deposit the amount before court within one month from the date of order.
The petitioners are entitled to share the compensation as under;
The petitioner No.1a Rs.6,94,000/- The petitioner No.1b Rs.10,00,000/-
After deposit, Rs.2,00,000/- out of the share of the petitioner No.1 and Rs.4,00,000/- out of share of the petitioner No.2 shall be deposited in their respective names in any nationalized or scheduled bank for a period of 3 years. Balance and interest shall be released in their favour through account payee cheque with proper identification.
Advocate's fee is fixed at Rs.5,000/-. Draw award accordingly.
XVI ADDL.JUDGE, Court of Small Causes, BANGALORE.SCCH-14 18 MVC No.2259/2015
AWARD SCCH NO.14 BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA : BANGALORE CITY MVC No.2259/2015 Petitioner/s : 1. Sri.Savukaiah, S/o Bettaiah, aged about 62 years,
2.Smt.Channajamma, W/o Sri.Savukaiah, Aged about 56 years, Both are R/at No.227, Gundapura, Malavalli Taluk, Mandy District.
V/s (By pleader Sri ASG) Respondent/s 1.Sri.Prasanna Kumar.G. S/o Gangadhar N. R/at No.121, Baba Sahebara Palya, Kengeri post, Bangalore-60.
2.Reliance Gen.Insurance Co.Ltd.
No.28, East wing, 5th floor, Centenary building, M.G.Road, Bangalore-01.
(R1- Exparte,
R2-By pleader Sri HKR)
WHEREAS, this petition filed on by the
petitioner/s above named U/sec.166 of the M.V.C. Act, praying for the compensation of Rs.
(Rupees ) for the
SCCH-14 19 MVC No.2259/2015
injuries sustained by the petitioner/Death of in a motor
Accident by vehicle No.
WHEREAS, this claim petition coming up before
Sri/Smt.Basavaraj Chengti, XVI Addl.Judge, Court of Small Causes, Bangalore, in the presence of Sri/Smt. Advocate for petitioner/s and of Sri/Smt. Advocate for respondent.
ORDER The petition filed by the petitioners U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioners are entitled for a compensation of Rs.16,94,000/- with interest @ 9% per annum from the date of petition till the date of payment.
The respondent No.2 is liable to pay to the petitioners a compensation of Rs.16,94,000/- with interest. He is directed to deposit the amount before court within one month from the date of order.
The petitioners are entitled to share the compensation as under;
The petitioner No.1a Rs.6,94,000/-
The petitioner No.1b Rs.10,00,000/-
After deposit, Rs.2,00,000/- out of the share of the petitioner No.1 and Rs.4,00,000/- out of share of the petitioner No.2 shall be deposited in their respective names in any nationalized or scheduled bank for a period of 3 years. Balance and interest shall be released in their SCCH-14 20 MVC No.2259/2015 favour through account payee cheque with proper identification.
Advocate's fee is fixed at Rs.5,000/-.
Given under my hand and seal of the Court this day of 2015.
MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, METROPOLITAN AREA: Bangalore.
By the __________________________________ Petitioner/s Respondent No.1 No.2 __________________________________ Court fee paid on petition 10-00 Court fee paid on Powers 01-00 Court fee paid on I.A. Process Pleaders Fee _____________________________ Total Rs. ---------------------------------------
Decree Drafted Scrutinised by
MEMBER, M.A.C.T.
METROPOLITAN: BANGALORE
Decree Clerk SHERISTEDAR
SCCH-14 21 MVC No.2259/2015
SCCH-14 22 MVC No.2259/2015
SCCH-14 23 MVC No.2259/2015
REASONS