Bangalore District Court
Mohammed Aslam @ Aslam vs Kumar .B on 8 December, 2015
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
BANGALORE. (SCCH-11)
DATED THIS 8th DAY OF DECEMBER, 2015
PRESENT: SRI. GANAPATI GURUSIDDA BADAMI, B.A,LL.B(SPL).
I ADDL.SMALL CAUSES JUDGE & XXVII ACMM
M.V.C NO.2932/2014
PETITIONERS: 1. Mohammed Aslam @ Aslam,
S/o late Basha,
Aged about 35 years.
2. Aseena Taj
W/o Mohammed Aslam @ Aslam,
Aged about 30 years,
Both residing at
Thimmasandra Village,
Chikkamudavadi post,
Kanakapura Taluk,
Ramangara District.
(By pleader - Sri. G.C. Rajesh)
- V/S -
RESPONDENTS: 1. Kumar .B
S/o Boregowda .L
Thubinakere village,
Athgur Hobli,
Maddur Taluk,
Mandya District.
(RC owner of Lorry Regn. No.KA-11-A-5569)
(By pleader - Sri.C.P.Dhananjaya)
SCCH-11 2 MVC.NO.2932/2014
2. HDFC Ergo General Insurance
Company Limited,
No.14, 1st Floor, H.M. Geneva House,
Cunningham road,
Bangalore-52.
Policy No.2315200393597501000
Period : 15.12.2013 to 14.12.2014.
(By pleader - Sri.V.Shrihari Naidu)
3. Mahadevaiah .G
S/o. Doddanna,
No.1204/1264, Krupa Apartments,
Papareddy Palya,
Bangalore-72.
(By pleader - Sri.C.P.Dhananjaya)
*********
JUDGMENT
Petitioners have filed this claim petition against the respondents claiming the compensation for the death of deceased Yasmin Taj in the road traffic accident.
2) It is averred that, on 3.7.2014 at about 12:15pm, the deceased Yasmin Taj was pedestrian on Kanakapura- SCCH-11 3 MVC.NO.2932/2014 Ramanagar road near Thimmasandra village, Kanakapura Taluka, Ramanagara district. At that time, the driver of lorry bearing No.KA-11-A-5569 has driven the said vehicle in rash and negligent manner endangering human life with high speed without observing traffic rules and regulations and dashed to the deceased. Due to said impact, the deceased sustained grievous injuries and succumbed to the injuries on the spot.
3) After the accident, the dead body of the deceased was shifted to Government hospital Kanakapura wherein post mortem was conducted and dead body was handed over to the petitioners who shifted the dead body to their residence and conducted funeral obsequies by spending Rs.1,00,000/- including transportation charges.
4) Due to sudden and sad demise of the deceased, petitioners have undergone deep mental shock, pain and suffering and financial hardship.
SCCH-11 4 MVC.NO.2932/2014
5) Prior to the accident, the deceased was hale and healthy and aged 12 years and she was very active and studying VII std at Primary School Mudavadi Gate, Kanakapura Taluka. The deceased was earning Rs.6,000/- per month by assisting to her parents in vegetable business and due to untimely death of deceased in the tragic incident, petitioners have been put to great financial hardship and misery.
6) The accident has taken place due to rash and negligent driving by the driver of offending vehicle and jurisdictional police have registered the case against the driver of offending vehicle for the offences punishable under section 279,304-A of IPC. The respondents being owner and insurer of offending vehicle are jointly and severally liable to pay the compensation to the petitioners. Hence, the petitioners have claimed the compensation of Rs.20,00,000/- along with interest and costs.
SCCH-11 5 MVC.NO.2932/2014
7) The respondent No1 has filed written statement and denied the contents of claim petition. It is admitted that, the respondent No1 is owner of offending vehicle bearing No.KA-11-A-5569 and all RTO documents pertaining to the said vehicle are standing in the name of respondent No1 and said vehicle was insured with respondent No2 under insurance policy bearing No.2315200393597501000 which was valid from 15.12.2013 to 14.12.2014 and insurance policy was inforce as on the date of the accident and driver of said vehicle was holding valid and effective driving licence as on the date of the accident. If this Hon'ble Court comes to conclusion in granting the compensation, the respondent No2 alone is liable to pay the compensation to the petitioners. The compensation claimed by the petitioners is highly excessive, unreasonable and speculative in nature. The respondent No1 may be permitted to file additional written statement under changed circumstances. Therefore, it is prayed for dismissal of claim petition with costs.
SCCH-11 6 MVC.NO.2932/2014
8) The respondent No3 has filed written statement and denied the contents of claim petition. It is also contended that, the respondent No3 is not R.C.Owner of offending vehicle and respondent No1 has insured with respondent No2 under insurance policy bearing No.2315200393597501000 which was valid from 15.12.2013 to 14.12.2014 and insurance policy was inforce as on the date of the accident and driver of said vehicle was holding valid and effective driving licence as on the date of the accident. If this Hon'ble Court comes to conclusion in granting the compensation, the respondent No2 alone is liable to pay the compensation to the petitioners. The compensation claimed by the petitioners is highly excessive, unreasonable and speculative in nature. The respondent No.3 may be permitted to file additional written statement under changed circumstances. Therefore, it is prayed for dismissal of claim petition with costs.
SCCH-11 7 MVC.NO.2932/2014
9) The respondent No.2 has filed written statement and denied the contents of claim petition. It is contended that, the respondent No2 has given to understand that, the driver of lorry was driving the same carefully and cautiously on the correct side of the road and the accident has taken place solely due to carelessness and negligence on the part of deceased herself who was darting across the road without observing flow of traffic on the road. It is contended that, the respondent No2 has not issued insurance policy in respect of vehicle of lorry bearing No.KA-11-A-5569 in question in favour of respondent No1 covering date of the accident and the respondent No2 has not issued any policy of insurance in respect of vehicle in question in favour of respondent No1 and there is no privity of contract between the respondent insurance company and respondent No1 for any sort of indemnification. The respondent No1 has made proposal for motor policy of insurance in respect of lorry bearing No. KA- 11-A-5569 in question and remitted premium amount by way of cheque and issued cheque in favour of respondent No2. On SCCH-11 8 MVC.NO.2932/2014 receipt of said cheque, the respondent No2 has issued cover note subject to realization of premium paid by cheque and on presentation of said cheque for encashment through its Bankers, it was returned un-encashed with endorsement as drawers signature differs. On receipt of such information, the respondent No2 has cancelled insurance policy from its inception and informed to the respondent No1 about dishonouring of cheque and subsequent cancellation of cover note from inception through letter. The respondent No2 will be at risk, if the premium amount is realized and not otherwise as per section 64VB of Insurance Act. As the premium amount was not realized, the respondent No2 will not be at risk as on the date of the accident as there was no contract of insurance existed between the respondent No1 and 2 as on the date of the accident and respondent No2 was not insurer of lorry as on the date of the accident. As the premium amount paid by the respondent No2 by way of cheque was dishonoured, the respondent No2 has cancelled cover note since from inception and there will not be risk on SCCH-11 9 MVC.NO.2932/2014 the date of the accident and there cannot be any liability on the respondent No2. Without prejudice, it is submitted that, respondent No1 has willfully entrusted the vehicle to the person who did not had valid and effective driving licence as on the date of the accident. As per Insurance Regulatory and Development Authority (Manner of Receipt of Premium) Regulations 2002 in exercise of powers under sub-section (6) of Section 64VB and 114A of Insurance Act 1938, rules are framed in consultation with Insurance Advisory Committee, IRDA has framed Rule (4) in which it is clearly stated that, if the consideration amount towards insurance is not realized by the insurer, the policy shall be treated as viod ab-initio. The respondent No2 has shown the extract of said rules in the written statement. The Rule 4 of Regulation framed by IRDA which was constituted under a statute is binding upon companies doing business in India. Hence, no contract existed as on the date of the accident and respondent No2 is not liable to indemnify the respondent No1. The compensation claimed by the petitioners is highly excessive, SCCH-11 10 MVC.NO.2932/2014 exorbitant and against the principles of computation of damages. In case, compensation is awarded, then interest on such compensation shall be 6% per annum in view of decision of Hon'ble High Court. Therefore, it is prayed for dismissal of claim petition with costs.
10) Petitioner No1 himself examined as PW1 and got marked ExP.1 to 12 and closed the evidence. The respondent No1 himself examined as RW1 and got marked ExR.1 and 2 and also examined Sri.P.S.Egna Prasad S/o PBS Chowdry as RW3 and got marked ExR.8 and closed the evidence. The respondent No2 has examined Sri.Gururaj S/o Srinivasagouda as RW2 and got marked ExR.3 to 7 and closed the evidence.
11) Heard the arguments of learned counsel for petitioners and learned counsels for respondent No1 to 3 and perused the evidence on record.
SCCH-11 11 MVC.NO.2932/2014
12) On the basis of pleadings of the parties, following issues have been framed:
ISSUES
1) Whether petitioner proves that, on 03.07.2014 at about 12.15 p.m., when deceased Yashmin Taj was going as pedestrian on Kanakapura-Ramanagara Road near Thimmasandra village of Kanakapura Taluk, driver of lorry bearing No.KA-11-A-5569 driven the said lorry from Ramanagar towards Kanakapura side in rash and negligent manner endangering human life with high speed and dashed to the deceased by which she succumbed to the injuries on spot?
2) Whether petitioners are entitled for the compensation as prayed in the claim petition? If so, what is quantum of the compensation and from whom?
3) What Order or award?
-:ADDITIONAL ISSUES:-
1. Whether respondent No2 proves that as on the date of accident, offending vehicle was not insured with the respondent No2?
2. Whether respondent No2 proves that, as on the date of the accident, driver of offending vehicle was not holding valid and effective driving licence and the owner of offending vehicle violated the terms and conditions of insurance policy?SCCH-11 12 MVC.NO.2932/2014
13) My findings on the above issues are as under:
Issue No.1 : Affirmative;
Addl. Issue No.1 : Affirmative;
Addl. Issue No.2 : Negative;
Issue No.2 : Partly Affirmative; the
petitioner is entitled to
compensation of
Rs.4,32,500/- with simple
interest @ of 6% p.a. from
the date of petition till
complete realisation, from
respondent No.1
Issue No.3 : As per final order, for the
following:
REASONS
14) ISSUE No.1: PW1 has stated in his evidence that,
on 3.7.2014 at about 12:15pm, his deceased daughter by name Yasmin Taj was pedestrian on Kanakapura-Ramanagar road near Thimmasandra village, Kanakapura Taluka, Ramanagara district. He has also stated that, at that time, the driver of lorry bearing No.KA-11-A-5569 has driven the said vehicle in rash and negligent manner endangering human life with high speed without observing traffic rules SCCH-11 13 MVC.NO.2932/2014 and regulations and dashed to the deceased by which deceased succumbed to the injuries on the spot. He has also stated that, the accident has taken place due to rash and negligent driving by the driver of offending vehicle and jurisdictional police have registered the case against the driver of offending vehicle and filed charge sheet against him for the offences punishable under section 279, 304-A of IPC.
15) In the cross examination of PW1, he has admitted that, he has not witnessed the accident. He has stated that, one Meheboob Pasha informed him about the accident to his daughter. He has admitted that, he is well acquainted about road at the place of alleged accident. He has admitted that, he visited to the place of the accident after the accident. He has stated that, he enquired to the neighbors at the place of accident and road at the place of the accident is having 15 feet width and there is no zebra cross at the place of the accident. He has admitted that, hand sketch map drawn by the police is correct. He has admitted that, as per hand SCCH-11 14 MVC.NO.2932/2014 sketch map drawn by the police, road at the place of the accident is having 20 feet width and there is footpath on both sides of the road. He has stated that, young school going children were accompanying his deceased daughter at the time of the accident. He has denied the suggestion that, the accident has taken place while crossing the road by his deceased daughter without observing movement of vehicles on the road in hurry mood to reach house and due to her negligence, the accident has taken place.
16) Petitioners have produced true copy of FIR and complaint which are marked as ExP.1 and 2 and as per said documents, on 3.7.2014 at about 12:15pm, when the deceased Yasmin Taj was returning to her house after attending classes on the footpath road near Sante Mandawadi gate on Ramanagara-Kanakapur road, at that time, driver of lorry bearing No. KA-11-A-8569 has driven the said vehicle in rash and negligent manner endangering human life with high speed and dashed to the deceased by which she died on the SCCH-11 15 MVC.NO.2932/2014 spot. On the basis of complaint filed by grand father of the deceased on the same day at about 1:00pm, the police have registered FIR.
17) Petitioners have also produced true copy of spot panchanama which is marked at Ex.P.3 and as per the said document, the police drawn panchanama on 3.7.2014 at about 5:00pm to 6:00pm in the presence of pancha witnesses in the open space belonged to Salam Sab near Muslim graveyard on Ramanagar to Kanakapura main road. The petitioners have produced IMV report which is marked at Ex.P.4 and as per the said document, front wind screen glass damaged to the vehicle bearing No.KA-11-A-5569. The petitioners have also produced true copy of hand sketch map which is marked at Ex.P.5 and as per the said document, bus bearing No.KA-11-A-5569 came from east west direction on extreme southern side of the road at the edge of the southern side of the road and dashed to the deceased. The petitioners have also produced inquest panchanama which is marked at SCCH-11 16 MVC.NO.2932/2014 Ex.P.6 and as per the said document, police have drawn the inquest panchanama on the dead body of the deceased. The petitioners have also produced post mortem report which is marked at Ex.P.6. The petitioners have produced true copy of charge sheet which is marked at Ex.P.7 and as per the said document, police have filed charge sheet against the driver of offending vehicle for the offences punishable under Section 279, 304(A) of IPC.
18) On perusal of the police documents and oral evidence of PW.1, they reveal that, the accident has taken place due to rash or negligent driving by the driver of the offending vehicle who has driven the said vehicle on extreme southern side of the road and at the edge of the southern side of the road and dashed to the deceased by which deceased succumbed to the injuries on the spot. So, I hold that, petitioners have proved the rash or negligent act of the driver of offending vehicle. Accordingly, I answer issue No.1 in affirmative.
SCCH-11 17 MVC.NO.2932/2014
19) Addl.Issue No.1:- The respondent No.2 has taken contention that, as the date of accident, offending vehicle was not insured with the respondent No.2. It is the contention of the respondent No.2 that, the respondent No.1 had made a proposal for motor policy of insurance in respect of the lorry bearing Regn. No.KA-11-A-5569 and remitted the premium amount by way of cheque and issued cheque bearing No.550850 for Rs.30,300/- drawn on Vijaya Bank dated 13.12.2013 and respondent No.2 has issued cover note policy bearing No.2315 2003 9359 7501 000 in favour of the respondent No.1 in respect of the said vehicle. As per the contention of the respondent No.2, when the said cheque was presented to the Bank for realization, it was dishonoured with endorsement as ''drawer signature differs from specimen'' and the respondent No.2 on receipt of such information has cancelled the policy from its inception and informed to the respondent No.1 about dishonouring of cheque after cancellation of cover note/policy from its inception through SCCH-11 18 MVC.NO.2932/2014 its letter. It is also the contention of the respondent No.2 that, since respondent insurance company has not insured the said vehicle as on the date of accident, it is not liable to pay compensation to the petitioners and only respondent No.1 is liable to pay the compensation to the petitioners. The respondent No.1 who is owner of said vehicle has stated in his chief evidence that, he is RC owner of the offending vehicle bearing Regn.No.KA-11-A-5569 and said vehicle was insured with respondent No2 for the period from 15.12.2013 to 14.12.2014 and as on the date of accident, the driver of the said vehicle was holding valid and effective driving licence. In the cross-examination of RW.1 by learned counsel for respondent No.2, he has admitted that, all transactions are being done by him from Vijaya Bank, Kesthur Branch and if any cheque pertaining to him is received by the Bank, the Bank authority will inform him. He has admitted that, since he is doing business, the bank authorities will make entries in the pass book about day to day transactions. He has admitted that, the cheque shown to him is belonged to him SCCH-11 19 MVC.NO.2932/2014 which is marked as Ex.R.3 and he issued cheque for Rs.30,300/- on 13.12.2013 and insurance policy was issued for the validity period from 15.12.2013 to 14.12.2014 and premium amount mentioned in the policy is Rs.30,300/-. He has not disputed his signature on the Ex.R.3 cheque. He has admitted that, there will be specimen signature in the Bank and in case of any difference in the signature, it will be intimated by the Bank. The learned counsel for respondent No.2 has relied upon the Hon'ble Supreme Court reported in (United India Insurance Company Limited Vs. Ayeb Mohammed and others) S.L.P.No.6043 of 1991 dated 1.4.1991. In the said decision, the insurer had issued notice to the registering authority and parties that, the cheque bounced and the liability ceases. But Hon'ble High Court recorded the finding that, the notice of cancellation has not been served on the insured and the cheque had bounced was a matter within the knowledge of the insured and there would be that presumption and in ordinary circumstances, no special notice would be required. He has also relied upon the SCCH-11 20 MVC.NO.2932/2014 Judgment of Hon'ble High Court in MFA No.1837/2008 in between New India Assurance company Limited by its Manager Vs. Smt.Padmayathamma W/o.K.N.Venkaraju and others. In the said decision, Hon'ble High Court has held that, the tribunal has no power to give direction to pay the compensation and to recover the amount and possible inspiration drawn from the Judgments of the Hon'ble Supreme Court issuing such a direction cannot also be pressed into service since the Supreme Court would be in a position to issue such directions by virtue of its extraordinary powers under Article 142 of the Constitution of India. Such power is not available to the Tribunal.
20) He has also relied upon the Judgment of MFA No.7945/2009 in (The Oriental Insurance company Ltd., Vs. Miss.Sheela Bhavani @ Sheela and another) in which Hon'ble High Court has set aside order to pay and recover the award from the owner of vehicle. He has also relied upon decision of 2008 ACJ 725 (United India Insurance SCCH-11 21 MVC.NO.2932/2014 Company Limited Vs. A.Narayana Reddy and others). In the said decision, cheque dishonoured with the remark 'funds expected, present again next day'' and insurance company cancelled the policy from the inception and sent registered letter to the insured, but cancellation was not notified to the registering authority and insurance company produced receipt issued by postal authorities and served postal acknowledgment, but date of receipt of letter by insured is not mentioned and accident taken place one week after cancellation letter was sent to the insured and contention that cheque was not presented again and the insurance company was justified in repudiating the contract when cheque was dishonoured and insurance company is exempted from liability.
21) The learned counsel for respondent insurance company has also relied upon decision of Hon'ble High Court in 2008 ACJ 1528 (United India Insurance Company Limited Vs. Suresh Chandrayya Haladevaramath and SCCH-11 22 MVC.NO.2932/2014 others) in which it is held that, cheque issued towards premium was dishonoured and insurance company cancelled the policy, intimation of cancellation was forwarded to the insured and Regional Transport Office was informed and Hon'ble High Court held that, there was no effective policy on the date of accident and insurance company is not liable to pay compensation. He has also relied of upon decision of (National Insurance Company Limited Vs. Kumari Martina and Another) ILR 2009 KAR 2776 in the said decision, the dishonour of cheque issued towards the premium due to insufficiency of funds, intimation was given to insurer. It is held that, the insurance company is not liable to satisfy the claim made by the claimant on cancellation of the Insurance policy. The insured obtained the cover note by entering into an insurance contract with the insurer. The cheque issued towards premium of Rs.4,281/- and the cheque was dishonoured and the insurer immediately informed the insured about the dishonour of the cheque and the resultant cancellation of the policy since inception. The said intimation SCCH-11 23 MVC.NO.2932/2014 was sent by registered post and the insurer notified the concerned RTO. The Hon'ble High Court has held that, the insurance contract being one without consideration, is void in terms of S.25 of the Contract Act and as a necessary corollary, the insured cannot have the coverage of the policy and demand performance of indemnity by the insurer.
22) The learned counsel for petitioner has relied upon the decision reported in Hon'ble Supreme Court in (United India Insurance Company Limited Vs. Laxmamma & Ors) AIR 2012 Supreme Court 2817 in which the policy issued on receipt of cheque towards payment of premium and cheque dishonoured, liability of insurer as yet subsists till cancellation of policy and accident taken place before cancellation of policy and insurer is liable to pay compensation. The learned counsel for petitioner has submitted that, insurer has to satisfy award of compensation by reason of the provisions of Sections 147(5) and 149(1) of the Motor Vehicles Act unless the policy of insurance is SCCH-11 24 MVC.NO.2932/2014 cancelled by the authorized insurer and intimation of such cancellations has reached the insured before the accident. The learned counsel for petitioner has also relied upon Judgment of Hon'ble Delhi High court reported in (Usha Aggarwal Vs. Parmod Kumar Gupta and others) 2014 ACJ 2590, in which the cheque issued towards premium was dishonoured and insurance company informed the insured and cancelled the cover note much before the date of accident. In the said decision, Hon'ble High Court has held that, as per Section 147(5) and 149(1) of Motor Vehicles Act, the liability of insurance company in damages to third party risks continues for the entire period covered by the policy in spite of cheque issued towards payment of premium being dishonoured and consequent cancellation of policy. The insurance company issued the policy upon receipt of cheque towards premium in contravention of the provision of Section 64-VB of the Insurance Act and policy of insurance being public interest concept prevails over the interest of the insurance company and insurance company directed to pay SCCH-11 25 MVC.NO.2932/2014 compensation and then recover the same from owner of offending vehicle. He has also relied upon the decision of 2014 ACJ 2725 (Shashi Mohan Dwivedi and another Vs. Ganesh and others), in the said decision, the cheque was dishonored and Hon'ble High Court has held that, the insurance company can recover the amount from the owner- insured by initiating proceedings before the executing court and Hon'ble High Court relied upon decision of Hon'ble Supreme Court reported in 2012 ACJ 1307.
23) On perusal of the evidence on record, the respondent No.1 issued cheque as per Ex.R.3 bearing No.550850 for Rs.30,300/- drawn on Vijaya Bank, Kesthur Branch, Mandya district dated 13.12.2013 and said cheque has been returned with the endorsement as drawer signature differs from specimen on 28.12.2013 and endorsement has been issued which is marked at Ex.R.4. The respondent insurance company issued policy cancellation intimation as Ex.R.5 and 6 on 1.1.2014 to the respondent No.1 and SCCH-11 26 MVC.NO.2932/2014 produced postal acknowledgment which is marked at Ex.R.7 which is served on 11.1.2014 on Smt.Shruthi. The respondent No.1 has produced Ex.R.8 which is the account extract and as per the said document, as on 27.12.2013, there was Rs.52,936.55 ps. The respondent No.1 has adduced the evidence of Manger of Vijaya Bank as RW.3. Sri.B.Kumar is holding bank account in our Vijaya Bank, Kesthur Branch since 4 years and they have issued cheque book to the B.Kumar and cheque bearing No.18550850 of Vijaya Bank, Kesthur Branch had not come to bank for clearance, but it was presented to the Central Clearance System, Bangalore and he has no intimation about endorsement as specimen signature will not tally. In the cross-examination, he has admitted that, cheque has been presented to the central clearance system. The central clearance system will send endorsement to the presenting bank. He will not come to know about endorsement issued by Central Clearance System to the presenting bank. He will not get any intimation from Central Clearance System about SCCH-11 27 MVC.NO.2932/2014 presentation of cheque belonged to his bank customer. He has admitted that, since they will not come to know about dishonour of cheque, they will not issue intimation to the account holder and they have not intimated to the account holder about dishonor of cheque, but they will not have the knowledge about dishonor of cheques. He has admitted that, there was amount of Rs.52,516/- in the account of B.Kumar and the account holder has issued cheque for Rs.30,300/-. On perusal of the evidence on record, the accident has taken place on 3.7.2014 at about 12.15 pm., The respondent No.1 issued cheque bearing No.550850 dated 13.12.2013 for Rs.30,300/- drawn on Vijaya Bank, Kesthur branch and said cheque was presented to the Bank which returned as drawer signatures differs on 27.12.2013. The respondent insurance company issued intimation as per Ex.R.5 and 6 on 1.1.2014 which is served upon wife of the respondent No.1 by name Smt.Shruthi on 11.1.2014. No doubt, there was sufficient funds in the account of the respondent No.1 as per Ex.R.8 and to that effect, he has examined the Manager of Vijaya SCCH-11 28 MVC.NO.2932/2014 Bank, Kesthur branch. But, now a day, the banking transactions is being done through online and the central clearance system will receive the cheque which will send endorsement to the presenting bank and it will not come to the notice of the Vijaya Bank, Kesthur branch about endorsement issued by Central clearance system to the presenting bank. The respondent No.1 has done bank transactions on 28.12.2013 and withdrawn amount on 2.1.2014 withdrawn amount of Rs.50,000/- on 2.1.2014 and there was balance of Rs.2,516.55 in his account on that day. He issued cheque on 13.12.2013 and said cheque was presented on 27.12.2013 which is returned as drawer signatures differs. On 14.12.2013, the respondent No.1 withdrawn Rs.20,000/- and there was balance of Rs.2,816.22. Even though, there was sufficient funds in the account of Respondent No.1 as on the date of presentation of cheque, the cheque returned unpaid as drawer signatures differs from the specimen and intimation has also delivered to the respondent No.1 which is received by his wife. When he SCCH-11 29 MVC.NO.2932/2014 has received endorsement from the insurance company, he would have given reply to the insurance company about sufficient funds in his account. He has knowledge regarding cheque issued by him and knowing this fact, he has withdrawn the Rs.50,000/- on 2.1.2014 and also credited Rs.1,00,000/- on 3.1.2014 and he would have knowledge about the fact that, he had issued cheque to the insurance company. When he has received the intimation from the insurance company, he would have approached insurance company and enquired or informed about sufficient funds in his account. This goes to show that, he has done transactions even after issuing cheque and when there is endorsement as drawers signatures differs, there will not any message or intimation to the Vijaya Bank, Kesthur branch as due to computerization and monitoring of bank transaction by Central System, the bank in which the account is having will not get any intimation. Even as per the admission of RW.3 in his cross-examination, they will take 2 signatures in the specimen signature card which will be uploaded in the SCCH-11 30 MVC.NO.2932/2014 system and after the scrutinizing the signature, payment will be made. In this case, signature differs and cheque was dishonoured. The respondent No.1 who is doing regular banking transactions was having knowledge regarding dishonour of the cheque and intimation was also given to him by insurance company, no reply has been given. So, I hold that, the respondent insurance company has intimated the respondent No.2 and cancelled the policy from the date of inspection and the insurance policy has been cancelled from the date of inception and insurance company is not liable to pay the compensation. So, I answer Addl.Issue No.1 in the affirmative.
24) Addl.Issue No.2: The respondent No.2 has taken contention that, as on the date of accident, driver of the offending vehicle was not holding valid and effective driving licence and the owner of the offending vehicle violated the terms and conditions of insurance policy. But, this contention of the respondent No.2 is not acceptable.Because, SCCH-11 31 MVC.NO.2932/2014 the police have registered the case against the driver of the offending vehicle and after the investigation, they have filed charge sheet under section 279, 304(A) of I.P.C and there are no materials on record to show that, the driver was not holding valid and effective driving licence. The police have not filed charge sheet under section 3 R/W.S.181 of Motor Vehicle Act and respondent No.2 has not adduced the evidence of licensing authority to prove that, as on the date of accident, the driver was not holding valid and effective driving licence. In the absence of any materials on record by respondent No.2, I hold that, the contention taken by the respondent No.2 on the said aspect is not acceptable. So, I answer Additional issue No.2 in the Negative.
25) ISSUE No.2:- PW.1 has stated in his evidence that, his daughter by name Yashmin Raj died on the spot and immediately after the accident, dead body was shifted to Government Hospital, Kanakapura wherein, post mortem examination was conducted and handed over the dead body SCCH-11 32 MVC.NO.2932/2014 to them and they shifted the dead body to their residence and conducted funeral and obsequious ceremonies.
26) He has stated that, they have spent Rs.1,00,000/- towards transportation of dead body and funeral obsequious. The petitioners would have spent some amount towards transportation of dead body and funeral obsequious and they will not be any documents to that effect. However, by following principle laid down by the Hon'ble Supreme Court reported in Rajesh and others Vs. Rajbeer Singh and others, 2013 ACJ 1403, I hold that, petitioners are entitled for compensation of Rs.25,000/- under head of transportation of dead body and funeral obsequious.
27) Petitioners have produced inquest panchanama and post mortem report about the death of deceased in the road traffic accident. Due to the untimely death of deceased, petitioners have lost love and affection and they have to suffer throughout the life in the memories of the deceased daughter SCCH-11 33 MVC.NO.2932/2014 and they have lost love and affection. Considering this fact, I feel it just and proper to award the compensation of Rs.30,000/- under the head of loss of love and affection.
28) PW.1 has stated in his evidence that, at the time of accident, his deceased daughter was aged about 12 years and she was hale and healthy and she was studying in 6th standard at Primary Urdu School, Sante Mudavadi gate, Kanakapura Taluk and apart from that, his deceased daughter was earning Rs.6,000/- per month by assisting them in selling vegetables and on account of death of the deceased, they have been put to financial hardship and untold misery. The deceased Yashmin Taj was minor and she was a student and there are no documents about the income of the deceased. She is non earning member as she was student at the time of accident. Hence, petitioners are entitled for compensation of Rs.2,500/- under the head of loss of estate.
SCCH-11 34 MVC.NO.2932/2014
29) PW.1 has stated in his evidence that, his daughter was studying in Urdu school, Sante Mudavadi gate, kanakapura taluk and she was also assisting them in selling vegetable business and earning Rs.6,000/- per month. Since the deceased was minor and non earning member, it is just and proper to go through the proposition of law about the income of non earning members. In a decision reported in Jitendra Kumar and another V/s Oriental Insurance Company Ltd., and another 2010 ACJ 242 wherein the Hon'ble Delhi High Court awarded the compensation of Rs.3,75,000/- for the death of deceased aged about 3 years. In the said decision, the tribunal assessed monthly income at Rs.15,000/- and deducted 1/3 for the personal expenses of the deceased and applied the multiplier of 15 and awarded Rs.1,50,000/- + 2,500/- for loss of estate and Rs.2,000/- towards funeral expenses. The appellate Court allowed Rs.2,25,000/- towards damages and Rs.75,000/- towards non-regular and Rs.75,000/- for future prospectus and award of Rs.1,54,500/- enhanced to Rs.3,75,000/-. In a decision reported in Manju Devi V/s Musafir Paswan, 2005 ACJ 99 (SC) Hon'ble Supreme Court awarded compensation of Rs.2,25,000/- SCCH-11 35 MVC.NO.2932/2014 for the death of 13 years old by applying multiplier and taking the notional income of Rs.15,000/- as per second schedule -B of Motor Vehicles Act.
In one more decision reported in Sobhagya Devi V/s Sukhvir Singh, II (2006) ACC 1997, the Hon'ble High Court awarded the compensation of Rs.2,25,000/- by following decision of Hon'ble Supreme Court reported in Manju Devi V/s Musafir Paswan, 2005 ACJ 99 (SC) and applied the 2nd schedule -B of Motor Vehicles Act. In one more decision reported in Shyam Narayan V/s Kitty Tours & Travels, 2006 ACJ 320 (Delhi), the Hon'ble Delhi High Court followed the principles laid down in decision of Manju Devi case and awarded the compensation by considering the notional income of Rs.15,000/- and multiplier of 15 as per the 2nd schedule. In the Jitender Kumar and another V/s Oriental Insurance Company Limited and another, the Hon'ble High Court taken the notional income of the deceased at Rs.15,000/- and applied the multiplier of 15 and awarded the compensation. The Hon'ble High Court also awarded compensation of Rs.75,000/- towards future prospectus. In view of the decision that, Hon'ble Supreme Court reported in R.K. SCCH-11 36 MVC.NO.2932/2014 Malik V/s Kiran Pal, 2009 ACJ 1924 (SC), the Hon'ble High Court also awarded the compensation of Rs.75,000/- under the head of non-pecuniary damages. By following the ratio laid down in the R.K. Malik case, Hon'ble High Court of Allahabad awarded the total compensation of Rs.3,75,000/-. In this case, if the notional income of deceased is taken at Rs.15,000/- per annum by applying ratio of Hon'ble Supreme Court reported in R.K. Malik V/s Kiran Pal, 2009 ACJ 1924 (SC) and by applying the 2nd schedule as deceased is non-earning person, it is just and proper to award the compensation by applying the multiplier of 15.. If the notional income of the petitioner is taken at Rs.15,000/- by applying the multiplier of 15, the loss of income will be Rs.2,25,000/-. Hence, the petitioners are entitled compensation of Rs.2,25,000/- under the head of loss of income.
30) As per the decision of Hon'ble Supreme Court held that, R.K. Malik V/s Kiran Pal, 2009 ACJ 1924 (SC), the petitioners are entitled for compensation of Rs.75,000/- under the head of future prospectus. Hence, petitioners are awarded compensation of Rs.75,000/- under the head of future prospectus of the children.
SCCH-11 37 MVC.NO.2932/2014
31) In the light of the principles laid down in the decision reported in R.K. Malik V/s Kiran Pal, 2009 ACJ 1924 (SC), the petitioners are entitled for compensation of Rs.75,000/- under the head of non-pecuniary damages. Hence, petitioners are awarded the compensation of Rs.75,000/- under the non-pecuniary damages.
32) The calculation table stands as follows:-
1) Transportation of dead body & Rs. 25,000/-
Funeral expenses
2) Loss of love and affection Rs. 30,000/-
3) Loss of estate Rs. 2,500/-
4) Loss of income Rs. 2,25,000/-
5) Future prospectus Rs. 75,000/-
6) Non-pecuniary damages Rs. 75,000/-
---------------------------------
Total Rs. 4,32,500/-
Therefore, in total, the petitioners are entitled to compensation of Rs.4,32,500/- with simple interest @ 6% p.a. from the date of petition till complete realization.
SCCH-11 38 MVC.NO.2932/2014
33) In view of my discussion in Addl.Issue No.1, the insurance policy was not in existence as on the date of accident and the intimation was given to the insured on 1.1.2014 which is received on 11.1.2014 by his wife and accident has taken place on 3.7.2014. Even though, respondent No.1 received the intimation about dishonour of cheque and cancellation of policy, he has not responded to the insurance company or he has not issued fresh cheque or not remitted the amount by way of cash. So, I hold that, respondent No.1 is liable to pay the compensation to the petitioners and insurance company is not liable. Hence, I hold that, the petitioners are entitled compensation of Rs.4,32,500/- with simple interest at 6% p.a. from the date of petition till complete realization from respondent No.1. Accordingly, I answer this issue No.2 in the partly affirmative.
34) ISSUE No.3: In view of answers to issues No.1 and 2, Addl.Issue No.1 and 2, I proceed to pass the following:
ORDER The petition filed under Section 166 of M.V. Act is partly allowed with costs.SCCH-11 39 MVC.NO.2932/2014
Petitioners are entitled for compensation of Rs.4,32,500/- along with interest at the rate of 6% p.a. from the date of petition till its realization.
The respondent No.1 shall deposit awarded compensation amount within one month from the date of award.
Out of the awarded compensation amount, Rs.2,00,000/- is apportioned to the share of petitioner No.1 and Rs.2,32,500/- is apportioned to the share of petitioners No.2.
In case of deposit of the awarded compensation amount by respondent No.1, out of the share of petitioner No.1, Rs.1,00,000/- shall be deposited in FD in any nationalised or scheduled bank for a period of 5 years and on failing to furnish the particulars, the same shall be deposited in Karnataka Bank, City Civil Court Branch, Bangalore. Remaining amount of Rs.1,00,000/- shall be released by way of account payee crossed cheque, on proper identification and verification.
Out of the share of petitioner No.2, Rs.1,00,000/- shall be deposited in FD in any nationalised or scheduled bank for a period of 5 years and on failing to furnish the particulars, the same shall be deposited in Karnataka Bank, City Civil Court Branch, Bangalore. Remaining amount of Rs.1,32,500/- shall be released by way of account payee crossed cheque, on proper identification and verification.SCCH-11 40 MVC.NO.2932/2014
Accrued interest on the awarded amount shall be released to the petitioner No.2 by way of account payee crossed cheque, on proper identification and verification.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
(Typed to my dictation by the Stenographer, corrected by me, then pronounced in Open court on this 8th day of December, 2015.) (GANAPATHI GURUSIDDA BADAMI) I ADDL.SMALL CAUSES JUDGE & XXVII ACMM ANNEXURE WITNESSES EXAMINED FOR PETITIONERS:
PW.1 - Mohammed Aslam @ Aslam
DOCUMENTS MARKED FOR PETITIONERS:
Ex.P.1 - True copy of F.I.R
Ex.P.2 - True copy of Complaint
Ex.P.3 - True copy of Spot panchanama
Ex.P.4 - True copy of Motor Vehicle Inspection report
Ex.P.5 - True copy of Inquest Panchanama
Ex.P.6 - True copy of Post Mortem report
Ex.P.7 - True copy of Charge sheet
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Ex.P.8 - True copy of Study certificate
Ex.P.9 - Notarised attested copy of Ration card
Ex.P.10 - Notarised attested copy of Election Identity card Ex.P.11 - Notarised attested copy of Election Identity card Ex.P.12 - True copy of hand sketch map WITNESSES EXAMINED FOR RESPONDENTS :
RW.1 - Kumar.B
RW.2 - Gururaj
RW.3 - P.S.Egna Prasad
DOCUMENTS MARKED FOR RESPONDENTS :
Ex.R.1 - Insurance policy
Ex.R.2 - Notarised attested copy of R.C.Smart card
Ex.R.3 - Cheque
Ex.R.4 - Cheque return memo
Ex.R.5 - Letter
Ex.R.6 - Office copy of letter
Ex.R.7 - Postal acknowledgment
Ex.R.8 - Bank statement of B.kumar
I ADDL.SCJ. & MACT.