Bangalore District Court
Gulabi vs Omkar Transport Corporation on 2 January, 2024
KABC020089492021
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES, AT BENGALURU. (SCCH_25)
-: PRESENT:-
SMT. PRAKRITI KALYANPUR, B.A(L),LL.B., LL.M.
XXIII Additional Small Causes Judge, Bengaluru.
DATED THIS THE 2nd DAY OF JANUARY 2024
MVC No.1261/2021
PETITIONER/S: 1. Smt. Gulabi
W/o Late Vishwanath
@ Vishwanath Pillai,
Aged about 56 years,
2. V. Manju Prasad
S/o Late Vishwanath
@ Vishwanath Pillai,
Aged about 31 years,
3. Ranjit Prasad
S/o Late Vishwanath
@ Vishwanath Pillai,
Aged about 28 years,
All are residing at
#05, Kempanna Building,
Kanakapura Main Road,
Ramachandra Shetty Layout,
Kaggalipura 'A' Block,
Kaggalipura,
Bangalore - 560 082.
(By Sri.Ramakrishna K., Advocate.)
2 MVC No.1261/2021
SCCH-25
V/S
RESPONDENT/S 1. M/s Omkar Transport
Corporation,
#76 & 77,
Mysore - Nanjangud Road,
Bandipalya,
Mysore 570 001.
Represented by its Managing
Partner
(RC owner of Lorry bearing
Reg.No.KA09A7018)
(ExParte)
2. Bajaj Allianz General
Insurance Co. Ltd.,
Golden Heights, 4th Floor,
#1/2, 59th 'C' Cross,
4th 'M' Block, Rajajinagar,
Bengaluru - 560 010.
(Insurer of Lorry bearing
Reg.No.KA09A7018)
Policy No.OG203495183100000363
Valid from 27.02.2020 to 26.02.2021.
(By Sri.K.Nagaraja, Advocate.)
3. The Managing Director,
KSRTC,
Sarige Bhavana, KH Road,
Shanthinagar,
Bangalore - 560 027.
(RC owner of KSRTC bus bearing
3 MVC No.1261/2021
SCCH-25
Reg.No.KA09F4916)
(By Sri. M.S.Basavaraju,
Advocate)
4. National Insurance Co., Ltd.,
Regional Office, T.P.Hub,
#144, Shubharam Complex,
MG Road, Bangalore - 560 001.
(Insurer of KSRTC bus bearing
Reg.No.KA09F4916)
Policy No.604400312010002833
Valid from 23.12.2020 to
22.12.2021
(By Sri. V.Srihari Naidu,
Advocate.)
JUDGMENT
The petitioners have filed this Petition under Section 166 of Motor Vehicles Act seeking Compensation of Rs.20,00,000/ for the Death of one Vishwanath @ Vishwanath Pillai in a road traffic accident dated 01.02.2021.
2. The case of the Petitioners' in brief is that:
On 01.02.2021 at about 9.30 am the deceased Vishwanath, a pedestrian on the extreme left side of Mysore 4 MVC No.1261/2021 SCCH-25 Bengaluru Road, near Bidadi Railway Bridge, Bidadi Town & Hobli Ramanagara Taluk & District was walking carefully and cautiously observing all moving vehicles, at that time a Lorry bearing Reg.No.KA09A7018, driven by its driver at high speed in a rash and negligent manner without following any traffic rules and regulations, so as to endanger human life and all of a sudden came and dashed against KSRTC bus bearing Reg.No.KA09F4916 and the Bus went and dashed against the deceased. Due to impact, the deceased was knocked to the ground and sustained grievous head and bodily injuries and died on the spot.
3. The petitioners further averred that, immediately after the accident, the body of the deceased shifted to Rajarajeshwari Hospital, Bangalore wherein post mortem was conducted and then body was handed over to the family members of the deceased and they performed funeral and obsequies. So far they have spent Rs.1,00,000/ towards 5 MVC No.1261/2021 SCCH-25 transportation of dead body, funeral, obsequies and other incidental expenses.
4. The petitioners further stated that, at the time of accident, the deceased was aged about 58 years, hale and healthy and was doing Building Contract Work and earning more than Rs.20,000/ per month and was contributing his entire income for welfare and maintenance of his family. Due to sudden & untimely death of the deceased, the petitioners are undergoing great mental shock, agony and financial loss.
5. The Bidadi Police have registered a case against the drivers of both Lorry and KSRTC bus in their Cr.No.0035/2021 p/u/Sec.279, 304(A) of IPC. The first respondent being the RC owner and second respondent being the insurer of the Lorry bearing Reg.No.KA09A7018 and Third respondent being the RC owner and Fourth Respondent being the insurer of the KSRTC bus bearing Reg.No.KA09F 6 MVC No.1261/2021 SCCH-25 4916 are jointly and severally liable to pay compensation to the petitioners. Hence, this petition.
6. In response to the service of notice, the Respondent Nos.2 to 4 appeared through their respective counsels and filed separate written statements. In spite of due service of notice, the respondent No.1 did not appear hence, placed exparte.
7. The objections of the 2nd respondent:
It has stated that, the petition is not maintainable either on law or on facts. The police did not comply the terms and conditions u/Section 158(6) of M.V. Act. Further the driver of the Lorry bearing Reg.No.KA09A7018 was not holding a valid and effective DL as on the date of accident. The respondent further denied the involvement of Lorry bearing No.KA09A7018. He admitted the issuance of policy to the Lorry. The respondent further contended that the deceased suddenly started to run and to cross from one side to another 7 MVC No.1261/2021 SCCH-25 side by which time KSRTC bus took extreme side and dashed the deceased. Hence the accident was caused due to the negligence of the deceased and the driver of the KSRTC Bus. Hence prayed for dismissal of the petition.
8. The objections of the 3rd respondent:
It has stated that the Bus was on its scheduled trip from Mysore to Bangalore, and was proceeding on the left side of the Four lane Mysore - Bangalore highway. The Lorry which was proceeding on the right lane was driven by its driver in a rash and negligent manner, lost control and abruptly came to the lane of the bus, dashing the bus which in turn resulted in the bus moving to the left and hitting the deceased. The deceased strolling on the High Way even though pedestrian movements are strictly prohibited. Therefore, the driver of the Lorry and deceased are responsible for the accident and there is no negligence on the part of the driver of the KSRTC bus. Hence prays for dismiss the petition as against them. 8 MVC No.1261/2021
SCCH-25
9. The objections of the 4th respondent:
It has admitted the issuance of policy to the KSRTC bus but denied the negligence of the KSRTC Bus. Therefore prayed for dismissal of the petition.
10. On the above rival contentions of the parties, this court has framed the following issues:
1. Whether the Petitioners prove that, they are the legal heirs of the deceased Sri.Vishwanath @ Vishwanath Pillai?
2. Whether the Petitioners prove that, Sri.Vishwanath @ Vishwanath Pillai, died on account of Road Traffic Accident took place on Mysore - Bangalore Road, near Bidadi Railway Bridge, Bidadi Town & Hobli, Ramanagara Taluk & District, due to rash and negligent driving by driver of Lorry vehicle bearing Reg.No.KA09A7018, dated:
01.02.2021 at about 9.30 am?
3. Whether the Petitioners are entitled for compensation? If so, how much and from whom payable
4. What Order or Award? 9 MVC No.1261/2021
SCCH-25
11. In order to prove their case, the Petitioners have examined Petitioner No.1 - Smt. Gulabi - Wife of the deceased as PW.1 and got marked 12 documents as per Exs.P.1 to P.12. On the other side, the Respondent No.3 examined its Driver Sri.Manju K.S. as RW.1 and got marked 1 document as per Ex.R.1. The 4th respondent examined its Dy. Manager as RW.2 and got marked Exs.R.2 & R.3. The 2 nd Respondent examined Miss. Ruchitha Renukesh - Manager - Claims as RW.3 and got marked 2 documents as per Exs.R.4 & R.5.
12. Heard all the Counsels and perused the materials on record.
The counsel for the petitioner has relied upon the following decisions:
1. MFA : 4021/2018 (MV): V.Jagadeesh Vs.Muniswamy & another.
2. 2020 ACJ 759 : National Ins. Co. Ltd., Vs. Birender and Ors.
3. AIR 2017 SC 5157: National Insurance Co. Ltd., Vs. Pranay Sethi & Ors.10 MVC No.1261/2021
SCCH-25
13. My finding to the above issues are as follows: Issue Nos.1 & 2 : In the affirmative Issue No.3 : In the affirmative, Issue No.4 : As per final order for the Following:
REASONS
14. Issue No.1:
It is the case of the Petitioners that, the Petitioner No.1 is the Mother, Petitioner Nos.2 & 3 are the sons of the deceased - Vishwanath @ Vishwanath Pillai. The Petitioners to prove their relationship have examined the 1st Petitioner as PW.1. PW.1 has specifically spoken about this relationship in her chiefexamination. Apart from that, to prove the relationship, the Petitioners have produced Voter ID Card of the 1st petitioner and Notarized copy of Aadhar cards of the petitioner Nos.2 & 3 as per Exs.P.11 & P.12 respectively. In Ex.P.11 - Voter's ID Card of the 1 st petitioner her husband's name is mentioned as Vishwanath Pillai. In Ex.P.12 - Notarized copy of Aadhar Cards of the Petitioner Nos.2 & 3, 11 MVC No.1261/2021 SCCH-25 their father's name is mentioned as Vishwanath Pillai. These documents are public documents and they have got initial presumptive value under law. These documents have not been seriously disputed by the Respondents. The Respondents have not produced any contrary documents to dispute and rebut the contents of documents produced by the Petitioners. As such, there are no reasons to discard the oral and documentary evidence produced by the Petitioners. Under such circumstances, relying upon the oral evidence of PW.1 and the documents, this court is of the opinion that the Petitioner No.1 is the Wife and Petitioner Nos.2 & 3 are the sons of the deceased. Accordingly, Issue No.1 is held in the affirmative.
15. Issue No.2:
The Petitioners to prove that the accident occurred due to the actionable negligence on the part of the drivers of the Lorry and the KSRTC Bus have examined Petitioner No.1 as PW.1 and produced documents as per Exs.P.1 to 4 & P.7 to 12 MVC No.1261/2021 SCCH-25 P.10. PW.1 has reiterated the averments of the petition in her affidavit filed in lieu of her chief examination. On the other side, the Respondents No.2 to 3 have denied the involvement and negligence of their respective vehicles.
16. The documents produced by the Petitioners such as the FIR in Cr.No.0035/2021 of Bidadi Police with FIS, spot and seizure mahazar, Inquest Mahazar, MVA report, spot sketch, PM report and charge sheet as per Exs.P.1 to P.4 and P.7 to P.10 are all public documents and have initial presumptive value under law. These documents fully and completely corroborate with the evidence of PW.1. The investigation officer in crime No.35/2021 of Bidadi Traffic Police has conducted the investigation in detail and has filed the charge sheet against the drivers of the Lorry bearing No.KA09A7018, Driver of the KSRTC Bus bearing No.KA 09F4916 holding that the accident occurred due to the rash and negligent driving by the drivers of both Lorry and KSRTC Bus. During the cross examination of PW.1 by the respondent 13 MVC No.1261/2021 SCCH-25 No.3, she has admitted that the accident occurred due to the negligence of the Lorry driver. During her cross examination by Respondent No.2 she has admitted that the accident was caused due to the rashness of the driver of the KSRTC bus. Therefore, from the evidence of PW.1 it can be gathered that there was negligence on the part of both KSRTC Driver and the Lorry Driver. However, the court has to bear in mind that the PW.1 is not an eye witness to the accident.
17. The Inquest mahazar produced as per Ex.P.4 and PM report produced as per Ex.P.9 clearly show that 'Death is due to hemorrhage and shock as a result of multiple injuries sustained' and on account of such injuries has succumbed to his death. In support of their defence the respondent No.3 has got examined the Driver of the KSRTC bus as RW.1 and got marked his DL as Ex.R.1. During his cross examination by respondent No.2, he has admitted that the Road is sloping downwards. He has further admitted that even though the said Road is a National High Way it is not very wide. He has 14 MVC No.1261/2021 SCCH-25 denied that he was going very fast and explained that if he was fast there would have been tyre marks on the Road. On an analysis of all the facts which have come before the court during the crossexamination of PW.1 and RW.1 and on perusal of police documents, it is clear that the two vehicles and the deceased were negligent. However, the extent of negligence is different . The major part of the negligence in causing the accident lies with the Driver of the Lorry, who was negligent and rash in changing the lane and hitting the KSRTC bus, to whom this court is assigning 70% of the negligence. The next major part of the negligence lies with the driver of KSRTC Bus, who if was driving slowly, could have controlled the bus. So, this court assigns him 20% of the negligence. The deceased was also negligent in walking beside a National High Way where pedestrian movement is prohibited and this court assigns 10% of the negligence on him. Therefore, I hold that the accident was caused due to the negligence of Drivers of Lorry, KSRT Bus and the 15 MVC No.1261/2021 SCCH-25 deceased. Accordingly, I answer Issue No.2 partly in the Affirmative.
18. Issue No. 3:
PW.1 has specifically spoken before this court that due to the untimely death of the deceased, they have lost the bread earner of their family and her loving husband. She has further deposed that they have spent Rs.1,00,000/ towards conveyance, transportation of dead body and for performing the funeral ceremonies. The Petitioners are entitled for compensation as per the following discussion.
Monthly income
19. According to the Petitioners, the deceased was doing Building Contractor work and earning a sum of Rs.20,000/ per month. The Petitioner to prove the income of the deceased has not produced any documents such as Bank statement, licence etc., nor has she examined any witness. Under such circumstances, this court has to consider the 16 MVC No.1261/2021 SCCH-25 income of the deceased notionally for calculating the compensation.
20. The Hon'ble High Court of Karnataka in MFA No.7404/2014 (MVD), by referring on the decisions of the Hon'ble Supreme Court of India in Meena Pawaria and others Vs. Ashrafali and others (2021 SCC online sc 1083), Jakir Hussein Vs. Sabir (2015) 7 SCC 252, Smt. Neeta and others Vs. Divisional Manager, MSRTC Kolhapur (2015)3 scc 590, Kala Devi and Orthers Vs. Bhagwan Das Chouhan and Others (2015) 2 SCC 771, Sonobanu Nazirbhai Mirza Vs. Ahmadabad Municipal Transport Service (2013) 16 SCC 719, Pushkar Mehra Vs. Brij Mohan Kushwaha and others (2015) 12 SCC 688, Govind Yadav Vs. The New India Insurance Company Limited and another (2011) 10 SCC 683 and Ningamma and another Vs. United India Insurance Company Limited (2009) 13 SCC 710 has held that 17 MVC No.1261/2021 SCCH-25 "there is a continuous and consistent trend by the Apex Court that the Minimum Wages Act provide for a source by which the notional income of the deceased, who had no valid proof of income could be assessed. .......The range of the wages between highly skilled and unskilled labour may have to be considered by the Tribunal while assessing the income of the deceased........However, such guidelines cannot take the place of statutory guidelines and therefore we hold that it would be proper to rely on the wages fixed under the Minimum Wages Act as a guideline and assess whether the deceased was a skilled or unskilled laborer".
21. It is pertinent to note that as per the Karnataka Government Notification of Minimum Wages for employment in Building and other Construction Work with effect from 01.04.2020 to 31.03.2021, the monthly income of a supervisor is Rs.13,253/ per month for Zone I. Therefore the notional income of the petitioner can be rounded off to Rs.13,500/ per month.
18 MVC No.1261/2021
SCCH-25 Age of the deceased
22. In so far as age of the deceased is concerned, the Petitioners have produced true copy of PM report as per Ex.P.9. As per Ex.P.9 the deceased was aged about 58 years. This is a public document and has got presumptive value under law. This shows that as on the date of accident, the age of the deceased was 58 years. Therefore, his age is considered as 58 years.
(i) LOSS OF DEPENDENCY AND FUTURE PROSPECTS: As per the principles of law laid down in the case of Sarla Verma V/s Delhi Transport Corporation, appropriate multiplier applicable to his age is 9. In the instant case, the deceased has a wifepetitioner No.1, aged about 56 years and two major sons - Petitioner Nos.2 & 3, aged about 31 & 28 years respectively. PW.1 in her cross examination admitted that the petitioner Nos.2 & 3 are not working and are at home. But, looking at the age of the petitioner Nos.2 & 3, it 19 MVC No.1261/2021 SCCH-25 cannot be said that they are not working and also can not be considered that they are depending on the income of the deceased. Therefore, petitioner No.1 wife is the sole dependent of the deceased. However if the notional income is applied to the deceased (that of a Building Contractor), he would be earning around Rs.13,500/ per month.
23. As per the decision of Hon'ble Supreme court in National Insurance company Vs Pranay Sethi and others(AIR 2017 S.C 5157) persons aged about above 60 years are not entitled to any future prospects. As mentioned above, since the deceased was under 50 to 60 years age slab, 10% future prospects is to be added to his monthly income. The counsel for the petitioner has also relied on this decision. So Rs.1,350/ (Rs.13,500/ X 10% = Rs.1,350/) should be added to his monthly salary of Rs.13,500/ then it comes to Rs.14,850/ per month. As per the Sarala Verma case, if there is a sole dependent then 1/2 of his income has to be deducted towards his personal and living expenses, balance 20 MVC No.1261/2021 SCCH-25 comes to Rs.7,425/. Therefore, the total loss of dependency would be Rs.8,01,900/ (Rs.7,425/ X 9 x 12) = Rs.8,01,900/).
ii) LOSS OF CONSORTIUM: In Magma General Insurance company Limited Vs. Nanuram (2018) 18 SCC 130, the Hon'ble Apex court has observed "Consortium" is a compendious term, which encompasses spousal consortium, parental consortium and filial consortium. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse".
24. This observation of the Hon'ble Supreme Court is reaffirmed in United Indian Insurance Company Ltd. Vs. Satinder Kaur @ Satvinder Kaur and others, (2021) 11 SCC 780.
21 MVC No.1261/2021
SCCH-25
25. The Petitioner is the wife and as she has lost her husband and companion at the age of 56 years and she has to the live remaining part of her life without him, she is entitled to a sum of Rs.44,000/ under the head of loss of consortium. Similarly, the petitioner Nos.2 & 3 are the sons of the deceased, they have lost their loving, care taking father. Therefore, they are also entitled to Rs.44,000/ each, in total Rs.1,32,000/ is awarded under the head of loss of consortium.
iii) TRANSPORTATION AND FUNERAL EXPENSES: PW.1/Petitioner has stated that she has spent Rs.1,00,000/ towards funeral expenses and obsequies etc.. In this regard the petitioner has not produced any bills pertaining to the above said expenses. However, there are expenses during the death of a person for which documents cannot be maintained. Therefore, in the interest of justice, 22 MVC No.1261/2021 SCCH-25 the Petitioner is awarded a sum of Rs.20,000/ under this head.
iv) LOSS OF ESTATE: As mentioned above, the deceased was earning a sum of Rs.13,500/ per month. Out of this, he was spending 1/2 of his income towards personal expenses. Such being the case, out of this, certainly he would have saved some amount and created estate in favor of the Petitioners. The counsel for the petitioner has relied on the decision of the Hon'ble High Court of Karnataka in MFA No.4021/2018 (MV) between V.Jagadeesh and Muniswamy & Anr., dated 03.08.2022 in which it is observed that since the brother is only representative, even though he is not Dependant, he has to be awarded compensation under Loss of Estate. The counsel for petitioner has also relied on 2020 ACJ 759 : National Ins. Co. Ltd., Vs. Birender and Ors., wherein the Hon'bel Supreme Court of India held that if in the circumstances it is show that the major sons are largely dependent on the income of 23 MVC No.1261/2021 SCCH-25 the deceased then, they shall be considered as Dependants. In the case on hand, there is nothing on record to show that the major sons were Dependant on the income of the deceased. Therefore, the Petitioner is entitled to a sum of Rs.20,000/ under the head of loss of estate. As such, in total, the Petitioner is entitled to a sum of Rs.9,73,900/.
LIABILITY
26. The Respondent Nos.2 to 4 have denied the negligence of their respective vehicles. As already discussed this court has held that the Lorry driver is negligent to the extent of 70%, the KSRTC Driver is negligent to the extent of 20% and the deceased was negligent to the extent of 10%. Therefore, the respondents No.1 & 2 being the owner and insurer of the Lorry are jointly and severally liable to pay 70% of the compensation awarded by the court and the Respondent Nos.3 & 4 being the owner and insurer of the KSRTC bus are liable to pay 20% of the compensation awarded by the court. The petitioners are entitled to 24 MVC No.1261/2021 SCCH-25 compensation of Rs.9,73,900/ out of which 10% shall be deducted due to contributory negligence of the deceased. Further the KSRTC has given Rs.15,000/ as exgratia payment to the petitioners. This is admitted by PW.1 during her cross examination. The same also needs to be deducted. Though the Petitioners have claimed compensation of Rs.20,00,000, Petitioners are entitled only for a sum of Rs.8,61,510/ (Rs.9,73,900/ Rs.1,12,390/ (Rs.97,390/ + Rs.15,000/). If it is rounded off it comes to Rs.8,61,600/ along with interest @ 6% per annum. Therefore, the petition needs to be allowed. Accordingly I answer Issue No.3 in the affirmative.
27. Issue No.4: For the reasons and discussions made above and finding to the above issues, this Tribunal proceeds to pass the following: 25 MVC No.1261/2021 SCCH-25 ORDER The Petition filed by the Petitioner under Section 166 of Motor Vehicles Act is hereby allowed with cost.
The Petitioners are entitled for Compensation of Rs.8,61,600/ (Rupees Eight Lakhs Sixty One Thousand Six Hundred only) along with interest at the rate of 6% p.a., from the date of Petition till the date of deposit of the Award amount from the Respondents.
The respondent Nos.1 & 2 are jointly and severally liable to pay 70% of the total compensation awarded by this court to the petitioners. The respondent Nos.3 & 4 are jointly and severally liable to pay 20% of the total compensation awarded by this court to the petitioners.
26 MVC No.1261/2021
SCCH-25 The Respondent Nos.2 & 4 shall indemnify the Respondent Nos.1 & 3 and deposit the Award amount and interest before this Tribunal within 60 days from the date of this Judgment.
On deposit of the award amount and interest, Rs.3,50,000/ shall be deposited in the name of the Petitioner No.1 in any N/S bank for a period of 3 years. Out of the total compensation Rs.44,000/ each shall be released to the petitioner Nos.2 & 3 and the remaining amount shall be released to the petitioner No.1 by way of epayment with proper identification and due acknowledgment.
The Advocate's fee is fixed at Rs.1000/. Draw Award accordingly.
(Dictated to the stenographer on line, revised, corrected and then pronounced in the open court this the 2nd day of January 2024.) (PRAKRITI KALAYANPUR) XXIII ASCJ & ACMM, Bangalore 27 MVC No.1261/2021 SCCH-25 ANNEXURE List of witnesses examined on behalf of the Petitioner:
P.W.1 Smt. Gulabi List of witnesses examined on behalf of the Respondents:
Ex.R.1 Notarized copy of DL of RW.1 Ex.R.2 Authorization letter Ex.R.3 True copy of Policy (two pages) Ex.R.4 Authorization letter Ex.R.5 Insurance policy copy
List of documents marked on behalf of the Petitioner:
Ex.P1 True copy of FIR Ex.P2 True copy of FIS Ex.P3 True copy of spot and seizure Mahazar Ex.P4 True copy of Inquest Mahazar Ex.P5 True copies of police notices u/Sec.133 of
MV Act dated 03.02.2021 and 04.02.2021 (2 in Nos.) Ex.P6 True copies of reply to police notices u/Sec.133 of MV Act dated 03.02.2021 and 04.02.2021 (2 in Nos.) Ex.P7 True copy of MVA report Ex.P8 True copy of spot sketch Ex.P9 True copy of PM report 28 MVC No.1261/2021 SCCH-25 Ex.P10 True copy of charge sheet Ex.P11 Notarized copy of Voter ID of First petitioner (Compared with original and original is returned) Ex.P12 Notarized copies of Aahdar cards of petitioners 2 and 3 (Compared with originals and originals are returned) List of documents marked on behalf of the Respondents:
RW.1 Mr. Manju K.S.
RW.2 Mr. Himendra Kanthilal Simha M.N.
RW.3 Ms. Ruchitha Renukesh
(PRAKRITI KALYANPUR)
XXIII ASCJ & ACMM,
Bangalore.