Bangalore District Court
Denesh Basavaraju vs Sree Ayyappa Tourist on 16 November, 2024
KABC020028962022
BEFORE THE COURT OF XXIV ADDITIONAL SMALL
CAUSES JUDGE AND THE MOTOR ACCIDENT CLAIMS
TRIBUNAL AND ACJM (SCCH-26) AT BENGALURU
DATED THIS THE 16th DAY OF NOVEMBER 2024
PRESENT: SRI. APPASAB NAIK,
B.A.L.L.B.(Spl)
XXIV ADDL. SCJ & ACJM
BENGALURU.
M.V.C.No.496 OF 2022
PETITIONERS: 1. Sri. Denesh Basavaraju,
S/o. Basavaraju,
Aged about 54 years.
2. Smt.S.Aruna Kumari,
W/o. Denesh Basavaraju,
Aged about 50 years.
3. Smt.Pooja.D,
D/o. Denesh Basavaraju,
Aged about 24 years.
All are residing at No.3959/A,
2nd A Cross B Block,
Near Kodandarama Temple,
Subramanyanagara,
Rajajinagar 2nd stage,
Bangalore North, Sriram Puram,
Bangalore, Bangalore North,
Karnataka - 560 021.
Present residing at 42,
1st Main, 3rd B Cross,
Vidyanagara Dombarahalli,
Lakshmipura Post,
SCCH - 26 2 MVC No.496/2022
Bangalore North,
Bangalore - 562 162.
(By Sri.N.Shivaram - Advocate)
Vs.
RESPONDENTS: 1. Sree Ayyappa Tourist,
Prop N U Srinivas 1st Floor,
Muniyappa Complex,
KIADB Road, Jalahalli Cross,
T. Dasarahalli, Bangalore,
Karnataka - 560 057.
(R.C.Owner of the Mini Bus
bearing No.KA-04-AC-4352).
(Exparte)
2. The Regional Manager,
Reliance General Insurance Co. Ltd.,
Regional Office No.4/3/-1 & 3/2M,
11th Main, 3rd Block, Jayanagar,
Bangalore - 560 061.
(Policy No.RL2109140152
policy period from 16.09.2021
to 15.09.2022)
(By Sri.K.M.Ravi - Advocate)
****
JUDGMENT
This claim petition is filed under the provisions of Sec.166 of M.V Act, 1988 seeking compensation for the death of Smt.Deeksha.D, D/o. Denesh Basavaraju caused in a Road Traffic accident.
SCCH - 26 3 MVC No.496/2022
2. The brief facts of the petitioners case are as under:
It is the case of the petitioners that on 15.12.2021 at about 6.30 pm., when Smt. Deeksha.D (hereinafter referred to as deceased) was riding a Motor cycle along with her sister as pillion rider on Tumkur - Bangalore, NH - 48 Service road on left side of the road by following all the traffic rules when she reached near Bangalore - Tumkur NH - 48 Service road, near Anchepalya NH - 48 service road Nice road cross, at that time, the driver of the Mini Bus bearing reg.No.KA-04- AC-4352 driven the same from back side in a rash and negligent manner and dashed to a Motor cycle from back side. Due to that impact, the deceased fell down and sustained grievous injuries. Immediately after the accident, deceased taken nearby Abhay Vasishta Hospital wherein, doctor declared that she was dead on the way to hospital. PM conducted at Nelamangala Government General Hospital, Nelamangala. Thereafter dead body was handed over to the petitioners, they conducted funeral and obsequies by spending Rs.2 lakhs. Due to the death of the deceased, their family members caused great mental shock SCCH - 26 4 MVC No.496/2022 and her absence put them in difficulty.
3. Prior to the accident, deceased was working as Software Developer Engineer and she was earning monthly Rs.40,000/- per month. The death was caused only due to the negligence of the driver of the first respondent. The Nelamangala Traffic police have registered a criminal case against the driver of the Mini Bus bearing reg.No.KA-04-AC- 4352 in crime No.0456/2021 under Section 279, 338 and 304(A) of IPC. The 1st respondent duly insured with the 2 nd respondent, the policy was valid and was in force at the time of accident. Therefore, both are jointly and severally liable to pay the compensation. Hence, they have prayed to award compensation of Rs.90,00,000/- from the respondents.
4. After service of summons, the respondent No.1 has not appeared before the court and hence, he has been placed exparte.
5. Respondent No.2 has filed his written statement by contending that, the petition is not maintainable either in law or on facts. Respondent No.2 admitted the issuance of policy in favour of the first respondent in respect of Mini Bus bearing reg.No.KA-04-AC-4352 and the policy was in force at SCCH - 26 5 MVC No.496/2022 the time of accident as such, his liability is subject to terms and conditions of the policy. The Respondent No.1 has not complied with Mandatory requirements of Section 134(c) of the Motor Vehicles Act. Police have not complied with mandatory requirements of Section 158(6) of the Motor Vehicles Act. Further he denies the involvement of the Mini Bus bearing reg.No.KA-04-AC-4352 in the alleged accident and the person driving the vehicle has no relation in force as on the date of accident to drive the vehicle. Further contended that, the insured Mini bus used without having valid permit and fitness certificate. The owner of the Mini bus willfully entrusted his vehicle to a person who did not possess valid and effective driving licence to drive the same without possessing valid and effective driving licence. Further respondent No.2 denied the age, income, occupation and nature of accident. With these contentions he has prayed to reject the claim petition.
6. On the basis of the above pleadings, my predecessor in office has framed the following:
ISSUES
1. Whether the petitioners prove that they are the legal representative/heirs of deceased SCCH - 26 6 MVC No.496/2022 Smt. Deeksha D ?
2. Whether the Petitioners' prove that, on 15-
12-2021 at about 06.30 p.m. deceased Deeksha D, proceeding on her motor cycle as a rider along with her sister as a pillion rider on Tumkur Bangalore NH-48 service road and when they reached Anchepalya NH-48 service road Nice road cross, at that time, the Mini Bus bearing No.KA-04-AC-4352 came in a same direction at high speed and in rash and negligent manner and dashed against their motor cycle. As a result, they fell on the ground and sustained grievous injuries but deceased Deeksha D died while on the way to hospital, as mentioned in claim petition?
3.Whether petitioner is entitled for compensation as prayed in the petition? If so, from which respondent?
4. What Order or Award?
7. The Petitioner No.1 has got examined himself as PW.1 and got marked 24 documents as Ex's.P1 to 24. One witness has examined as PW.2 and got marked 4 documents as Ex.P.25 to Ex.P.28. On the other hand, the driver of offending Mini bus has examined as Rw.1 and got marked 2 documents as Ex.R.1 and 2, FDA, RTO Office, Nelamangala has examined as RW.2 ans got marked 2 documents as Ex.R.3 and 4. Legal Manager of respondent No.2 has examined as RW.3 and got marked 2 documents as Ex.R.5 SCCH - 26 7 MVC No.496/2022 and 6 and closed their side evidence.
8. Heard the arguments from both sides. Perused the entire materials placed on record.
9. My answers to the above issues are as follows :-
Issue No.1&2 : In the Affirmative
Issue No.3 : Partly Affirmative
Issue No.4 : As per final order
for the following :
REASONS
10. ISSUE No.1 and 2: PW.1 has produced Aadhar card of himself, petitioner No.2 and 3 and of his deceased daughter at per Ex.P.20 to 23. From these documents it is clear that Petitioners No.1 to 3 are legal heirs. Therefore, petitioner No.1 to 3 are considered as dependent on the income of deceased. Hence, Petitioners No.1 to 3 are entitled for compensation under the head loss of dependency.
11. It is the case of PW.1 that on 15.12.2021 at about 6.30 pm., when Smt. Deeksha.D (hereinafter referred to as deceased) was riding a Motor cycle along with her sister as pillion rider on Tumkur - Bangalore, NH - 48 Service road on left side of the road by following all the traffic rules when she reached near Bangalore - Tumkur NH - 48 Service SCCH - 26 8 MVC No.496/2022 road, near Anchepalya NH - 48 service road Nice road cross, at that time, the driver of the Mini Bus bearing reg.No.KA- 04-AC-4352 driven the same from back side in a rash and negligent manner and dashed to a Motor cycle from back side. Due to that impact, the deceased fell down and sustained grievous injuries. Immediately after the accident, deceased taken nearby Abhay Vasishta Hospital wherein, doctor declared that she was dead on the way to hospital.
12. On the other hand, it is the contention of Respondent No.2 that Mini bus vehicle is not involved in the alleged accident. Therefore, the burden is on the petitioners to prove the actionable negligence on the part of driver of the offending Mini bus. As already stated supra, the Petitioner No.1 has examined himself as PW.1. He has filed affidavit for his chief examination and re-iterated the entire petition averments. He has got marked 24 documents as Ex.P.1 to P.24.
13. From the evidence on record it can be seen that after receipt of complaint at Ex.P.2 lodged by sister of deceased Deeksha.D, the Nelamangala police have registered FIR in Crime No.0456/2021 against the driver of SCCH - 26 9 MVC No.496/2022 Mini bus vehicle bearing Reg.No.KA-04-AC-4352 for the offenses punishable u/s.279, 304-A of IPC. After due investigation the police have filed charge-sheet against the driver of the offending Mini bus vehicle for the offenses punishable u/s.279, 237, 304-A of IPC. Ex.P.3 is the spot panchanama wherein it is described as accident spot at Bangalore - Tumkur NH 48 road, service road. Ex.P.4 is the rough sketch which shows that the accident took place at Bangalore - Tumkur NH-48 road. Ex.P.7 is the inquest panchanama. Ex.P.8 is the post mortem report of the deceased and as per this document, the cause of death is due to severe hemorrhage and shock due to grievous injuries to the vital parts of the body, the head, right abdomen and right hip joint due to RTA. Ex.P.9 is the IMV report which shows that for vehicle - 1: KA-04-AC-4352 found rubbing mark on the front left tyre and for vehicle - 2: KA-02-JC-9376 found scratch mark on the front wheel mudguard. It also shows that the cause of accident was not due to any mechanical defects of above said motor vehicle. Though the learned counsel for the respondent No.2 has cross examined PW.1 but he has failed to elicit anything SCCH - 26 10 MVC No.496/2022 from him to disbelieve his version.
14. Moreover, the driver of the offending vehicle Mini Bus bearing reg.No.KA-04-AC-4352 has examined as RW.1 and through him got marked driving licence at Ex.R.1 and Aadhar card at Ex.R.2. In his chief examination has deposed that ನಾವು ದಿಃ15.12.2021ರಂದು ಮಿನಿ ಬಸ್ ಸಂ.ಕೆಎ-04-ಎಸಿ- 4352 ವಾಹನವನ್ನು ಯಲಹಂಕ ದಿಂದ ನೆಲಮಂಗಲ ಕಡೆಗೆ ಹೋಗುತ್ತಿದ್ದೆ. ನಾನು ಬಲಬದಿಯಲ್ಲಿ ಅತಿ ಜಾಗರೂಕತೆಯಿಂದ ಚಾಲನೆ ಮಾಡಿಕೊಂಡು ಹೆುಾೕಗುವಾಗ ನೈಸ್ರಸ್ತೆ 100 ಮೀ ಹಿಂಭಾಗದಲ್ಲಿ ಎಡಬದಿಯಲ್ಲಿ ಒಂದು ಆಟೋ ವಾಹನ ಬರುತ್ತಿತ್ತು . ನನ್ನ ವಾಹನ ಮತ್ತು ಆಟೋ ವಾಹನದ ಮಧ್ಯದಲ್ಲಿ ಮೆಾೕಟಾರ್ ಸೈಕಲ್ ಸವಾರ ಬಂದನು. ಆ ಸಮಯದಲ್ಲಿ ಆತನು ಆಟೋ ವಾಹನಕ್ಕೆ ಡಿಕ್ಕಿಪಡಿಸಿದ ಶಬ್ಧ ಕೇಳಿ ಬಂತು. ಆಗ ನಾನು ನನ್ನ ವಾಹನ ನಿಲ್ಲಿಸಿ ಬಂದು ನೋಡಿದಾಗ ನನ್ನ ವಾಹನದ ಹಿಂದಿನ ಚಕ್ರದ ಪಕ್ಕದಲ್ಲಿ ಬಿದ್ದಿದ್ದನು. ಆ ಸಮಯದಲ್ಲಿ ಆತನ ಮೆಾೕಟಾರ್ ಸೈಕಲ್ ನನ್ನ ಹಿಂದಿನ ಚಕ್ರಕ್ಕೆ ಸಿಕ್ಕಿತ್ತು . During cross examination he has admitted that, he has not challenged filing of charge sheet against him. FDA of RTO office, Nelamangala has also examined as RW.2, through him got marked authorisation letter at Ex.R.3 and Driving licence of RW.1 at Ex.R.4. During chief examination he has deposed that, driver by name Nandish who was driver of Mini bus had commercial driving licence. Therefore, there is nothing on record to show that the charge-sheet filed by the police is collusive or SCCH - 26 11 MVC No.496/2022 defective and the evidence of PW-1 corroborates with the documents produced by him. There is nothing elicited to disprove the negligence on the part of the driver of the offending vehicle. Moreover, it is settled law that the term "rashness and negligence" has to be construed lightly while deciding a petition for claim of compensation under the MV Act as compared to the word "rashness and negligence" as finds mention in the Indian Penal Code. This is because the chapter in M.V.Act dealing with compensation is a benevolent legislation and not a penal one. Therefore, based on the above discussion, I hold that the actionable negligence on the part of the driver of the Mini bus vehicle bearing Reg.No.KA-04-AC-4352 is proved. As such, I answer issue No.1 and 2 in the Affirmative.
15. ISSUE No.3: As already discussed in Issue No.1, Petitioners are the parents and sister of deceased and they are entitled for compensation.
LOSS OF DEPENDENCY:- PW.1 has produced the notarized copy of Aadhar card of deceased at Ex.P.20. As per this document she was born on 18.05.1995. Therefore, as on the date of accident he was 26 years. As per the SCCH - 26 12 MVC No.496/2022 principles laid down by their Lordships in 2009 ACJ 1298 (Sarla Verma Vs Delhi Transport Corporation), the multiplier applicable to the present case is '17'.
16. According to PW.1 his deceased daughter was working as Software Developer Engineer and she was earning Rs.40,000/- per month. In proof of the same, PW.1 has produced Ex.P.11- Bank statement of the deceased, Ex.P.12 to 15 - 7 Salary pay slip of deceased from June 2021 to December 2021 and sum up of salary pay slip is of Rs.1,90,527/- and average income of the deceased comes to Rs.27,218/- per month (Rs.1,90,527/7 = Rs.27,218/-). Therefore, Rs.27,218/- is considered for calculating the compensation.
17. As per the Hon'ble Apex court reported in a decision reported in (2017) 16 Supreme Court cases 680 (National Insurance company Ltd., Vs Pranay Sethi and others), 40% of income is to be added towards future prospects as she is below 40 years. Therefore, 40% of Rs.27,218/- works out to Rs.10,887/-. Therefore, the total income of the deceased works out to Rs.38,105/- (Rs.27,218/- + Rs.10,887/-). Since the three Petitioners were dependents on SCCH - 26 13 MVC No.496/2022 the deceased and the deceased was bachelorette as such, ½ of total income is to be deducted towards the personal expenses of the deceased. ½ of Rs.38,105/- works-out to Rs.19,053/-. Income for consideration is Rs.19,053/- (Rs.38,105/- (-) Rs.19,053/-). Annual income works out to Rs.2,28,636/- (19,053/- x 12). Appropriate multiplier is "17". Thus loss of dependency works-out to Rs.38,86,812/- (2,28,636 x 17).
18. Further, as laid down by the Hon'ble Apex Court in National Insurance Company Limited Vs. Pranay Sethi and Others, amounts should be enhanced at the rate of 10% in every three years under the following conventional heads. As such, Petitioner No.1 to 3 are entitled to Rs.44,000/- each towards loss of filial consortium, Rs.16,500/- towards loss of estate and Rs.16,500/- towards Funeral expenses.
19. The calculation table stands as follows :-
1 Loss of dependency Rs. 38,86,812=00 2 Loss of filial consortium Rs. 1,32,000=00 to petitioner No.1 to 3 (44,000/- x 3) 3 Loss of estate Rs. 16,500=00 SCCH - 26 14 MVC No.496/2022 4 Funeral expenses Rs. 16,500=00 GRAND TOTAL Rs. 39,63,812=00 Hence, the petitioners are entitled for total compensation of Rs.39,63,812/-.
20. REGARDING INTEREST & LIABILITY:
In accordance with liability, the respondent No.2 has examined its Legal Manager as RW.3 and through her got marked Ex.R.5 - authorisation letter and Ex.R.6 - Insurance policy. During cross examination by the learned counsel for petitioner, she has admitted the validity of insurance policy in respect of Mini bus bearing reg.No.KA- 04-AC-4352. Therefore, the respondent No.1 is the R.C.owner and respondent No.2 is insurer of the offending Mini bus bearing reg.No.KA-04-AC-4352 and it is admitted fact that as on the date of the accident, the offending vehicle was having valid insurance policy. Therefore respondent No.1 and 2 are jointly and severally liable to pay the aforesaid award amount to the petitioners together with interest @ 6% p.a. from the date of claim petition till realization of the entire amount. However, the primary liability is on the respondent No.2 to pay the award amount SCCH - 26 15 MVC No.496/2022 together with interest within one month from the date of this order. Accordingly, I answer issue No.3 'Partly in the affirmative'.
21. ISSUE NO.4: In view of the discussion made supra, this Tribunal proceeds to pass the following :
-: ORDER :-
The petition filed under Section 166 of M.V Act 1988, is hereby partly allowed with costs in the following terms :
The petitioners are entitled for
compensation of Rs.39,63,812/- (Rupees
thirty nine lakhs sixty three thousand eight hundred and twelve only) with interest at the rate of 6% p.a. from the date of petition till its realization.
The respondent No.1 & 2 are jointly and severally liable to pay compensation to the petitioners. However, the respondent No.2 being insurer of offending Mini bus vehicle is directed to deposit the compensation amount in this tribunal within one month from the date of this order.
On deposit of the award amount together with interest, the claimants are entitled for the compensation amount by way of apportionment as follows :
SCCH - 26 16 MVC No.496/2022
Petitioner No.1 - 40%
Petitioner No.2 - 50%
Petitioner No.3 - 10%
Out of the share amount of Petitioner No.1 and 2, a sum equal to 25% shall be deposited in their name in any Nationalized or Scheduled Bank of their choice for a period of 3 years and the remaining 75% shall be released to them on verification. However the said Petitioner No.1 and 2 are at liberty to withdraw the periodical interest accrued on their deposit amount from time to time.
Entire compensation amount shall be released to Petitioner No.3 on verification.
Advocate fee is fixed at Rs.1,000/- Draw an award accordingly.
(Dictated to the stenographer, directly over computer, typed by her, corrected by me and then pronounced in the open Court on this day 16th November 2024) (APPASAB NAIK) XXIV Addl. Small Causes Judge & A.C.J.M. Bangalore.
ANNEXURE I. LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONERS:
PW.1 : Denesh Basavaraju
PW.2 : Hitesh Kangtani
SCCH - 26 17 MVC No.496/2022
II. LIST OF DOCUMENTS MARKED ON BEHALF OF THE
PETITIONERS:
Ex.P.1 : True copy of FIR
Ex.P.2 : True copy of complaint
Ex.P.3 : True copy of spot panchanama
Ex.P.4 : True copy of rough sketch
Ex.P.5 : True copy of notice given u/s 133 of IMV
Act
Ex.P.6 : True copy of reply
Ex.P.7 : True copy of inquest panchanama
Ex.P.8 : True copy of post mortem report
Ex.P.9 : True copy of motor vehicles accident report
Ex.P.10 : True copy of charge sheet
Ex.P.11 : Bank statement of the deceased
Ex.P.12-18: 7 salary slips from June 2021 to December
2021
Ex.P.19 : Notarised copy of DL of deceased
Ex.P.20-23: Notarised copy of Aadhar card
Ex.P.24 : Certificate u/s 65B of IE Act pertaining to
Ex.P.12 to Ex.P.18
Ex.P.25 : Offer letter
Ex.P.26 : 2 pay slips
Ex.P.27 : Experience certificate
Ex.P.28 : Full and final settlement
III. LIST OF WITNESSES EXAMINED ON BEHALF OF THE RESPONDENTS:
RW.1 : Nandeesh
RW.2 : U. Manjunath
SCCH - 26 18 MVC No.496/2022
RW.3 : Thrishi Subbaiah
IV. LIST OF DOCUMENTS MARKED ON BEHALF OF THE
RESPONDENTS:
Ex.R.1 : Driving licence
Ex.R.2 : Aadhar card
Ex.R.3 : Authorisation letter
Ex.R.4 : Driving licence
Ex.R.5 : Authorisation letter
Ex.R.6 : Insurance policy
(APPASAB NAIK)
XXIV Addl. Small Causes Judge
& A.C.J.M. Bangalore.
Digitally signed
by APPASAB
APPASAB RAMAPPA
NAIK
RAMAPPA Date:
NAIK 2024.11.23
13:52:12
+0530