Bangalore District Court
No.1 And 2 Are The Parents Of vs No.1 Is Solely Responsible on 16 April, 2016
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 16th day of April, 2016.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com.,LL.B.(Spl.),L.L.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
E.C.A.No.47/2014
C/w E.C.A.No.49/2014
1. Smt. Sunitha, ..... PETITIONERS IN
W/o. Late Raju, E.C.A.No.47/2014
Aged about 33 years.
2. Kum. Pooja,
D/o. Late Raju,
Aged about 5 years.
3. Kum. Rajamma,
D/o. Late Raju,
Aged about 6 months.
All are residing at C/o. G. Rajanna,
No.320, 1st Main Road,
5th Cross, Nelagadaranahalli,
Nagasandra Post,
Bangalore - 73.
(By Sri. M. B. Ravikumar, Adv.,)
V/s
1.Shantha Mallappa, ..... RESPONDENTS IN
S/o. Late Chandrappa, E.C.A.No.47/2014
Aged about 65 years,
No.32, Rukmini Nagar,
SCH-7 2 E.C.A.No.47/2014
C/w E.C.A.No.49/2014
4th Main Nelagadaranahalli,
Bangalore - 560 073.
2. ICIC Lombard General
Insurance Company Ltd.,
ICICI Lombard House,
414, Veer Savarkar Marg,
Near Siddivinayaka Temple,
Prabhadevi,
Mumbai - 400025.
By its Manager.
(R-1 By Sri. Divakar. P. B. Adv.,)
(R-2 By Sri. Gururaj Salur, Adv.,)
1. Shanappa, ..... PETITIONERS IN
S/o. Late Venkatappa, E.C.A.No.49/2014
Aged about 66 years.
2. Smt. Shanamma,
W/o. Shanappa,
Aged about 50 years.
3. Kum. Devamma,
D/o. Shanappa,
Aged about 16 years.
All are residing at,
Nagasandra Post, Rukmini Nagar,
Nelgadaranahalli
Main Road, Opp. Kanva Bazaar,
Bangalore - 560 073.
Petitioners No.1 and 2 are the parents of
Deceased Nagappa S/o. Shanappa,
Aged about 18 years and the Petitioner
No.3 is the daughter of Petitioners No.1
and 2 and she is represented by her
father and natural guardian
SCH-7 3 E.C.A.No.47/2014
C/w E.C.A.No.49/2014
Sri.Shanappa.
(By Sri. M. B. Ravikumar, Adv.,)
V/s
1.Shantha Mallappa, ..... RESPONDENTS IN
S/o. Late Chandrappa, E.C.A.No.49/2014
Aged about 65 years,
No.32, Rukmini Nagar,
4th Main Nelagadaranahalli,
Bangalore - 560 073.
2. ICIC Lombard General Insurance
Company Ltd.,
ICICI Lombard House,
414, Veer Savarkar Marg,
Near Siddivinayaka Temple,
Prabhadevi,
Mumbai - 400025.
By its Manager.
(R-1 By Sri. Divakar. P. B Adv.,)
(R-2 By Sri. Gururaj Salur, Adv.,)
JUDGMENT
As per the Order dated 09.12.2014 passed on I.A.No.I in E.C.A.No.47/2014, E.C.A.No.49/2014 is clubbed with E.C.A.No.47/2014 and the common evidence and trial is conducted in E.C.A.No.47/2014 and hence, E.C.A.No.47/2014 and E.C.A.No.49/2014 are pending for consideration and disposal by passing a common judgment.
SCH-7 4 E.C.A.No.47/2014
C/w E.C.A.No.49/2014
2. The Petitioners No.1 to 3 in E.C.A.No.47/2014 have filed the present petition as against the Respondents No.1 and 2 under Section 22 of the Workmen Compensation Act, 1923, praying to grant compensation of Rupees 15,00,000/- in respect of death of Sri. Raju.
3. The brief averments of the Petitioner's case are as follows;
a) The Petitioner No.1 is a wife and the Petitioners No.2 and 3 are the children of the deceased Raju, aged about 24 years and they are residing in the said address.
b) The deceased was working as a Coolie under Sri. Shantha Mallappa, the Respondent No.1, who is the R.C. Owner of Tempo 407 bearing Registration No.KA-02-AB-9963.
c) On 02.04.2012, the complainant and others, who are, namely, Nagappa and others were went to work at Bagepalli as Coolie in a vehicle bearing Registration No.KA-02-AB-9963 Tempo 407 and when they were coming at Bagepalli, near Sunkalamma Temple and Gangothri Petrol Bunk at NH-7, at that time, the driver of the said vehicle in order to overtake other vehicle lost control over the vehicle and due to that, the vehicle got turtle and due to the accident, the complainant sustained injuries and the persons, who were in the vehicle also sustained grievous injuries and thereafter, they were shifted to Chikkaballapura Government Hospital. Due to the negligence of the driver of Respondent No.1, SCH-7 5 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 the deceased Raju succumbed to the injuries, for which, the Respondent No.1 is solely responsible.
d) They have spent Rupees 30,000/- towards funeral and other charges and due to the sudden demise of deceased Raju, they are undergoing great pain and sufferings, mental shock and agony.
e) During the course of employment under Respondent No.1, the deceased Raju died due to rash and negligent driving of the driver of the Respondent No.1 on 02.04.2012.
f) The deceased Raju was hale and healthy and at the time of his death, he was earning Rupees 10,000/- per month by doing coolie work. He was contributing his entire income for his family maintenance. After his untimely death, his family has put to great hardship for their livelihood and he was the only bread earner of the family. In view of the said circumstances, they are claiming a sum of Rupees 15,00,000/- as compensation.
g) The Petitioners No.2 and 3 are minors, the Petitioner No.1 has got burden to provide education to Petitioners No.2 and 3 and to perform their marriage.
h) The Petitioner No.1 got issued a legal notice dated 20.02.2013 sent on 22.02.2013 for herself and also on behalf of other Petitioners, calling upon the Respondents to pay compensation of Rupees 15.00 Lakhs for untimely death of her husband and father of Petitioners No.2 ad 3 within 15 days from SCH-7 6 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 the date of receipt of the notice and the notice sent through RPAD on 22.02.2013 to the Respondent No.1 has been returned unserved "Not Claimed" and notice on Respondent No.2 duly served on 25.02.2013. Even after service of notice, the Respondents have not replied nor paid the compensation amount.
i) The Bagepalli Police have registered a case as against the driver of the Respondent No.1 in Crime No.74/2012 for the offences punishable under Section 279, 337, 338 and 304(A) of IPC and thereafter, on the investigation, the said Police filed a charge sheet as against the driver of the Respondent No.1 and the said matter is pending before the Principal Civil Judge (Junior Dn.) and JMFC Court, Bagepalli, Chikkaballapura District.
j) The Respondent No.1 being the owner of the vehicle Tempo bearing Registration No.KA-02-AB-9963 and the Respondent No.2 is the insurer of the said vehicle. Hence, both the Respondents are liable to pay the compensation as claimed by them.
k) If the Respondents fail to deposit the compensation, then they are liable to pay the penalty.
l) Inspite of several requests, follow ups and demands made by them, the Respondents are failed to settle the claim so far.
SCH-7 7 E.C.A.No.47/2014
C/w E.C.A.No.49/2014
m) They have filed the present case within the stipulated
period and also come within the jurisdiction of this Hon'ble Court as they are permanent residents of Peenya, Bangalore City.
n) There is no legal proceedings are filed and/or pending concerning any part of subject-matter of this petition in any Court within their knowledge. Hence, this petition.
4. Initially, though the notice was duly served on the Respondent No.1, he was remained absent and hence, he was placed as exparte. Later, the Respondent No.1 has appeared through his Learned Counsel and as per the Order dated 20.01.2015 passed on I.A.No.III, the exparte order is set-aside and the Respondent No.1 is taken on file. The Respondent No.1 has filed the written statement.
5. Initially, though the notice was duly served on the Respondent No.1, it was remained absent and hence, it was placed as exparte on 28.10.2014. Later, the Respondent No.2 has appeared through its Learned Counsel and as per the Order dated 02.05.2015 passed on I.A.No.IV, the exparte order is set-aside and the Respondent No.2 is taken on file. The Respondent No.2 has not filed the written statement.
6. The Respondent No.1 in E.C.A.No.47/2014 inter-alia denying the entire case of the Petitioners, has further contended as follows;
a) The petition is not maintainable.
SCH-7 8 E.C.A.No.47/2014
C/w E.C.A.No.49/2014
b) He is admitting that, the deceased Raju and Nagappa,
who were working under him.
c) The amount claimed by the Petitioners is an
exorbitant.
d) The Bagepalli Police have registered a case as against
the driver of him in Crime No.74/2012 and thereafter, charge sheet has been filed in C.C.No.82/2013 and the driver of him is contesting the said matter before the JMFC at Bagepalli.
e) If this Hon'ble Court come to the conclusion that, there is a rash and negligent driving by the driver of him, then, if this Hon'ble Court passes any award against the Respondents, naturally, he has taken policy from the Respondent No.2 and the said policy was valid as on the date of accident and the Respondent No.1 has been indemnified by the Respondent No.2 in case of accident.
f) The vehicle bearing Registration No.KA-02-AB-9963, 407 Tempo was having valid permit. The R.C. was in the name of him.
g) The vehicle was driven by one Reddy @ Shivareddy and he was having valid driving licence to drive the vehicle.
h) If this Hon'ble Curt is not pleased to dismiss the said petition, he will suffer irreparable loss and great hardship, SCH-7 9 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 whereas, no hardship would be caused to the Petitioners. Hence, prayed to dismiss the petition.
7. The Respondent No.2 in E.C.A.No.47/2014 inter-alia denying the entire case of the Petitioners, has further contended as follows;
a) The petition for grant of compensation on account of the death of one Raju, who was died in an alleged accident that occurred on 02.04.2012 involving the TATA 407 Goods Vehicle bearing Registration No.KA-02-AB-9963, is not maintainable either in law or on facts.
b) It admits that, having insured the TATA 407 Goods Vehicle bearing Registration No.KA-02-AB-9963 in terms of the policy of insurance issued, which is in accordance with the provisions of the Motor Vehicles Act and the liability of it, is limited to the terms and conditions of the policy of insurance issued.
c) If the owner of the vehicle, i.e., the Respondent No.1 not contesting the claim petition or he is placed exparte before this Hon'ble Court or he has colluded with the Petitioners, then it be permitted to contest the matter on all the grounds available under Section 170 of the Motor Vehicles Act.
d) The deceased was not an employee of the Respondent No.1 and there is no existed relationship of employee and SCH-7 10 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 employer between the deceased and the Respondent No.1. Hence, the Petitioners are not entitled to maintain the claim petition.
e) At the time of alleged accident, the caused driver Reddy @ Shiva Reddy was not driving the TATA 407 Goods Vehicle bearing Registration No.KA-02-AB-9963. As per complaint given by one Shivakumar, it is mentioned that, Srinivas Reddy was driving the vehicle and caused accident, but, thereafter, the Petitioners have implicated the driver Reddy @ Shiva Reddy by colluding with the Respondent No.1 and jurisdictional Police to get unlawful gain as against it. Hence, it is not liable to pay any compensation.
f) Without prejudice, on the date of alleged accident, the driver of the Tata 407 Goods vehicle bearing Registration No.KA- 02-AB-9963 was not holding valid and effective driving licence to drive the same, which is in contravention of the policy conditions and also the Motor Vehicles Act. In this regard, the jurisdictional Police have filed a Charge Sheet under Section 181 of M.V. Act. The owner of the vehicle, i.e., the Respondent No.1, has allowed the driver to drive the same, knowingly fully well that, he had no valid and effective driving licence, the same is violation of policy terms and conditions and also Motor Vehicles Act. Hence it is not liable to pay any compensation.
g) On the date of alleged accident, the Tata 407 Goods Vehicle bearing Registration No.KA-02-AB-9963 was not having valid permit and fitness certificate to ply in the public place, but, SCH-7 11 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 the Respondent No.1 knowing fully allowed to ply the said vehicle in public place without valid permit and fitness certificate, hence, the same is violation of policy terms and conditions and also Motor Vehicles Act. Therefore, it is not liable to pay any compensation.
h) The Tata 407 bearing Registration No.KA-02-AB-9963 was registered as Goods vehicle and it has issued policy as same, but, at the time of alleged accident, it was used for carrying passengers and the deceased was traveling in the said vehicle as a paid passenger, he was not an employee of the Respondent No.1 and there is no existed relationship of employee and employer between the deceased and the Respondent No.1. Hence, the Petitioners are not entitled to maintain the claim petition.
i) The seating capacity of the Tata 407 bearing Registration No.KA-02-AB-9963 is only two, but, at the time of accident, more than twenty passengers were traveling in the said vehicle as against to its seating capacity, the same is violation of policy terms and conditions and also Motor Vehicles Act. Hence, it is not liable to pay any compensation.
j) There is no nexus between the death of the deceased and the alleged accident. The deceased was not died due to injuries sustained in the alleged accident dated 02.04.2012. Hence, petition is not maintainable.
SCH-7 12 E.C.A.No.47/2014
C/w E.C.A.No.49/2014
k) The compensation claimed for Rupees 15,00,000/- is highly excessive, exorbitant and disproportionate to the earnings and the nature of job of the deceased and the Petitioners are trying to make a windfall out of an unfortunate accident and there was no nexus between the death of the deceased and alleged accident. Hence, prayed to dismiss the petition with exemplary costs.
8. The Petitioners No.1 to 3 have filed E.C.A.No.49/2014 as against the Respondents No.1 and 2 under Section 22 of the Workmen Compensation Act, 1923, praying to grant compensation of Rupees 15,00,000/- in respect of death of Sri. Nagappa.
9. The brief averments of the Petitioners' case are as follows;
a) The Petitioners No.1 and 2 are the parents and the Petitioner No.3 is a sister of the deceased Nagappa, aged about 18 years and they are residing in the said address.
b) The deceased was working as a Coolie under Sri.Shantha Mallappa, the Respondent No.1, who is the R.C. Owner of Tempo 407 bearing Registration No.KA-02-AB-9963.
c) On 02.04.2012, the complainant and others, who are, namely, Nagappa and others were went to work at Bagepalli as Coolie in a vehicle bearing Registration No.KA-02-AB-9963, Tempo SCH-7 13 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 407 and when they were coming at Bagepalli, near Sunkalamma Temple and Gangothri Petrol Bunk at NH-7, at that time, the driver of the said vehicle in order to overtake other vehicle, lost control over the vehicle and due to that, the vehicle got turtle and due to the accident, the complainant sustained injuries and the persons, who were in the vehicle also sustained grievous injuries and thereafter, they were shifted to Chikkaballapura Government Hospital and due to the negligence of the driver of Respondent No.1, the deceased Nagappa succumbed to the injuries, for which, the Respondent No.1 is solely responsible.
d) They have spent Rupees 60,000/- towards funeral and other charges as the body was taken to Bheemanahalli of Yadgiri District and due to the sudden demise of deceased Nagappa, they are undergoing great pain and sufferings, mental shock and agony.
e) During the course of employment under Respondent No.1, the deceased Nagappa died due to rash and negligent driving of the driver of the Respondent No.1 on 02.04.2012.
f) The deceased Nagappa was hale and healthy and at the time of his death, he was earning Rupees 10,000/- per month by doing coolie work. He was contributing his entire income for his family maintenance. After his untimely death, his family has put to great hardship for their livelihood and he was the only bread earner of the family. In view of the said circumstances, they are claiming a sum of Rupees 15,00,000/- as compensation.
SCH-7 14 E.C.A.No.47/2014
C/w E.C.A.No.49/2014
g) The Petitioner No.3 is a minor and the Petitioners No.1
and 2 have got burden to provide education to her and to perform her marriage.
h) The Petitioners No.1 and 2 have got issued a legal notice dated 20.02.2013 sent on 22.02.2013 for them and also on behalf of the Petitioner No.3, calling upon the Respondents to pay compensation of Rupees 15.00 Lakhs for untimely death of their son and brother respectively within 15 days from the date of receipt of the notice and the notice sent through RPAD on 22.02.2013 to the Respondent No.1 has been returned unserved as "Not Claimed" and notice on Respondent No.2 duly served on 25.02.2013.
i) The Bagepalli Police have registered a case against the driver of the Respondent No.1 in Crime No.74/2012 for the offences punishable under Section 279, 337, 338 and 304(A) of IPC and thereafter, on the investigation, the said Police filed a charge sheet as against the driver of the Respondent No.1 and the said matter is pending before the Principal Civil Judge (Junior Dn.) and JMFC Court, Bagepalli, Chikkaballapura District.
j) The Respondent No.1 being the owner of the vehicle Tempo bearing Registration No.KA-02-AB-9963 and the Respondent No.2 is the insurer of the said vehicle. Hence, both the Respondents are liable to pay the compensation as claimed by them.
SCH-7 15 E.C.A.No.47/2014
C/w E.C.A.No.49/2014
k) If the Respondents fail to deposit the compensation,
then, they are liable to pay the penalty.
l) Inspite of several requests, follow ups and demands made by them, the Respondents are failed to settle the claim so far. Hence, this petition.
10. Initially, though the notice was duly served on the Respondent No.1, he was remained absent and hence, he was placed as exparte. Later, the Respondent No.1 has appeared before this Tribunal through his Learned Counsel and as per the Order dated 20.01.2015 passed on I.A.No.III, the exparte order is set-aside and the Respondent No.1 is taken on file. The Respondent has filed the written statement.
11. Initially, though the notice was duly served on the Respondent No.2, it was remained absent and hence, he was placed as exparte. Later, the Respondent No.2 has appeared through its Learned Counsel and as per the Order dated 20.01.2015 passed on I.A.No.II, the exparte order is set-aside and the Respondent No.2 is taken on file. The Respondent No.2 has filed the written statement.
12. The Respondent No.1 in E.C.A.No.49/2014 inter-alia denying the entire case of the Petitioners, has further contended as follows;
a) The petition is not maintainable.
SCH-7 16 E.C.A.No.47/2014
C/w E.C.A.No.49/2014
b) He is admitting that, the deceased Raju and Nagappa,
who were working under him.
c) The amount claimed by the Petitioners is an
exorbitant.
d) The Bagepalli Police have registered a case as against
the driver of him in Crime No.74/2012 and thereafter, charge sheet has been filed in C.C.No.82/2013 and the driver of him is contesting the said matter before the JMFC at Bagepalli.
e) If this Hon'ble Court come to the conclusion that, there is a rash and negligent driving by the driver of him, then, if this Hon'ble Court passes any award against the Respondents, naturally, he has taken policy from the Respondent No.2 and the said policy was valid as on the date of accident and the Respondent No.1 has been indemnified by the Respondent No.2 in case of accident.
f) The vehicle bearing Registration No.KA-02-AB-9963, 407 Tempo was having valid permit. The R.C. was in the name of him.
g) The vehicle was driven by one Reddy @ Shivareddy and he was having valid driving licence to drive the vehicle.
h) If this Hon'ble Court is not pleased to dismiss the said petition, he will suffer irreparable loss and great hardship, SCH-7 17 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 whereas, no hardship would be caused to the Petitioners. Hence, prayed to dismiss the petition.
13. The Respondent No.2 in E.C.A.No.49/2014 inter-alia denying the entire case of the Petitioners, has further contended as follows;
a) The petition for grant of compensation on account of the death of one Nagappa, who was died in an alleged accident that occurred on 02.04.2012 involving the TATA 407 Goods Vehicle bearing Registration No.KA-02-AB-9963, is not maintainable either in law or on facts.
b) It admits that, having insured the TATA 407 Goods Vehicle bearing Registration No.KA-02-AB-9963 in terms of the policy of insurance issued, which is in accordance with the provisions of the Motor Vehicles Act and the liability of it, is limited to the terms and conditions of the policy of insurance issued.
c) If the owner of the vehicle, i.e., the Respondent No.1 not contesting the claim petition or he is placed exparte before this Hon'ble Court or he has colluded with the Petitioners, then it be permitted to contest the matter on all the grounds available under Section 170 of the Motor Vehicles Act.
d) The deceased was not an employee of the Respondent No.1 and there is no existed relationship of employee and SCH-7 18 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 employer between the deceased and the Respondent No.1. Hence, the Petitioners are not entitled to maintain the claim petition.
e) At the time of alleged accident, the caused driver Reddy @ Shiva Reddy was not driving the TATA 407 Goods Vehicle bearing Registration No.KA-02-AB-9963. As per complaint given by one Shivakumar, it is mentioned that, Srinivas Reddy was driving the vehicle and caused accident, but, thereafter, the Petitioners have implicated the driver Reddy @ Shiva Reddy by colluding with the Respondent No.1 and jurisdictional Police to get unlawful gain as against it. Hence, it is not liable to pay any compensation.
f) Without prejudice, on the date of alleged accident, the driver of the Tata 407 Goods vehicle bearing Registration No.KA- 02-AB-9963 was not holding valid and effective driving licence to drive the same, which is in contravention of the policy conditions and also the Motor Vehicles Act. In this regard, the jurisdictional Police have filed a Charge Sheet under Section 181 of M.V. Act. The owner of the vehicle, i.e., the Respondent No.1, has allowed the driver to drive the same, knowingly fully well that, he had no valid and effective driving licence, the same is violation of policy terms and conditions and also Motor Vehicles Act. Hence it is not liable to pay any compensation.
g) On the date of alleged accident, the Tata 407 Goods Vehicle bearing Registration No.KA-02-AB-9963 was not having valid permit and fitness certificate to ply in the public place, but, SCH-7 19 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 the Respondent No.1 knowing fully allowed to ply the said vehicle in public place without valid permit and fitness certificate, hence, the same is violation of policy terms and conditions and also Motor Vehicles Act. Therefore, it is not liable to pay any compensation.
h) The Tata 407 bearing Registration No.KA-02-AB-9963 was registered as Goods vehicle and it has issued policy as same, but, at the time of alleged accident, it was used for carrying passengers and the deceased was traveling in the said vehicle as a paid passenger, he was not an employee of the Respondent No.1 and there is no existed relationship of employee and employer between the deceased and the Respondent No.1. Hence, the Petitioners are not entitled to maintain the claim petition.
i) The seating capacity of the Tata 407 bearing Registration No.KA-02-AB-9963 is only two, but, at the time of accident, more than twenty passengers were traveling in the said vehicle as against to its seating capacity, the same is violation of policy terms and conditions and also Motor Vehicles Act. Hence, it is not liable to pay any compensation.
j) There is no nexus between the death of the deceased and the alleged accident. The deceased was not died due to injuries sustained in the alleged accident dated 02.04.2012. Hence, petition is not maintainable.
SCH-7 20 E.C.A.No.47/2014
C/w E.C.A.No.49/2014
k) The compensation claimed for Rupees 15,00,000/- is
highly excessive, exorbitant and disproportionate to the earnings and the nature of job of the deceased and the Petitioners are trying to make a windfall out of an unfortunate accident and there was no nexus between the death of the deceased and alleged accident. Hence, prayed to dismiss the petition with exemplary costs.
14. Based on the above said pleadings, my Learned Predecessor-in-Office has framed the following;
ISSUES E.C.A.NO.47/2014
1. Whether the Petitioners prove that, they are the dependents and legal representatives of deceased SRI.
RAJU?
2. Whether the Petitioners prove that, the deceased Sri. Raju was working as a Coolie in a vehicle bearing Registration No.KA-02-AB-9963 under the Respondent No.1 and during the course of employment, on 02.04.2012, when he was going towards Bagepalli near Sunkalamma Temple and Gangothri Petrol Bunk at N.H.7, at that time, the driver of the aforesaid vehicle in order to overtake other vehicle lost control over the said vehicle and due to that, the vehicle got turtle and due to the accident, he succumbed to the injuries?
SCH-7 21 E.C.A.No.47/2014
C/w E.C.A.No.49/2014
3. Whether the Petitioners are entitled for compensation? If so, how much and from whom?
4. What Order?
E.C.A.NO.49/2014
1. Whether the Petitioners prove that, they are the dependents and legal representatives of deceased SRI.
NAGAPPA?
2. Whether the Petitioners prove that, the deceased Sri. Nagappa was working as a Coolie in a vehicle bearing Registration No.KA-02-AB-
9963 under the Respondent No.1 and during the course of employment, on 02.04.2012, when he was going towards Bagepalli near Sunkalamma Temple and Gangothri Petrol Bunk at N.H.7, at that time, the driver of the aforesaid vehicle in order to overtake other vehicle lost control over the said vehicle and due to that, the vehicle got turtle and due to the accident, he succumbed to the injuries?
3. Whether the Petitioners are entitled for compensation? If so, how much and from whom?
4. What Order?
15. In order to prove their case, the Petitioners in E.C.A.No.47/2014 have examined the Petitioner No.1 as P.W.1 by SCH-7 22 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 filing an affidavit as her examination-in-chief and have placed reliance upon Ex.P.1 to Ex.P.14 and the Petitioners in E.C.A.No.49/2014 have examined the Petitioner No.1 as P.W.2 by filing an affidavits as his examination-in-chief and have placed reliance upon Ex.P.15 to Ex.P.18(a) and both the Petitioners have also examined one eye witness as P.W.3 by filing an affidavit as his examination-in-chief. On the other hand, the Respondent No.1 himself has been examined as R.W.1 by filing an affidavit as his examination-in-chief and has placed reliance upon Ex.R.1. On the other hand, the Respondent No.2 has examined the ARTO, West Rajajinagar, Bengaluru as R.W.2 and its Legal Manager as R.W.3 and has placed reliance upon Ex.R.2 and Ex.R.3.
16. Heard the arguments.
17. In support of the submission, the Learned Counsel appearing for the Petitioners in both the cases, Sri. M.B. Ravikumar, has placed reliance upon the decision reported in, Civil Appeal Nos.9927-28 of 2014 with Civil Appeal Nos.9929-30 of 2014 (Kulwant Singh and Others V/s. Oriental Insurance Company Ltd.,), wherein, it is observed that,
9. We find the judgments relied upon cover the issue in favour of the appellants. In Annappa Irappa Nesaria (supra), this Court referred to the provisions of Section 2(21) and (23) of the Motor Vehicles Act, 1988, which are definitions of 'light motor vehicle' and 'medium goods vehicle' respectively and SCH-7 23 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 the rules prescribing the forms for the licence, i.e., Rule 14 and Form No.4 it was concluded:
"20. From what has been noticed hereinbefore, it is evident that, "transport vehicle" has now been substituted for "medium goods vehicle" and "heavy goods vehicle". The Light motor vehicle continued, at the relevant point of time to cover both "light passenger carriage vehicle' and "light goods carriage vehicle".
A driver who had a valid licence to drive a light motor vehicle, therefore, was authorized to drive a light goods vehicle as well."
10. In S. Iyappan (supra), the question was whether the driver who had a licence to drive 'light motor vehicle' could drive 'light motor vehicle' used as a commercial vehicle, without obtaining endorsement to drive a commercial vehicle. It was held that, in such a case, the Insurance Company could not disown its liability. It was observed:
"18. In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute that, the motor vehicle in question, by which accident took place, was Mahindra Maxi cab. Merely because the drive did not get any endorsement in the driving licence to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed grave error of law in holding that, the insurer is not liable to pay compensation because the driver was not holding the licence to drive SCH-7 24 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 the commercial vehicle. The impugned judgment (Civil Misc. Appeal No.1016 of 2002, order dated 31.10.2008 (Mad) is, therefore, liable to be set aside".
No contrary view has been brought to our notice.
11. Accordingly, we are of the view that, there was no breach of any condition of Insurance Policy, in the present case, entitling the Insurance Company to recover rights.
12. Accordingly, we allow these appeals, set aside the impugned order of the high Court and restore that, of the Tribunal. There will be no order as to costs.
18. In support of the submission, the Learned Counsel appearing for the Respondent No.2, Sri. Gururaj Salur has placed reliance upon the decisions reported in,
i) 2005 ACJ 721 (National Insurance Company Ltd., V/s. Bommithi Subbhayamma and others), wherein, it is observed that, Motor Vehicles Act 1988, Section 147(1) - Motor insurance - Goods vehicle
- Passenger risk - Gratuitous passenger - Liability of Insurance Company - Death of gratuitous passenger n truck when it met with accident - Tribunal allowed compensation but exempted the Insurance Company from liability - High Court in appeal affixed liability on the SCH-7 25 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 Insurance Company - whether the Insurance Company is liable - Held: no;
claimants entitled to recover awarded compensation from owner of vehicle.(2004 ACJ 428 (SC) relied)
ii) 2006 ACJ 563 (National Insurance Company Ltd., V/s. Govindamma and others), wherein, it is observed that, Motor vehicles Act, 1988, Section 147 (1) - Motor insurance - Goods vehicle -
passengers risk - liability of Insurance Company - death of tow passengers in goods vehicle when the vehicle met with accident - claim before commissioner stating that, deceased were loaders employed by owner of vehicle - Opposite parties were exparte and Commissioner allowed the claims mulcting liability on the Insurance Company - F.I.R. produced by claimants indicate that, 40 persons were traveling in the goods vehicle at the time of accident - Whether Insurance Company is liable for the death of passengers in goods vehicle - Held: no.
(2005 ACJ 721 (SC) followed.
iii) 2007 AIR SCW 1505 (New India Assurance Co. Ltd., V/s. Vedwati and Others), wherein, it is observed that, Motor Vehicles Act (59 of 1988), Ss.
147, 2 (14) - Goods Vehicle - Passenger traveling in - Compensation - Liability of insurer - Definition of Goods carriage;
under new Act does not include passengers unlike old Act - Insurer not liable to pay compensation in case of injury or death of gratuitous passenger.
SCH-7 26 E.C.A.No.47/2014
C/w E.C.A.No.49/2014
iv) 2003 ACJ 468 (Oriental Insurance Company Ltd., V/s. Devireddy Konda Reddy and Others), wherein, it is observed that, Motor vehicles Act, 1988, Section 147 (1) (prior to its amendment in 1994) Motor Insurance - Goods vehicle - Passenger risk - Gratuitous passenger liability of Insurance Company - Whether Insurance Company is liable for passengers traveling gratuitously or unauthorisedly in a goods vehicle - Held: no; Act does not enjoin any statutory liability on the owner to get his vehicle insured for any passenger traveling in a goods carriage. (2003 ACJ 1 (SC) relied.)
v) ILR 2010 KAR 196 (Smt. Gulnaz Jaleel V/s. Syed Jaleel and Another), wherein, it is observed that, Motor vehicles Act, 1988 - Section 166 - claim petition - deceased was traveling in the lorry as a gratuitous passenger - First Respondent was the drive of lorry appellant is the mother of the deceased filed claim petition.
Judgment and award in part - appealed against for enhancement - denial of jural relationship of employer and the employee
- HELD, A gratuitous passenger in a good carriage would not be covered by a contract of insurance entered into between the insurer and the owner of the vehicle, in terms of Section 147 of the Act
- Any person, envisaged under Section 147 of the Act, shall not include any gratuitous passenger. A driver of the goods carriage could not have allowed SCH-7 27 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 anybody else, much less his son to travel in the goods carriage, in as much as, no other person, whether, as a passenger or as a owner of the vehicle, is supposed to travel in the vehicle. Violation of condition of the contract of insurance enables the insurer to avoid the liability - ON FACTS, HELD, The deceased has traveled in the vehicle on the date of the accident. The employment of the deceased as cleaner has not been established. Hence, he appears to have traveled in the vehicle in the capacity as a son of the appellant or as a member of the family of the appellant. The claim is by the mother against her husband/the driver, herself/owner and the Insurance Company. The claim has been allowed in part by the Tribunal only against the driver. The indemnification of the claim by the Insurance Company can only be when the owner has been held liable. In the facts and circumstances of the case, the owner being the claimant herself, there cannot be any indemnification.
Hence, the Tribunal is justified in not fastening liability on the Insurance Company.
vi) 2010 Kant M.A.C. 20 (SC) (National Insurance Company Ltd., V/s. Bhukya Tara and Others), wherein, it is observed that, Motor vehicles Act, 1988, Section 147
- Liability of insurer - claim of compensation - High Court affirmed award of Tribunal - Admittedly deceased was traveling in a Goods vehicle - Insurer SCH-7 28 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 cannot be held liable to pay compensation
- Impugned orders set aside.
vii) Miscellaneous First Appeal No.40 of 2010 (M.V) (The Branch Manager, National Insurance Company Ltd., V/s. Smt. Bellamma and Others), wherein, it is observed that, Learned counsel for the appellant Insurance Company referred to Rule 100 of Karnataka Motor Vehicle Rules, 1989 and submitted that, the provisions to the Rules permits the persons to travel only in the cabin and not in the carriage. To substantiate his submission, learned counsel referred to the judgment of the Supreme Court in the case of National Insurance Company Ltd., V/s Cholleti Bharatamma and Ors. Reported in AIR 2008 Supreme Court 484 wherein at paragraph 17, it has been held that:
"It is now well settled that, the owner of the goods means only the person who travels in the cabin of the vehicle"
Here in this case, undisputedly and on the basis of the evidence and material, the deceased was traveling on the goods in the carriage, which is contrary to the provisions and further it contravenes condition in the policy.
viii) Miscellaneous First Appeal No.3171 of 2007 (The Oriental Insurance Company Ltd., V/s. Rudrappa and Another), wherein, it is observed that, SCH-7 29 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 On a careful reading of Section 147 of the Act, it is clear that, the owner or the representative of the owner of the goods is entitled to travel in a goods transport vehicle. But, it must necessarily prove that, he was traveling along with goods.
In this case, admittedly, no goods were found in the goods Auto Rickshaw. There is no evidence to show that, the said Auto Rickshaw was hired by the claimant or he had ragi at some place, which is to be transported. Except mentioning in the FIR, which is based on the information appears to have been given by the claimant. There is nothing on record to prove that, the claimant had any goods to be transported or the vehicle was hired to bring goods. In the absence of any material, fact that, he was traveling in a goods Auto Rickshaw is evident from the evidence itself and as such, the Tribunal was not justified in holding that, the insurer is liable to indemnify the compensation. Just because, he was traveling in a goods Auto Rickshaw. He does not become the owner of the goods, which is not even proved. In my opinion, to this extent, the judgment and award of the Tribunal requires to be set aside.
Accordingly, the appeal is partly allowed. The finding of the Tribunal fixing liability on the insurer is set aside. The owner of the vehicle is held liable to pay compensation. The amount in deposit be refunded to the appellant - Insurance Company.
ix) 2011 AIR KAR 927 (New India Assurance Co. Ltd., Bangalore V/s. Afroz and Another), wherein, it is observed that, SCH-7 30 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 (A) Motor Vehicles Act (59 of 1988),S. 149 - Liability of insurer - Auto Rickshaw dashed against tanker - driver of tanker did not possess valid and effective driving licence on date of accident - also driver has been prosecuted in criminal proceedings for not possessing valid license - Insurer cannot be fastened with liability.
x) Miscellaneous First Appeal No.11230/2008 (MV) (M/s Oriental Insurance Company Ltd., V/s. Smt. Seethamma and Others), wherein, it is observed that,
5. Heard the learned counsel for the appellant. Perusal the judgment impugned so also the pleadings, oral and documentary evidence available on record. On going through the same, it is seen that, the first Respondent before the Tribunal Sr. K.Mahesh, the driver of the offending Auto Rickshaw at the relevant point time was charge sheeted for the offence punishable under Section 279, 338 of IPC and also Sections 3 and 181 of the Motor Vehicles Act, i.e., for driving the vehicle without valid driving licence. The said proceedings in C.C.No.408/09 on the file of principal, CJM Kolar has ended in the claimant pleading guilty for all the three offences and paying fine in a sum of Rupees 1,000/-.
6. In what view of the matter, the defense taken by the Insurance Company to the effect that, the driver of the offending vehicle was not having valid driving licence which has resulted in breach of policy condition has been SCH-7 31 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 proved beyond responsible doubt.
Therefore, the finding of the Tribunal so far as it pertains to saddling of the liability on the Insurance Company to pay the compensation requires to be set aside.
7. Accordingly, the appeal filed by the Insurance Company is allowed. The judgment and award dated 26.06.2008 passed in M.V.C.No.124/2005 is modified by exhilarating the liability to pay the compensation on the Insurance Company. However, this does not deprive the right of the claimant to seek compensation from the second Respondent that is the owner of the Auto Rickshaw.
8. In view of the appeal filed by the appellant Insurance Company being allowed, the amount in deposit is ordered to be refunded to the appellant.
xi) Miscellaneous First Appeal No.4716/2011(MV) (United India Insurance Company Ltd., V/s. Smt. Umamaheshwari @ Umadevi Others), wherein, it is observed that,
2. Learned Counsel for the appellant, points to the Written Statement filed before the MACT, advancing a plea that, the driver of the motor vehicle did not possess a valid driving licence as also the contents of Ex.P.2 the Charge Sheet, wherein, the drive of the offending motor vehicle is charged under Clause (1) of Section 3 read with Section 181 of the Motor Vehicles Act, 1988, as he did not SCH-7 32 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 possess a valid driving licence as on the date of the accident. In that view of the matter, it cannot be said that there was a fundamental breach of the conditions of the indemnity extended by the appellant/insurer in favour of the insured against the claims put forth by the third parties.
This appeal is allowed. The judgment and award impugned is modified setting aside the finding fastening liability on the insurer/appellant, to pay compensation and in all other respects remains unaltered.
The amount in deposit is directed to be transmitted to the tribunal forthwith.
xii) Miscellaneous First Appeal No.398 of 2012 (Nandisha V/s. Smt. Rukmini and Another), wherein, it is observed that,
5. Learned Counsel for the Insurance Company submitted that, though the owner appeared before the Tribunal, pursuant to the notice, has not produced any document and no evidence has been adduced on his behalf. There is a specific observation made by the Tribunal that, the drive was no holding valid driving licence as on the date of the accident. The Police have registered a case by filing Charge Sheet against the driver under Section 3 of the Motor Vehicles Act. In the circumstances, the owner of the offending vehicle is rightly made liable to pay the compensation. In support of his submission, he has relied on the SCH-7 33 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 judgment of this Court in case MFA No.9169/2005 c/w 11116/2005 dated 30.11.2010. Paragraph 8 of the Judgment is extracted hereunder:
"After critical evaluation of the material on record and after perusal of the Written Statement and also the charge sheet Ex.P.2, it is crystal clear that, the driver did not possess the valid driving licence as on the date of accident and that, he has been prosecuted in the criminal proceedings. Therefore, the Tribunal has committed a grave error in fastening liability on the insurer. Therefore, we are of the considered view, at any stretch of imagination the said finding of fact cannot be sustained and is liable to be set aside. Accordingly, we set aside the same holding that, the insurer is not liable to satisfy the award amount and fasten the liability on the owner.
6. In the light of the observations made by this Court in the judgment referred supra and in view of the fact that, the owner and driver have not produced valid driving licence for compliance of Section 3 of the M.V. Act, I feel that, the Tribunal has rightly fastened liability on the owner. Hence, I do not find any good reason to interfere in this judgment. There is also no scope for reduction of the award amount granted by the claims Tribunal. Accordingly, appeal stands dismissed.
SCH-7 34 E.C.A.No.47/2014
C/w E.C.A.No.49/2014
xiii) 2010 Kant M.A.C.256 (Kant)) (Veerappa and
Another V/s. Siddappa and Another), wherein, it is observed that, (A) Motor Vehicles Act, 1988 - Appeal against the dismissal of claim petition -
Collusion between owner and claimant -
Owner of the vehicle admitted the accident - further the owner of the vehicle admitted that, he has no objection for award of compensation - Held - the admission of the owner of vehicle has no value in the eye knowledge and which he has not seen - the said admission made with the sole object of getting compensation to the claimants as it is the Insurance Company which will pay and not the owner - though admission is the best piece of evidence but, the same cannot be accepted as gospel truth -0 claimants were required to prove their case independently which they failed -
fraud and justice cannot dwell together.
(B) Motor Vehicles Act, 1988 -
Liability of insurer - when fraud has been committed with the insurer - Held -
Insure is not liable to indemnify the owner of the vehicle who has played fraud and not liable to pay any compensation to the claimants who are also party to the fraud.
19. My answer to the above said Issues are as follows;
SCH-7 35 E.C.A.No.47/2014
C/w E.C.A.No.49/2014
E.C.A.No.47/2014
Issue No.1 : In the Affirmative,
Issue No.2 : In the Affirmative,
Issue No.3 : Partly in the Affirmative,
The Petitioners are
entitled for compensation
of Rupees 7,73,560/- with
interest at the rate of 12%
p.a. from 02.05.2012 till
the date of payment, from
the Respondent No.1.
Issue No.4 : As per the final Order,
E.C.A.No.49/2014
Issue No.1 : Partly in the Affirmative,
Issue No.2 : In the Affirmative,
Issue No.3 : Partly in the Affirmative,
The Petitioners are
entitled for compensation
of Rupees 9,10,520/- with
interest at the rate of 12%
p.a. from 02.05.2012 till
the date of payment, from
the Respondent No.1.
Issue No.4 : As per the final Order,
for the following;
SCH-7 36 E.C.A.No.47/2014
C/w E.C.A.No.49/2014
REASONS
20. ISSUE NO.1 in E.C.A.No.47/2014 :- The P.W.1, who is the Petitioner No.1 has stated in her examination-in-chief that, the deceased Raju is her husband, who died due to rash and negligent driving of the Tempo 407 bearing Registration No.KA-02- AB-9963 belonging to the Respondent No.1 on 02.04.2012 and the Petitioners No.2 and 3 are their minor children. No doubt, the P.W.1 in her cross-examination has stated that, she has no Ration Card and Election Identity Card and she has no documents to show that, she is a wife of Late Raju. But, she has clearly stated in her cross-examination that, her marriage was taken place with the deceased about 15 years back and there is different of 5 years in between the age of her and her deceased husband and at the time of marriage, she was 20 years old. Furthermore, the Petitioners have produced Ex.P.1 FIR, Ex.P.2 Statement, Ex.P.3 Complaint, Ex.P.4 Charge Sheet, Ex.P.5 Requisitions, Ex.P.6 Inquest along with Statements, Ex.P.8 P.M. Report relating to deceased Raju and Ex.P.10 Residential Certificate dated 30.06.2012, which clearly disclosed that, the Petitioner No.1 is a wife and the Petitioners No.2 and 3 are the minor daughters of deceased Raju, who succumbed to the accidental injuries, which was taken place on 02.04.2012, when he was working as a Coolie in the offending Tempo 407 bearing Registration No.KA-02-AB-9963, which caused due to the negligence on the part of the driver of the said offending Tempo 407 near Sunkalamma Temple and Gangothri Petrol Bunk at N.H.7. The said Police and medical documents clearly disclosed that, the Petitioner No.1 is a wife and the Petitioners No.2 and 3 SCH-7 37 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 are the minor daughters of deceased Raju, who succumbed to the accidental injuries on 02.04.2012. Since, the Petitioner No.1 is a wife and the Petitioners No.2 and 3 are the minor daughters of the said deceased Raju, they are the legal representatives and dependents of the said deceased Raju. Accordingly, I answered Issue No.1 in the Affirmative.
21. ISSUE NO.1 in E.C.A.No.49/2014 :- The P.W.2, who is the Petitioner No.1 has stated in his examination-in-chief that, he and the Petitioner No.2 are the parents and the Petitioner No.3 is a sister of the deceased Nagappa, who succumbed to the accidental injuries on 02.04.2012 in the road traffic accident, when he was traveling as a Coolie in the offending Tempo 407 bearing Registration No.KA-02-AB-9963 due to negligence on the part of the driver of the said Tempo 407. He has further stated that, the Petitioner No.3 is a minor. No doubt, the P.W.2 in his cross-examination has stated that, he has Ration Card. But, the Petitioners have not produced the said Ration Card to show their relationship with the deceased Nagappa. Further, the P.W.2 has clearly stated in his cross-examination that, he has not produced any documents to show that, the deceased is his son. He has further stated that, his daughter is unmarried. But, the said non- production of the material documents no way affect to the Petitioners to consider their relationship with the deceased Nagappa, as, the Petitioners have produced Ex.P.15 P.M. Report relating to the deceased Nagappa and Ex.P.16 Residential Certificate dated 30.06.2012, which clearly disclosed that, the Petitioner No.1 is a father, the Petitioner No.2 is a mother and the SCH-7 38 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 Petitioner No.3 is a minor sister of the deceased Nagappa. The Petitioner No.1 being a father, the Petitioner No.2 is a mother and the Petitioner No.3 is a minor sister of the deceased, are the legal representatives of the said deceased Nagappa. But, all the Petitioners are cannot be considered as the dependents of the said deceased Nagappa, as, it is well settled principle of law that, the father cannot be considered as a dependent upon his son. Therefore, the Petitioner No.1 being the father of the deceased cannot be considered as a dependent upon the said deceased Nagappa. Furthermore, as clearly stated by the P.W.2, the Petitioner No.3 is a minor sister of the said deceased and she is unmarried and the Petitioner No.1 being a father, has to look after the Petitioner No.3 and it is his duty to maintain the Petitioner No.3 and as such, the Petitioner No.3 also cannot be considered as a dependent upon the said deceased Nagappa. The Petitioner No.2 being a mother can only be considered as a dependent upon the said deceased Nagappa. Accordingly, I answered Issue No.1 partly in the Affirmative.
22. ISSUES NO.2 IN BOTH THE CASES :- The P.W.1, who is the Petitioner No.1 in E.C.A.No.47/2014 has stated in her examination-in-chief that, the deceased Raju was working under the Respondent No.1, who is the R.C. Owner of Tempo 407 bearing Registration No.KA-02-AB-9963 and on 02.04.2012, the complainant and others, who are, namely, Nagappa and others were went to work at Bagepalli as Coolie in the said Tempo 407 bearing Registration No.KA-02-AB-9963 and when they were coming at Bagepalli, near Sunkalamma Temple and Gangothri SCH-7 39 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 Petrol Bunk at NH-7, at that time, the driver of the said vehicle in order to overtake other vehicles, lost control over the vehicle and due to that, the vehicle got turtle and due to the accident, the complainant sustained injuries and the persons, who were in the vehicle also sustained grievous injuries and thereafter, they were shifted to Bagepalli Government Hospital and thereafter, they were shifted to Chikkaballapura Government Hospital. She has further stated that, due to the negligence of the driver of Respondent No.1, the deceased Raju and Nagappa succumbed to the injuries, for which, the Respondent No.1 is solely responsible. She has further stated that, during the course of employment under the Respondent No.1, her deceased husband Raju died due to rash and negligent driving of the driver of the Respondent No.1 on 02.04.2012. She has further stated that, the Bagepalli Police have registered a case as against the driver of the Respondent No.1 in Crime No.74/2012 for the offences punishable under Section 279, 337, 338 and 304(A) of IPC and thereafter, on the investigation, the said Police filed a charge sheet as against the driver of the Respondent No.1 and the said matter is pending before the Principal Civil Judge (Junior Dn.) and JMFC Court, Bagepalli, Chikkaballapura District.
23. The P.W.1 in her cross-examination has clearly stated that, they came to Bengaluru from Gulbarga about 7 - 8 years back for Coolie work, i.e., concrete work and at the time of accident, she was also present along with her child and husband in the offending vehicle and they were working under the Respondent No.1 and at the time of accident, they were taking by SCH-7 40 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 the Respondent No.1 from one place to another place. She has further stated that, the Police have recorded her statement after the accident and at the time of accident, they were proceeding for molding work relating to the new construction building of one Ramu.
24. The P.W.2, who is the Petitioner No.1 in E.C.A.No.49/2014, has also stated the same evidence of P.W.1, which has been stated by her in the examination-in-chief, in his examination-in-chief. He has further stated in his cross- examination that, earlier, his deceased son was doing coolie work at their native place and thereafter, his son came to Bangalore for coolie work and he was doing coolie work wherever called him and one Mestri Thayappa had paid the wages to his deceased son.
25. No doubt, the P.W.2 in his cross-examination has stated that, he don't know the name of the Hospital, when he was received the dead body of his son and he has not seen the accident and he don't know the owner of the offending Lorry and he don't know that, who was driving the said Lorry at the time of accident. Further, the Petitioners in both the cases have not produced any authenticated documents to show that, both the deceased Raju and Nagappa were working as a Coolies under the Respondent No.1 and when they were under the employment of the Respondent No.1, the alleged accident was taken place. The non-production of the said material documents is clearly admitted by both the P.W.1 and P.W.2 in their cross-examination.
SCH-7 41 E.C.A.No.47/2014
C/w E.C.A.No.49/2014
26. But, only based on the said oral evidence, which is elicited from the mouth of P.W.2 as well as non-production of the authenticated documents issued by the Respondent No.1 by the Petitioners in the both the cases, it cannot be thrown away the above said oral version of P.W.1 and P.W.2, which has been stated by them in their examination-in-chief, as, the P.W.1, who is the Petitioner No.1 is also the one of the eye witness of the alleged accident and to corroborate the oral version of P.W.1 and P.W.2, the Petitioners in E.C.A.No.472014 have produced Ex.P.1 FIR, Ex.P.2 Statement, Ex.P.3 Complaint, Ex.P.4 Charge Sheet, Ex.P.5 Requisitions, Ex.P.6 Inquest along with Statements, Ex.P.7 Spot Panchanama, Ex.P.8 P.M. Report relating to deceased Raju and Ex.P.9 MVI Report and the Petitioners in E.C.A.No.49/2014 have produced Ex.P.15 Postmortem Report relating to deceased Nagappa, which clearly disclosed that, when the deceased Raju and Nagappa were traveling in the offending Tempo 407 bearing Registration No.KA-02-AB-9963 as Coolies under the Respondent No.1, the road traffic accident was taken place on 02.04.2012 at 7-30 a.m., due to high speed, rash and negligent manner of driving of the said offending Tempo 407 bearing Registration No.KA-02-AB-9963 by its driver itself and at the time of accident, the said offending Tempo 407 was belonging to the Respondent No.1 and the said deceased Raju and Nagappa succumbed to the injuries during the course of treatment, which is clear from the following discussion. Furthermore, both the Petitioners have examined the eye witness of the said alleged accident as P.W.3, who has stated in his examination-in-chief that, on 02.04.2012 at about 7.30 a.m., the complainant, himself and others, who are, SCH-7 42 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 namely, Late Raju, Late Nagappa and other were went to work at Bagepalli as Coolie in a vehicle bearing Registration No.KA-02- AB-9963, Tempo -407 and when they were going at Bagepalli, near Sunkalamma Temple and Gangothri Petrol Bunk at N.H.7, at that time, the driver of the said vehicle in order to overtake other vehicle lost control over the vehicle and due to that, the vehicle got turtle and due to the accident, the complainant himself sustained injuries and the persons, who were in the vehicle also sustained grievous injuries and thereafter, they were shifted to Bagepalli Government Hospital and further, they were shifted to Chikkaballapura Government Hospital and due to the negligence of the driver of the Respondent No.1, the deceased Raju and Nagappa succumbed to the injuries, for which, the Respondent No.1 solely responsible. He has further stated that, in the said accident, he has also sustained simple injuries on his back and he also took first-aid treatment at Government Hospital, Bagepalli. He has further stated that, he has been cited as Witness No.8 (CW8) in C.C.No.82/13, which is arising out of Crime No.74/2012 of Bagepalli Police Station for the offences punishable under Section 279, 337 and 304 (A) of IPC and 181 of IMV Act. He has further clearly stated in his cross-examination that, his native place is Gulbarga and himself, deceased Raju and other were came to Bengaluru for Coolie work and they were residing together at Bengaluru, where they were doing Coolie work and he was sitting in the front seat of the offending vehicle and the deceased were on back seat and at the time of accident, they were proceeding from the building work of Ramu and they were 21 persons excluding driver in the offending vehicle at the time of SCH-7 43 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 accident. He has further stated that, the Police have enquired him about the accident. Further, the Respondent No.1 himself has been examined as R.W.1, who has stated in his examination-in- chief that, he is the registered owner of the vehicle bearing Registration No.KA-02-AB-9963 and he is using the vehicle for his business purpose. He has further stated that, on 02.04.2012 at about 7.30 a.m., he had sent the complainant and others, who are, namely, Late Raju, Late Nagappa and others and they went to work at Bagepalli as Coolies in a vehicle bearing Registration No.KA-02-AB-9963, Tempo 407 and when they were going at Bagepalli, near Sunkalamma Temple and Gangothri Petrol Bunk at N.H-7, at that time, the driver of the said vehicle in order to overtake vehicle, lost control over the vehicle and due to that, the vehicle got turtle and due to the accident, the complainant and others, who were in the vehicle also sustained grievous injuries and thereafter, they were shifted to Bagepalli Government Hospital and further, they were shifted to Chikkaballapura Government Hospital and the deceased Raju and Nagappa succumbed to the injuries. He has further stated that, one Nagappa, who was aged about 18 years was working under him as a Coolie and he was drawing salary of Rupees 10,000/- p.m., likewise, Mr. Raju, who was aged about 24 years was working under him as a Coolie and he was drawing salary of Rupees 10,000/- p.m., and he was paying the salary to them by way of cash. He has further stated that, at the time of accident, one Reddy @ Shiva Reddy was the driver of the Tempo bearing Registration No.KA-02-AB-9963 and he was having a valid driving licence to drive the said vehicle. He has further stated that, his elder son, namely, Thayappa, who is SCH-7 44 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 residing with him and he is looking after his business as on now as he is aged person. He has further stated in his cross- examination that, he is doing concrete work since 10 years and total 5 years, the deceased were working under him and he used to pay wages of Rupees 10,000/- each to the deceased Raju and Nagappa by way of cash. He has further stated that, one Srinivass Reddy was a driver of his Lorry at the time of accident, which was proceeding from Bangalore to Bagepalli and at the time of accident, the deceased were going to Bagepalli for doing work of one Ramu. He has further stated that, he has no documents to show that, the deceased Raju and Nagappa were working under him and he was paying salary to them by way of cash. No doubt, the R.W.1, who is the Respondent No.1 in his cross-examination has stated that, he is earning Rupees 10,000/- p.m., which clarify the fact that, when the Respondent No.1 is earning Rupees 10,000/- p.m., he had no capacity to pay the wages of Rupees 10,000/- p.m., each to the said deceased Raju and Nagappa, who were working as coolies under him. But, based on the same, it cannot be thrown away the above said oral version of R.W.1 to consider the employment of the deceased Raju and Nagappa under him, as, it is clear from the contents of the above said Police and medical documents that, the Respondent No.1 was a registered owner of the offending Tempo 407 bearing Registration No.KA-02-AB-9963 and the deceased Raju and Nagappa as Coolies were traveling in the said offending 407 Tempo belonging to the Respondent No.1 and the same has also been asserted by the R.W.1 in his examination-in-chief. Further, the R.W.3, who is the Legal Manager of the Respondent No.2, has stated in his SCH-7 45 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 examination-in-chief that, the deceased Raju and Nagappa are not working with the Respondent No.1 as his employees and there is no employee and employer relationship with the deceased and the Respondent No.1. To consider the oral version of R.W.3, the Respondent No.2 has not produced any material documents. The R.W.3 has further stated in his cross-examination that, on the basis of the Police documents and evidence adduced by the Petitioners, he has stated that, the persons, who were traveling in the offending vehicle are gratuitous, i.e., unauthorized passengers. He has further stated that, they have not challenged the very filing of the Charge Sheet as against the driver Reddy @ Shivareddy. From this, it is made crystal clear that, except the oral version of R.W.3, the Respondent No.2 is not having any material evidence to show that, the deceased Raju and Nagappa were not working as a Coolies under the Respondent No.1 and the relationship in between the said deceased and the Respondent No.1 was not that off employees and employer at the time of accident. On the other hand, the above said oral version of P.W.1 to P.W.3 as well as contents of the Police and medical documents clarify the fact that, at the time of accident, the deceased Raju and Nagappa were traveling as Coolies in the offending Tempo 407 bearing Registration No.KA-02-AB-9963 under the Respondent No.1 and the said 407 Tempo is also belonging to the Respondent No.1 at the time of accident and during the course of employment, the said accident was taken place on 02.04.2012 at 7.30 a.m., and due to the accidental injuries itself, the said deceased Raju and Nagappa succumbed during the course of treatment in the Hospital. Furthermore, though the P.W.1 to P.W.3 have been SCH-7 46 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 cross-examined by the Respondent No.2, nothing has been elicited from their mouth to consider its specific defence. Further, if the deceased Raju and Nagappa were not working as Coolies under the Respondent No.1 in his offending Temp 407 bearing Registration No.KA-02-AB-9963, the Respondent No.1 could have contested the present petitioners by filing the Written Statement denying the entire case made out by both the Petitioners in the present petitions. The very examination by the Respondent No.1 himself in the present case by admitting the relationship of the deceased in between him and the said deceased that off employer and employees, clearly proved the entire case made out by the Petitioners in respect of the employment under the Respondent No.1 as Coolies and traveling in the offending Temp 407 bearing Registration No.KA-02-AB-9963 during the course of employment. Furthermore, the name of the deceased Raju and Nagappa are clearly shown as labourers in the list annexed to Ex.P.1 FIR.
27. The contents of Ex.P.1 FIR, Ex.P.2 Statement, Ex.P.3 Complaint, Ex.P.4 Charge Sheet and Ex.P.5 Requisition further clearly disclosed that, one of the injured and eye witness had lodged Ex.P.2 Complaint and Ex.P.3 Complaint before the Bagepalli Police as against the driver of the offending Temp 407 bearing Registration No.KA-02-AB-9963 by alleging that, on 02.04.2012, when he and the said deceased Raju and Nagappa and other Coolie workers were traveling as Coolies n the offending Tempo 407 bearing Registration No.KA-02-AB-9963 at 7.30 a.m., the road traffic acid accident was taken place by the driver of the said offending 407 Tempo due to his very high speed, rash and SCH-7 47 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 negligent manner of driving of the said 407 Tempo and due to which, the driver had lost control over the offending vehicle and got turtle on the right side of the road and he sustained grievous injuries on his nose, left leg and left hand and others had also sustained grievous injuries and with the help of the public, they were shifted them to Bagapalli Government Hospital through Ambulance and thereafter, they were shifted to Chikkaballapura Government Hospital and as such, he prayed to take necessary legal action as against the driver of the said offending Tempo 407 and based on Ex.P.2 Statement, the said Police have registered a criminal case as against the driver of the offending Tempo for the offences punishable under Section 279, 337 and 338 of IPC under Crime No.74/2012. It is also clear from the contents of Ex.P.2 Statement that, there is no delay as such in lodging Ex.P.2 Statement by the eye witness of the accident in question.
28. The contents of Ex.P.7 Spot Panchanama and Ex.P.9 MVI Report further clearly disclosed about the very involvement of the said offending Temp 407 bearing Registration No.KA-02-AB- 9963 as well as its driver in the said road traffic accident, wherein, the deceased Raju and Nagappa were traveling as Coolies.
29. The contents of Ex.P.6 Inquest along with Statement and Ex.P.8 Postmortem Report relating to the deceased Raju further clearly disclosed that, due to the accidental injuries itself, the deceased Raju succumbed during the course of treatment on 02.04.2012 itself and the cause of death is due to Coma as a result of head injuries sustained.
SCH-7 48 E.C.A.No.47/2014
C/w E.C.A.No.49/2014
30. The contents of Ex.P.15 Postmortem Report relating to the deceased Nagappa further clearly disclosed that, due to the accidental injuries itself, the deceased Nagappa succumbed to the injuries during the course of treatment and the cause of death is due to shock and hemorrhage as a result of head injuries sustained.
31. From the said medical evidence, it is clear that, due to the accidental injuries itself, the deceased Raju and Nagappa died during the course of treatment.
32. The contents of Ex.P.4 Charge Sheet further clearly disclosed that, since during the course of investigation, it is found that, due to negligence on the part of the driver of the offending Temp 407 bearing Registration No.KA-02-AB-9963, the said road traffic accident was taken place on 02.04.2012 at 7.30 a.m., wherein, the deceased Raju and Nagappa were traveling as Coolies along with other Coolies and they had sustained severe grievous injuries and succumbed to the injuries during the course of treatment at Victoria Hospital and as such, after thorough investigation, the Investigation Officer has filed a Charge Sheet as against the driver of the offending Temp 407 bearing Registration No.KA-02-AB-9963 for the offences punishable under Section 279, 337 and 304 (A) of IPC R/w Section 181 of IMV Act. It is further clear from the contents of Ex.P.4 Charge Sheet that, at the time of accident, the deceased Raju and Nagappa were proceeding as Coolies in the said offending Temp 407 bearing Registration No.KA-02-AB-9963.
SCH-7 49 E.C.A.No.47/2014
C/w E.C.A.No.49/2014
33. From the above said material evidence, both oral and documentary, it is clearly proved that, at the time of accident, the deceased Raju and Nagappa were working as Coolies under the Respondent No.1 and when they were traveling in the offending Tempo 407 bearing Registration No.KA-02-AB-9963, which was belonging to the Respondent No.1, as Coolies, the road traffic accident was taken place on 02.04.2012 at 7.30 a.m., and they succumbed to the grievous injuries during the course of treatment at Victoria Hospital and the relationship of the deceased Raju and Nagappa with the Respondent No.1 was that off employees and employer. Accordingly, I answered Issues No.2 in both the cases in the Affirmative.
34. ISSUES NO.3 IN BOTH THE CASES :-
35. IN E.C.A.No.47/2014 :- The Petitioners have not produced any authenticated documents to consider the actual age of the deceased Raju at the time of accident. The P.W.1 has stated that, her deceased husband was 33 years. She has further stated in her cross-examination that, her marriage was taken place with the deceased about 15 years back and there is difference of 5 years in between the age of her and her deceased husband and at the time of marriage, she was 20 years old. Further, there is discrepancy in mentioning the actual age of the deceased Raju in the above said Police and medical documents. Ex.P.6 Inquest disclosed that, at the time of accident, the deceased Raju was 35 years old and Ex.P.8 Postmortem Report disclosed that, he was 24 years old. By considering all these, i.e., oral version of P.W.1 and SCH-7 50 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 the contents of Police and Medical documents, it appears that, at the time of accident, the deceased was 37 years old. Hence, the age of the deceased Raju is considered as 37 years at the time of accident.
36. The P.W.1 has stated that, the deceased was working as a Coolie under the Respondent No.1 and her husband Late Raju was hale and healthy and at the time of death, he was earning Rupees 10,000/- per month by doing Coolie work. The R.W.1, who is the Respondent No.1 has stated that, Mr. Raju was working under him as a Coolie and he was drawing a salary of Rupees 10,000/- p.m. and he was paying the salary to him by way of cash. He has further stated in his cross-examination that, he used to pay wages of Rupees 10,000/- each to the deceased Raju and Nagappa. Neither the Petitioners nor the Respondent No.1 has produced any authenticated documents to show that, at the time of accident, the income of the deceased Raju was Rupees 10,000/- p.m. In this regard, the R.W.1 in his cross-examination has clearly stated that, he has not produced any documents. From this, it is made crystal clear that, no authenticated documents are available on behalf of the Petitioners to show that, at the time of accident, the deceased Raju was earning a sum of Rupees 10,000/- p.m. But, it no way affect to consider the case of the Petitioners for consideration of the avocation and income of the deceased at the time of accident, as, while answering Issue No.2 in both the cases, this Tribunal has already observed and come to the conclusion that, at the time of accident, the deceased Raju was working as a Coolie under the Respondent No.1. Further, as per the Gazette SCH-7 51 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 Notification dated 31.05.2010, the monthly wages of the workers is specified as of Rupees 8000/- with effect from the date of publication of the said Notification in the Gazette, i.e., on 31.05.2010, which reads thus, "MINISTRY OF LABOUR AND EMPLOYMENT NOTIFICATION New Delhi, the 31st May, 2010 S.O. 1258(E) - In exercise of the powers conferred by sub-section (1B) of Section 4 of the Employee's Compensation Act, 1923 (8 of 1923), the Central Government hereby specifies, for the purposes of Sub-section (1) of the said Section, the following amount as monthly wages, with effect from the date of publication of this Notification in the Official Gazette, namely :-
"Eight thousand rupees"
37. The date of accident is on 02.04.2012. This Tribunal has already held that, the deceased was working under the Respondent No.1 as a Coolie and during the course of employment under the Respondent No.1, deceased Raju succumbed to the injuries, which is clearly proved by the Petitioners. Therefore, the amount of Rupees 8,000/- as monthly wages as per the said Gazette Notification is aptly applicable to the present case. Hence, without much discussion, the monthly wages of the deceased is considered as Rupees 8,000/- p.m. at the time of incident.
SCH-7 52 E.C.A.No.47/2014
C/w E.C.A.No.49/2014
38. The P.W.1 has stated that, due to sudden demise of her husband Raju, they are undergoing great pain and sufferings, mental shock and agony. She has further stated that, her deceased husband was contributing his entire income for their family maintenance and after his untimely death, their family has put to great hardship for their livelihood and he was the only bread earner of the family. She has further stated that, the Petitioners No.2 and 3 are the minors and she has got burden to provide education to Petitioners No.2 and 3 and to perform their marriage.
39. As this Tribunal has already observed and come to the conclusion that, the Petitioners are the legal representatives and dependents of the deceased Raju, who died due to the accidental injuries, when he was working as a coolie under the Respondent No.1, which caused when he was travelling in the offending Tempo 407 bearing Registration No.KA-02-AB-9963, during the course of employment under the Respondent No.1. Hence, the Petitioners are entitled for compensation under the following heads.
40. The factors, which determine the amount of compensation, is already decided by this Tribunal in the above said discussion and Issues.
41. The wages of the deceased is already held at Rupees 8,000/- per month. As per Section 4(1)(a) of the Employees' Compensation Act, 1923, where death results from the injury, an amount equal to 50% of the monthly wages of the deceased, i.e., SCH-7 53 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 employee multiplied by the relevant factor or an amount of Rupees 1,20,000/-, whichever is more shall be considered. Therefore, the income per month comes to Rupees 4,000/- (Rs.8,000/- x 50%).
42. As this Tribunal has already come to the conclusion that, at the time of accident, the age of the deceased was 37 years. The applicable multiplier corresponding to the said age of 37 years as per Schedule IV is 192-14. Therefore, the loss of dependency arising out of the death of the deceased Sri. Raju for monthly income of Rupees 4,000/- by applying multiplier 192-14 comes to Rupees 7,68,560/-, i.e., (Rupees 4,000/- x 192-14). Hence, the Petitioners are entitled for Rupees 7,68,560/- towards loss of dependency due to death of Sri.Raju.
43. The P.W.1 has stated that, they have spent Rupees 30,000/- towards funeral and other charges. But, to consider the same, no material documents are produced by the Petitioners.
44. As per Section 4(4) of the Employees Compensation Act, 1923, the employer shall pay not less than Rupees 5,000/- towards the expenditure of the funeral of the deceased employee. Therefore, the Petitioners are entitled for a sum of Rupees 5,000/- towards funeral expenses.
45. In all, the Petitioners are entitled for total compensation of Rupees 7,73,560/-.
SCH-7 54 E.C.A.No.47/2014
C/w E.C.A.No.49/2014
46. The Respondent No.1 was aware of the employment of the deceased, accident, injuries and death of deceased during the course of employment and having aware that, the Petitioners have filed the present case, he has neither deposited the required compensation within the stipulated time nor intimated the incident to the concerned Authority in accordance with law. Hence, it is just, proper and necessary to award interest at the rate of 12% per annum on the said compensation amount from 02.05.2012 till the deposit of the said compensation amount. Therefore, the Petitioners are entitled for total compensation of Rupees 7,73,560/- along with interest at the rate of 12% per annum, from 02.05.2012 till payment.
47. E.C.A.NO.49/2014 :- The Petitioners have not produced any authenticated documents to consider the actual age of the deceased Nagappa at the time of accident. Ex.P.15 Postmortem Report relating to the said deceased Nagappa is only the available document on record to consider his age at the time of accident. In Ex.P.15 Postmortem Report, the age of the deceased is shown as 18 years. Hence, the age of the deceased Nagappa is considered as 18 years at the time of accident.
48. The P.W.2 has stated that, the deceased was working as a Coolie under the Respondent No.1 and his son Late Nagappa was hale and healthy and at the time of death, he was earning Rupees 10,000/- per month by doing Coolie work. The R.W.1, who is the Respondent No.1 has stated that, Mr. Nagappa was working under him as a Coolie and he was drawing a salary of Rupees SCH-7 55 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 10,000/- p.m. and he was paying the salary to him by way of cash. He has further stated in his cross-examination that, he used to pay wages of Rupees 10,000/- each to the deceased Raju and Nagappa. Neither the Petitioners nor the Respondent No.1 has produced any authenticated documents to show that, at the time of accident, the income of the deceased Nagappa was Rupees 10,000/- p.m. In this regard, the R.W.1 in his cross-examination has clearly stated that, he has not produced any documents. From this, it is made crystal clear that, no authenticated documents are available on behalf of the Petitioners to show that, at the time of accident, the deceased Nagappa was earning a sum of Rupees 10,000/- p.m. But, it no way affect to consider the case of the Petitioners for consideration of the avocation and income of the deceased at the time of accident, as, while answering Issue No.2 in both the cases, this Tribunal has already observed and come to the conclusion that, at the time of accident, the deceased Nagappa was working as a Coolie under the Respondent No.1. Further, as per the above referred Gazette Notification dated 31.05.2010, the monthly wages of the workers is specified as of Rupees 8000/- with effect from the date of publication of the said Notification in the Gazette, i.e., on 31.05.2010. The date of accident is on 02.04.2012. This Tribunal has already held that, the deceased was working under the Respondent No.1 as a Coolie and during the course of employment under the Respondent No.1, deceased Nagappa succumbed to the injuries, which is clearly proved by the Petitioners. Therefore, the amount of Rupees 8,000/- as monthly wages as per the said Gazette Notification is aptly applicable to the present case. Hence, without much discussion, the monthly wages SCH-7 56 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 of the deceased is considered as Rupees 8,000/- p.m. at the time of incident.
49. The P.W.2 has stated that, due to sudden demise of deceased Nagappa, they are undergoing great pain and sufferings, mental shock and agony. He has further stated that, his deceased son was contributing his entire income to their family maintenance and after his untimely death, their family has put to great hardship for their livelihood and he was the only bread earner of the family. He has further stated that, the Petitioner No.3 is a minor and he and Petitioner No.2 have got burden to provide education to her and to perform their marriage.
50. As this Tribunal has already observed and come to the conclusion that, the Petitioners are the legal representatives of the deceased Nagappa, but, the Petitioner No.2, who is the mother of the deceased is the only dependent of the said deceased, who died due to the accidental injuries, when he was working as a coolie under the Respondent No.1, which caused when he was travelling in the offending Tempo 407 bearing Registration No.KA-02-AB- 9963, during the course of employment under the Respondent No.1. Hence, the Petitioners are entitled for compensation under the following heads.
51. The factors, which determine the amount of compensation, is already decided by this Tribunal in the above said discussion and Issues.
SCH-7 57 E.C.A.No.47/2014
C/w E.C.A.No.49/2014
52. The wages of the deceased is already held at Rupees 8,000/- per month. As per Section 4(1)(a) of the Employees' Compensation Act, 1923, where death results from the injury, an amount equal to 50% of the monthly wages of the deceased, i.e., employee multiplied by the relevant factor or an amount of Rupees 1,20,000/-, whichever is more shall be considered. Therefore, the income per month comes to Rupees 4,000/- (Rs.8,000/- x 50%).
53. As this Tribunal has already come to the conclusion that, at the time of accident, the age of the deceased was 18 years. The applicable multiplier corresponding to the said age of 18 years as per Schedule IV is 226-38. Therefore, the loss of dependency arising out of the death of the deceased Sri. Nagappa for monthly income of Rupees 4,000/- by applying multiplier 226-38 comes to Rupees 9,05,520/-, i.e., (Rupees 4,000/- x 226-38). Hence, the Petitioners are entitled for Rupees 9,05,520/- towards loss of dependency due to death of Sri.Nagappa.
54. The P.W.1 has stated that, they have spent Rupees 60,000/- towards funeral and other charges as the body was taken to Bhimanahalli of Yadagiri District. But, to consider the same, no material documents are produced by the Petitioners.
55. As per Section 4(4) of the Employees Compensation Act, 1923, the employer shall pay not less than Rupees 5,000/- towards the expenditure of the funeral of the deceased employee. Therefore, the Petitioners are entitled for a sum of Rupees 5,000/- towards funeral expenses.
SCH-7 58 E.C.A.No.47/2014
C/w E.C.A.No.49/2014
56. In all, the Petitioners are entitled for total
compensation of Rupees 9,10,520/-.
57. The Respondent No.1 was aware of the employment of the deceased, accident, injuries and death of deceased during the course of employment and having aware that, the Petitioners have filed the present case, he has neither deposited the required compensation within the stipulated time nor intimated the incident to the concerned Authority in accordance with law. Hence, it is just, proper and necessary to award interest at the rate of 12% per annum on the said compensation amount from 02.05.2012 till the deposit of the said compensation amount. Therefore, the Petitioners are entitled for total compensation of Rupees 9,10,520/- along with interest at the rate of 12% per annum, from 02.05.2012 till payment.
58. The P.W.1 has stated that, the Respondent No.1 is the R.C. Owner of Tempo 407 bearing Registration No.KA-02-AB- 9963. She has further stated that, they got issued a Legal Notice dated 20.02.2013, sent on 22.02.2013 for herself and also on behalf of other Petitioners, calling upon the Respondents to pay compensation of Rupees 15.00 lakhs for untimely death of her husband and father of Petitioners No.2 and 3 respectively within 15 days from the date of receipt of the notice and the notice sent through RPAD on 22.02.2013 to the Respondent No.1 has been returned unserved 'Not Claimed' and notice on Respondent No.2 duly served on 25.02.2013 and even after service of notice, the SCH-7 59 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 Respondents have not replied nor paid the compensation amount. She has further stated that, the Respondent No.1 being the owner of the Tempo bearing Registration No.KA-02-AB-9963 and the Respondent No.2 is the insurer of the said vehicle and hence, both the Respondents are liable to pay the compensation as claimed by them. She has further stated that, in spite of several requests, follow ups and demands made by them, the Respondents are failed to settle the claim so far. To corroborate the said oral version of P.W.1, the Petitioners in E.C.A.No.47/2014 have produced Ex.P.11 Office copy of Legal Notice dated 20.02.2013, Ex.P.12 Postal Acknowledgements 2 in numbers, Ex.P.13 Returned Unserved Postal Cover, Ex.P.13(a) Copy of Notice kept in Ex.P.13 and Ex.P.14 Postal Receipts 4 in numbers.
59. The P.W.2 has stated that, the Respondent No.1 is the R.C. Owner of Tempo 407 bearing Registration No.KA-02-AB- 9963. He has further stated that, they got issued a Legal Notice dated 20.02.2013, sent on 22.02.2013 for them and also on behalf of the Petitioner No.3, calling upon the Respondents to pay compensation of Rupees 15.00 lakhs for untimely death of his son and the brother of the Petitioner No.3 within 15 days from the date of receipt of the notice and the notice sent through RPAD on 22.02.2013 to the Respondent No.1 has been returned unserved 'Not Claimed' and the notice on Respondent No.2 duly served on 25.02.2013. He has further stated that, the Respondent No.1 being the owner of the Tempo bearing Registration No.KA-02-AB- 9963 and the Respondent No.2 is the insurer of the said vehicle and hence, both the Respondents are liable to pay the SCH-7 60 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 compensation as claimed by them. He has further stated that, in spite of several requests, follow ups and demands made by them, the Respondents are failed to settle the claim so far. To corroborate the said oral version of P.W.2, the Petitioners in E.C.A. No.49/2014 have produced Ex.P.17 Office copy of Legal Notice dated 20.02.2013, Ex.P.18 Returned Unserved Postal Cover and Ex.P.18(a) Copy of Notice kept in Ex.P.18.
60. The R.W.1, who is the Respondent No.1, has stated in his examination-in-chief that, he is the registered owner of the vehicle bearing Registration No.KA-02-AB-9963 and he is using the vehicle for his business purpose. He has further stated that, at the time of accident, one Reddy @ Shiva Reddy was the driver of the Tempo bearing Registration No.KA-02-AB-9963, he was having valid driving licence to drive the said vehicle. He has further stated in his cross-examination that, at the time of accident, the vehicle was valid Insurance Policy and he is the owner of R.C. vehicle and 6-7 years back, he has purchased his lorry and it is a goods carriage vehicle.
61. The R.W.3, who is a Legal Manager of the Respondent No.2, has stated that, their Company has issued Goods Carrying Insurance Policy in favour of Respondent No.1 in respect of vehicle bearing Registration No.KA-02-AB-9963. In this regard, the Respondent No.2 has produced Ex.R.3 Insurance Policy. He has further stated in his cross-examination that, Ex.R.1 Insurance Policy is a package policy and as on the date of accident, the offending vehicle was having valid Insurance Policy. He has SCH-7 61 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 further stated that, the Respondent No.1 was a registered owner of the offending vehicle at the time of accident.
62. From the above said material evidence, both oral and documentary, it is made crystal clear that, at the time of accident, the Respondent No.1 was a registered owner and the Respondent No.2 was an insurer of the offending Tempo 407 bearing Registration No.KA-02-AB-9963 and its Insurance Policy was valid, which covers the date of accident.
63. It is pertinent to note here that, the name of the driver of the said offending Tempo 407 bearing Registration No.KA-02- AB-9963 is shown as Srinivasa Reddy in Ex.P.1 FIR. In Ex.P.4 Charge Sheet, the name of the accused, who was a driver of the offending Tempo 407 bearing Registration No.KA-02-AB-9963, is shown as Reddy @ Shiva Reddy S/o. Shantha Mallappa. From this, it appears that, there is discrepancy in mentioning the name of the driver of the offending vehicle in the Police records. As this Tribunal has already observed that, the R.W.1 has stated that, at the time of accident, one Reddy @ Shiva Reddy was the driver of the Tempo bearing Registration No.KA-02-AB-9963. Even though there is discrepancy in mentioning the name of the driver in Ex.P.1 FIR and Ex.P.4 Charge Sheet, it no way affect to consider the actual driver of the said offending Tempo 407, who was driving it at the time of accident, as, Ex.P.4 Charge Sheet is a conclusive proof as it was filed by the Investigation Officer after thorough investigation and as such, based on Ex.P.4 Charge Sheet, it can be safely held that, at the time of accident, one Reddy @ Shiva SCH-7 62 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 Reddy S/o. Shantha Mallappa was driving the offending Tempo 407 bearing Registration No.KA-02-AB-9963.
64. The R.W.1 has stated that, the said driver Reddy @ Shiva Reddy was having a valid driving licence to drive such class of vehicle at the time of accident. No doubt, there is no specific Section mentioned by the Investigation Officer in Ex.P.4 Charge Sheet that, the said driver was not having a valid and effective driving licence to drive such class of offending Tempo 407 at the time of accident. But, it is clearly leveled the allegations in Ex.P.4 Charge Sheet itself by the Investigation Officer that, the said driver was not having a valid and effective driving licence to drive such class of offending Tempo 407. Further, the Respondent No.2 has examined the A.R.T.O, West, Rajajinagar, Bengaluru as R.W.2, who by producing Ex.R.2 Driving Licence Extract relating to Reddy S/o. Shanthamallappa has stated that, as per Ex.R.2 Driving Licence, the driver, who is having Ex.R.2 Driving Licence has authorized to drive LMV non-transport vehicles and the person, who is having Ex.R.2 Driving Licence has not authorized to drive LGV 407 vehicle and LGV 407 vehicles comes under category of transport vehicles and to drive such class vehicle, transport vehicle authorization is required. He has further stated that, the said transport vehicle authorization is not mentioned in Ex.R.2 and the offending vehicle bearing Registration No.KA-02-AB-9963 is registered in their Office and only goods can be transported in LGV 407 Vehicle, not the passenger. From this material evidence, it is made crystal clear that, at the time of accident, the driver of the offending Tempo 407 bearing Registration No.KA-02-AB-9963 SCH-7 63 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 was not having a valid and effective driving licence to drive such class of offending vehicle.
65. It is clearly mentioned in Ex.R.3 Insurance Policy that, "any person including the insured, provided that, a person driving holds and effective driving licence at the time of accident and is not disqualified from holding or obtaining such a license and provided also that, the person hold an effective Learner's License may also drive the vehicle and that, such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989". When the driver of the offending Tempo 407 was not having a valid and effective driving licence to drive such class of offending vehicle at the time of accident, it is a clear violation of the said terms and conditions of Ex.R.3 Insurance Policy. Hence, the Respondent No.2, who is the insurer of the offending Tempo 407 bearing Registration No.KA-02-AB-9963, is not liable to pay the above said compensation and interest to the Petitioners in both the cases, by indemnifying the Respondent No.1.
66. Further, the R.W.3 has stated that, as per the policy the seating capacity of the vehicle bearing Registration No.KA-02- AB-9963 is two only, but, at the time of accident, there are more than 21 passengers are traveling in the said vehicle as unauthorized passengers, against to its seating capacity. She has further stated that, the deceased Raju and Nagappa are traveling as unauthorized passengers in Goods Vehicle bearing Registration No.KA-02-AB-9963. She has further stated that, the vehicle in question was registered as goods carrying vehicle and insured SCH-7 64 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 with the Respondent No.2 as goods carrying vehicle, which is constructed to carry goods alone and cannot carry any passengers in violation of rules to the Motor Vehicles Act and conditions of the policy. She has further stated that, as on the date of alleged accident, the Goods Vehicle bearing Registration No.KA-02-AB- 9963 was not having a valid fitness certificate to ply in the public place and it is against to the provisions of Motor Vehicles Act.
67. As admitted by the R.W.1, he is using the Tempo 407 for his business purpose. The said offending Tempo 407 bearing Registration No.KA-02-AB-9963 is a Light Goods Vehicle, which comes under the category of the transport vehicle. The R.W.1 in his cross-examination has clearly stated that, the seating capacity of the offending Lorry is 1 + 1. The P.W.1 in her cross-examination has stated that, at the time of accident, they were 20 persons were traveling in the offending vehicle. In Ex.P.1 FIR, the lists of 20 persons, who were traveling in the offending Tempo 407 at the time of accident, are clearly mentioned. The same has also been clearly mentioned in Ex.P.4 Charge Sheet. From this, it appears that, at the time of accident, they were 20 persons were traveling in the offending Tempo 407. From this material evidence, it appears that, though the seating capacity of the offending 407 Tempo was 2 only, at the time of accident, more than 21 passengers were traveling in the Tempo 407, which is in violation of the conditions of the permit, F.C and Insurance Policy of the said offending vehicle. It is further made crystal clear that, the deceased Raju and Nagappa, who were traveling in the offending Tempo 407 bearing Registration No.KA-02-AB-9963 were SCH-7 65 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 unauthorized passengers and the Respondent No.1, being a registered owner of the offending Tempo 407 bearing Registration No.KA-02-AB-9963 has clearly violated the terms and conditions of the admitted Ex.R.3 Insurance Policy. Under such circumstances, the Respondent No.1 being a registered owner of the offending Tempo 407 bearing Registration No.KA-02-AB-9963 is only liable to pay the above said compensation and interest to both the Petitioners in both cases. Further, it is pertinent to note here that, though both the Petitioners by issuing a Legal Notice dated 20.02.2013 have called upon the Respondent No.1 to pay compensation to them in respect of death of Raju and Nagappa respectively, the Respondent No.1 did not care to pay compensation to the Petitioners and not deposited the compensation in accordance with law before the competent Authority within a time prescribed under law. Hence, the Respondent No.1 is alone liable to pay the above said compensation and interest to the Petitioners in both the cases. Hence, the petitions filed the Petitioners in both cases are liable to be allowed only as against the Respondent No.1 and they are liable to be dismissed as against the Respondent No.2.
68. In view of the above said reasons and findings on Issues, the principles enunciated in the decision cited by the Learned Counsel appearing for the Petitioners are not applicable to the present facts and circumstances of the case on hand. On the other hand, the principles enunciated in the decisions cited by the Learned Counsel appearing for the Respondent No.2 are aptly applicable to the present facts and circumstances of the case on SCH-7 66 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 hand. Hence, Issue No.3 in both cases are answered accordingly.
69. ISSUE NO.4 IN E.C.A.No.47/2014 :- For the aforesaid reasons, I proceed to pass the following, ORDER The petition filed by the Petitioners under Section 22 of the Workmen Compensation Act, 1923 is hereby partly allowed, with costs as against the Respondent No.1.
The petition filed by the Petitioners under Section 22 of the Workmen Compensation Act, 1923 is hereby dismissed as against the Respondent No.2.
The Petitioners are entitled for compensation of Rupees 7,73,560/-
with interest at the rate of 12% p.a. from 02.05.2012 till the date of payment, from the Respondent No.1.
The Respondent No.1 shall deposit the said compensation and interest in this Tribunal, within one month from the date of this Order.
SCH-7 67 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 The Petitioners No.1 to 3 shall share the compensation and interest in the ratio of 60:20:20.
In the event of deposit of compensation and interest, 50% share relating to the Petitioner No.1 shall be released in her favour through account payee cheque, on proper identification.
Remaining 50% share relating to the Petitioner No.1 shall be kept in F.D in her name in any nationalized Bank of her choice, for a period of 3 years.
The entire shares relating to the Petitioners No.2 and 3 shall be kept in F.D. in their respective names in any nationalized Bank of the choice of their guardian, till they attain the age of majority.
Advocate's fee is fixed at Rupees 1,000/-.
Original copy of the Judgment
shall be kept in E.C.A.No.47/2014 and
the copy of the same shall be kept in
E.C.A.No.49/2014.
SCH-7 68 E.C.A.No.47/2014
C/w E.C.A.No.49/2014
Draw award accordingly.
70. ISSUE NO.4 IN E.C.A.No.49/2014 :- For the aforesaid reasons, I proceed to pass the following, ORDER The petition filed by the Petitioners under Section 22 of the Workmen Compensation Act, 1923 is hereby partly allowed, with costs as against the Respondent No.1.
The petition filed by the Petitioners under Section 22 of the Workmen Compensation Act, 1923 is hereby dismissed as against the Respondent No.2.
The Petitioners are entitled for compensation of Rupees 9,10,520/-
with interest at the rate of 12% p.a. from 02.05.2012 till the date of payment, from the Respondent No.1.
The Respondent No.1 shall deposit the said compensation and interest in this Tribunal, within one month from the date of this Order.
SCH-7 69 E.C.A.No.47/2014 C/w E.C.A.No.49/2014 The Petitioners No.1 to 3 shall share the compensation and interest in the ratio of 10:80:10.
In the event of deposit of compensation and interest, entire share relating to the Petitioner No.1 and 50% share relating to the Petitioner No.2 shall be released in their favour through account payee cheques, on proper identification.
Remaining 50% share relating to the Petitioner No.2 shall be kept in F.D in her name in any nationalized Bank of her choice, for a period of 3 years.
The entire share relating to the Petitioner No.3 shall be kept in F.D. in her name in any nationalized Bank of the choice of her guardian, till she attains the age of 21 years.
Advocate's fee is fixed at Rupees 1,000/-.
Original copy of the Judgment
shall be kept in E.C.A.No.47/2014 and
SCH-7 70 E.C.A.No.47/2014
C/w E.C.A.No.49/2014
the copy of the same shall be kept in
E.C.A.No.49/2014.
Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by him corrected and then, pronounced by me in the open Court on this, the 16th day of April, 2016.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONERS :-
P.W.1 : Smt. Sunitha
P.W.2 : Shanappa
P.W.3 : Devappa
2. DOCUMENTS MARKED BY THE PETITIONERS :-
Ex.P.1 : True copy of FIR
Ex.P.2 : True copy of Statement
Ex.P.3 : True copy of Complaint
Ex.P.4 : True copy of Charge Sheet
Ex.P.5 : True copy of Requisitions
Ex.P.6 : True copy of Inquest along with
Statements
Ex.P.7 : True copy of Spot Panchanama
Ex.P.8 : True copy of Postmortem
Report relating to Deceased Raju
SCH-7 71 E.C.A.No.47/2014
C/w E.C.A.No.49/2014
Ex.P.9 : True copy of MVI Report
Ex.P.10 : Residential Certificate
dated 30.06.2012
Ex.P.11 : Office copy of Legal Notice
dated 20.02.2013
Ex.P.12 : Postal Acknowledgements
(2 in numbers)
Ex.P.13 : Returned Unserved Cover
Ex.P.13(a) : Copy of Notice kept in Ex.P.13
Ex.P.14 : Postal Receipts (4 in numbers)
Ex.P.15 : True copy of Postmortem
Report relating to deceased Nagappa
Ex.P.16 : Residential Certificate
dated 30.06.2012
Ex.P.17 : Office copy of Legal Notice
dated 20.02.2013
Ex.P.18 : Returned Unserved Postal Cover
Ex.P.18(a) : Copy of Notice Kept in Ex.P.18
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
R.W.1 : Shantha Mallappa
R.W.2 : C. Surendra
R.W.3 : Madhumathi Hegde
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
Ex.R.1 : Notarised Xerox copy of Ration Card Ex.R.2 : Driving Licence Extract relating to Reddy S/o. Shanthamallapa Ex.R.3 : The copy of Insurance Policy (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.