Bangalore District Court
Bhagyamma vs Mohan.N on 1 February, 2024
KABC020151502022
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS
TRIBUNAL, BENGALURU CITY
SCCH4
PRESENT: RAJU.M.., M.A., LL.B.,
Member, MACT
XVIII ADDL. JUDGE,
Court of Small Causes,
BENGALURU.
Dated this the 1st day of February2024
MVC No.3339/2022
PETITIONERS: 1. Smt.Bhagyamma,
W/o Late Mariyappa.B,
Aged about 47 years,
Krishnappa Building,
Near Ganesha Temple,
Channanayakanapalya,
Tumkur Road560 073.
(By Sri.Shivakumar.M., Adv.,)
V/s
RESPONDENTS: 1. Mohan.N,
S/o Narasimamurthy,
No.8, Sumukha, 19th Cross,
Mutyalanagara,
SCCH4 2 MVC No.3339/2022
Gokul Post, Bandappa Garden,
Bengaluru560 054.
(By Sri.Yogendra., Adv.,)
2. The Manager,
Kotak General Insurance,
Door No.4, 1st Floor, Shubashree
Pride, South End Road,
Beside Bharathi Nursing Home,
Jayanagara,
Bengaluru560 082.
(By Sri.Kiran Pujar., Adv.,)
JUDGMENT
The petitioners have filed this petition U/s 166 of the Motor vehicles Act claiming compensation for the death of Chethana.M, in a motor vehicle accident that occurred on 09.04.2022.
2. The case of the petitioner, in brief, is as follows:
On 09.04.2022 at about 7.30 p.m., the deceased Chethana.M was crossing the road in NH75, Kunigal Nelamangala Road, Thippasandra Hand Post, Thippasandra Hobli, Magadi Taluk, Ramanagara District SCCH4 3 MVC No.3339/2022 at that time a car bearing Reg.No.KA04MH1168, driven the vehicle in a very high speed rash and negligent manner endanger to human life dashed to the petitioner. Due to the impact, the deceased sustained head injury and died in the spot.
The petitioners have spent more than Rs.2,00,000/ towards the conveyance, food and nourishment, funeral and obsequies ceremony expenses and transportation of dead body etc., The deceased was working as helper in the Priya Industries, Tumkur Road, Bengaluru and he was earning a sum of Rs.22,000/ per month and he was contributing the same to his family maintenance but due to untimely death of deceased the petitioners have suffered mentally and physically. The petitioner has lost love and affection and care taker.
SCCH4 4 MVC No.3339/2022 The respondent No.1 and 2 are the owner and insurer are jointly and severally liable to pay the compensation to the petitioners. Hence, prays to award compensation of Rs.40,00,000/ with interest.
3. After service of notices the respondent No.1 and 2 have entered appearance through their advocates and filed their written statements separately.
The respondent No.1 in its written statement contended that, the petition filed by the petitioner is not maintainable either in law or on facts. Further contended that, there is no any violation and negligence on part of drive of the vehicle. There was no negligence on his part in driving the said vehicle. Further contended that, insurance policy was valid as on the date of the accident.
The respondent No.2 in its written statement contended that, the insurance policy was in force as on the date of the accident and the liability if any is SCCH4 5 MVC No.3339/2022 subjected to terms and conditions of the policy. Further contended that, the accident was occurred only due to self negligence of the deceased while negligently crossing a national highway. Further contended that, the owner of the vehicle willfully entrusted the vehicle to the said driver. The driver of the car bearing reg.no.KA04MH 1168 was not holding driving license and there was also no permit to the said vehicle.
Further both respondents have denied the age, avocation and income of the deceased. The compensation has claimed by the petitioner is highly excessive and exorbitant. Hence, the respondent No.1 and 2 have prays to dismiss the petition with cost.
4. On the basis of the rival contentions, the following issues are framed by this court:
1. Whether the petitioner proves that deceased Chethana.M died in the Motor Vehicle accident that, occurred on 09.04.2022 SCCH4 6 MVC No.3339/2022 at about 7.30 p.m., on NH75, Kunigal Nelamangala Road, Thippasandra Hand Post, Thippasandra Hobli, Magadi Taluk, Ramanagara District?
2. Whether the petitioner prove that she is the legal heir and dependant of deceased?
3. Whether the petitioner is entitled for compensation? If so, what amount and from whom?
4. What order or award?
5. In order to prove the claim petition, petitioner herself is examined as PW.1 and got marked the documents at Ex.P.1 to Ex.P.11. When the case was put for evidence of respondents, the counsel for respondent no.2 has submitted no evidence on their behalf.
6. I have heard the arguments of learned counsel for both the parties.
7. My findings on the above issues are as under.
Issue No.1: In the affirmative,
Issue No.2 : In the affirmative.
Issue No.3: Partly in the affirmative,
SCCH4 7 MVC No.3339/2022
Issue No.4: As per the final orders
for the following.
REASONS
ISSUE NO.1:
8. That by reiterating all the averments made in the petition, the petitioner has filed his affidavit in lieu of chief examination, which is considered as P.W.1. In support of his claim, she has produced certified copies of FIR, complaint, spot mahazar along with sketch, Inquest report, notice issued u/s 133 of MV Act along with reply issued by owner of the vehicle, IMV report, PM report and charge sheet. All these documents are marked under Ex.P.1 to 8.
9. As per the documents, Honnappa who is the petitioner's elder father of the deceased Chethana.M has lodged complaint with Kudur Police station, Ramanagar District, on 10.04.2022, at about 7.40 p.m., the complainant received a phone call from the mobile SCCH4 8 MVC No.3339/2022 belonging to Chethana.M and some unknown person told that, at about 7.30 p.m., while Chethan was crossing the road near Thippasandra Hobli, Magadi Taluk, the driver of the car bearing Reg.No.KA04MH1168 came in a rash and negligent manner with high speed and dashed to Chethan. Consequently, she sustained head injury and died on the spot itself. Immediately after receipt of information, the complainant came to the place of the accident and saw the dead body of Chethana and the car bearing Reg.No.KA04MH1168 which was caused the accident was also there. Subsequently, the dead body was shifted to Government Hospital, Nelamangala.
10. On the basis of the complaint, the police have registered FIR against the driver of the car referred in the complaint, thereafter, the police have conducted Inquest report. As per the PM report the cause of death is due to severe sudden shock, cardio respiratory arrest SCCH4 9 MVC No.3339/2022 immediately to grievous injuries to the vital parts like the head and abdomen due to RTA. The injuries found on the dead body of Chethana are also noted in the Inquest as well as PM report.
11. The police during the investigation have visited the place of the accident and also drawn site plan which disclose that, the accident has occurred near the zebra cross. While drawing the Spot Mahazar the police have also seized the alleged offending vehicle.
12. The police during the investigation have also issued notice to respondent No.1 to furnish the documents in respect of his car. After receipt of notice the respondent issued reply stating that, he is the RC owner of the car bearing Reg.No.KA04MH1168 and he himself was riding the said vehicle at the time of the accident. The damages caused to the vehicle involved in the accident is also noted in the IMV report.
SCCH4 10 MVC No.3339/2022
13. The jurisdictional police after completion of investigation have submitted charge sheet against respondent No.1. for the offences punishable under section 279, 304(A) of IPC. The allegation made in the complaint as well as charge sheet are one and the same.
14. The respondent No.1 in his written statement has denied the accident, but he admits the contents of the claim petition in column No.14(a), 15 and 16, that means the respondent No.1 admits that, he is the owner of the car bearing Reg.No.KA04MH1168 and the injured was died.
15. Though the respondent No.2 has filed the statement of objection and denied the claim petition.
Further contended that, the accident was occurred only due to self negligence of the petitioner while negligently crossing the national highway that means, the respondent No.2 also not disputed the accident.
SCCH4 11 MVC No.3339/2022
16. During the course of argument the learned counsel appearing for R2 has submitted that if the deceased cross the road on the Zebra Cross the accident would have not occurred.
Of course the deceased was not crossing the road on the zebra cross but, she was crossing the road near the zebra cross which is meant to cross the road by pedestrian. There is no much gap between the zebra cross and the place where the accident is taken place. When there is zebra cross which is meant for pedestrian, before crossing the zebra cross the respondent No.1 being the driver of the alleged offending vehicle ought to have taken more caution and he has to slow down his vehicle. Because the respondent cannot stop the vehicle on the zebra cross itself. Since, the accident has occurred near the zebra cross, no negligence can be attributed against the deceased.
SCCH4 12 MVC No.3339/2022
17. As per settled principle of law the standard of proof in the claim petition like the present is probability ties of preponderance. In the absence of contra evidence the oral as well as documentary evidence of petitioners is to be accepted under law. Hence, I come to the conclusion that Chethana.M died due to the accidental injuries sustained by him due to rash and negligent driving of the car bearing Reg.No.KA04MH1168 which belonging to respondent No.1. Accordingly, I answer issue No.1 in the affirmative.
ISSUE NO.2:
18. As held herein above, the petitioners have proved that Chethana.M died on 09.04.2022 due to the injuries sustained in RTA. The said accident is caused by driver of the vehicle belonging to the respondent No.1.
19. As contended in the petition the petitioner is the mother of the deceased Chethana.M. The petitioner to SCCH4 13 MVC No.3339/2022 prove her relationship with deceased, has produced notarized copies of Aadhar cards of herself and deceased. These documents are marked at Ex.P.11. During the course of evidence the original Aadhar cards are compared with the notarized copies, found correct and returned the same to the petitioners. These document supports the relationship stated in the petition. There is no dispute with regard to the relationship of petitioner and the deceased.
20. In the claim petition, strict proof of relationship is not necessary like in civil suit. The respondent also not adduced contra evidence. Considering the documentary and oral evidence there are sufficient material to show that the petitioners being the mother is the dependent of deceased. Accordingly, I answer issue No.2 in the affirmative.
SCCH4 14 MVC No.3339/2022
ISSUE No.3:
21. Now the quantum of compensation is to be decided. As mentioned in petition as on the date of accident the age of deceased was 22 years. As per Aadhar card marked at Ex.P.11, the date of the birth of the deceased is mentioned as 20.01.2000. The accident was occurred on 09.04.2022. So, as on the date of the accident the deceased was aged 22 years.
22. As stated in the petition deceased was working as as helper in the Priya Industries, Tumkur Road, Bengaluru and he was earning a sum of Rs.22,000/ per month. In this regard the petitioner has produced employee ID card and 3 pay slips of the deceased which are marked at Ex.P9 and bank statement of the deceased is marked at Ex.10. As per these documents the petitioner has taken salary of Rs.12,066/, Rs.13,522/ and Rs.10,399/ in the month of December2021, SCCH4 15 MVC No.3339/2022 January2022 and February2022 respectively. These amount is also credited to the bank account of the petitioner. Since the salary is different from month to month, if average salary is considered the monthly income comes to Rs.11,995/ then the annual income comes to Rs.1,43,940/.
As per Sarala varma case the proper multiplier applicable to the age of deceased is 18. The future loss of income is Rs.25,90,920/. Since the deceased was bachelor 50% is to be deducted towards his personal expenses, then the total loss of dependency would be Rs.12,95,460/
23. In Civil Special leave petition (Civil No.25590/2014 dated 31.10.2016 (National Insurance Company Ltd., Vs. Pranay Sethi & others), the Hon'ble Supreme Court has held that "While determining the SCCH4 16 MVC No.3339/2022 income, in case the deceased was selfemployed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.."
24. In another reported decision in Civil Appeal Nos.1920 of 2021 in between Kirti and Another, V/s Oriental Insurance Company Ltd., as follows;
"When it comes to the second category of cases, relating to notional income for nonearning victims, it is my opinion that the above principle applies with SCCH4 17 MVC No.3339/2022 equal vigor, particularly with respect to homemakers. Once notional income is determined, the effects of inflation would equally apply. Further, no one would ever say that the improvements in skills that come with experience do not take place in the domain of work within the household. It is worth nothing that, although not extensively discussed, this Court has been granting future prospects even in cases pertaining to notional income, as has been highlighted by my learned brother, Surya Kant, J., in his opinion (Hem Raj V. Oriental Insurance Company Limited, (2018) 15 SCC 654: Sunita Tokas V. New India Insurance Company Ltd., (2019) 20 SCC 688)".
25. As per the above decisions 40% out of loss of dependency has to be granted towards future prospects which would Rs.5,18,184/.
SCCH4 18 MVC No.3339/2022
26. The petitioner is the mother of deceased. Hence I inclined to award a sum of Rs.44,000/ for loss of consortium. Rs.27,500/ towards loss of love and affection, Rs.16,500/ towards loss of estate and Rs.16,500/ towards funeral expenses (this amount is calculated as per Pranaya Sethi case with enhanced rate at 10% after three years).
27. The petitioners are entitled for compensation under the following heads:
1. Loss of dependency Rs. 12,95,460/
2. Loss of future prospects Rs. 5,18,184/
3. Loss of consortium to Rs. 44,000/ petitioner
5. Loss of estate Rs. 16,500/
6. Funeral expenses Rs. 16,500/ Total Rs. 18,90,644/
28. Admittedly the respondent No.1 and 2 are the owner and insurer of the offending vehicle. Hence, the respondent No.1 and 2 are jointly and severally liable to SCCH4 19 MVC No.3339/2022 pay the compensation to the petitioner and the respondent No.2 insurance company shall indemnify the compensation on behalf of the respondent No.1 with interest at the rate of 6% p.a., Accordingly, I answer this issue partly in the affirmative.
ISSUE NO.4:
29. For the foregoing reasons, I proceed to pass the following:
ORDER The petition filed by the petitioner U/s 166 of the Motor Vehicles Act is hereby partly allowed with cost.
The petitioner is entitled for total compensation amount of Rs.18,90,644/ (Rupees Eighteen Lakhs Ninety Thousand Six Hundred and Forty Four Only) with interest at the rate of 6% p.a., from the date of petition till the realization from respondents.
The respondent No.2 shall deposit the compensation amount within 60 days from the date of this order.
SCCH4 20 MVC No.3339/2022 Out of total compensation awarded to the Petitioner, 50% of the same to be released in favour of petitioner through Epayment on her proper identification and remaining 50% to be kept in Fixed Deposit in any Nationalized or Scheduled Bank, for a period of three years, in her name.
Advocate fee is fixed at 1,500/.
Draw the award accordingly.
(Dictated to the Stenographer, transcribed by her, the transcript corrected and then pronounced by me in the open court on this the 1st day of February2024) (RAJU.M) XVIII ADDL.JUDGE Court of Small Causes & MACT., Bengaluru.
ANNEXURE List of witnesses examined for petitioners:
PW.1 Smt.Bhagyamma List of documents marked on behalf of the petitioners:
Ex.P1 True copy of FIR Ex.P2 True copy of Complaint Ex.P3 True copy of Spot Mahazar along with Sketch Ex.P4 True copy of Inquest Report Ex.P5 True copy of notice issued U/s 133 of MV Act along with SCCH4 21 MVC No.3339/2022 reply issued by owner of the vehicle Ex.P6 True copy of IMV Report Ex.P7 True copy of PM Report Ex.P8 True copy of Charge Sheet Ex.P9 True copy of Pay Slips of the deceased 3 in nos. Ex.P10 True copy of Bank Statement of the deceased Ex.P11 Notarized copies of 2 Aadhar Cards and Employee ID Card List of witnesses examined for Respondents:
NIL List of documents marked on behalf of the Respondents:
NIL XVIII ADDL.JUDGE Court of Small Causes & MACT., Bengaluru.Digitally signed by RAJU M
RAJU DN: cn=RAJU M,ou=HIGH COURT OF KARNATAKA,o=HIGH COURT OF KARNATAKA,st=Karnatak M a,c=IN Date: 2024.02.22 16:58:45 IST