Bangalore District Court
Smt.Uma Nagaraj vs United India Insurance on 7 March, 2022
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
Court of Small Causes, Bangalore,
DATED THIS THE 07th DAY OF MARCH 2022
PRESENT: SRI.SANTOSH SIDDAPPA PALLEDH
B.A. LL.B (Spl.)
VII Addl. SCJ and ACMM,
Member, MACT3, Bengaluru.
M.V.C. No.1155/2018
Petitioner: Smt.Uma Nagaraj,
W/o B.S.Nagaraj,
D/o Jayashankar Rao @
Jayashankar,
Age about: 60 years,
R/at: No.785,
17th 'C' Cross, 37th Main,
J.P. Nagara, VI Phase,
Bangalore - 560 078.
(By Smt.S.K.Nagarathna and
Smt.B.G.Tejaswini, Advocates)
Vs
Respondents : 01. United India Insurance
Com. Ltd.,
R.O. Krishi Bhavan, 6th Floor,
Nrupathunga Road,
Near Hudson Circle,
Bangalore - 07.
Policy issued by Office at BO.3,
No.143/144, 1st Floor,
CKN Chambers, 1st Main Road,
(SCCH3) 2 MVC 1155/18
Sheshadripuram,
Bangalore - 560 020.
Policy No.09060531150160067691
Date of Validity 23092016 to
22092017
Car bearing No.KA05AG1643
(By Smt.Padma S. Uttur, Advocate)
02. Mr.Mitesh Surana,
S/o Suresh Kumar Surana,
Major,
R/at No.09, 3rd Floor,
Ganapathi Nagar,
Hosakerehalli Road,
Byatarayanapura,
Bangalore - 560 026.
(By Smt.Nidhi Kejriwal, Advocate)
********
JUDGMENT
This petition is brought U/Sec 166 of the Motor Vehicles Act, 1988 for the compensation to the death of one Sri.Jayashankar Rao @ Jayashankar S/o late Badraiah, who died in the accident caused on 27062017.
02. The brief facts are as under: It is the case of the petitioner that she is the daughter of one Jayashankar Rao @ Jayashankar, who (SCCH3) 3 MVC 1155/18 on 27062017 at about 9.45 to 10.00 a.m. was crossing the road at the junction near South End 'F' Cross and 7th Main Road junction, JP Nagar 3rd Stage, at that time the driver of Car bearing reg. No. KA05AG1643 came with high speed, in rash and negligent manner and dashed against the said Jayashankar Rao. As a result he fell down and suffered severe injuries and was shifted to NIMHANS hospital, and after first aid he was shifted to Ambika hospital. However he succumbed to the injuries on 01072017. Thereafter the post mortem was conducted at KIMS hospital. The petitioner has performed last rituals by incurring Rs.50,00000 and Rs.1,00,00000 towards treatment.
03. According to the petitioner, the deceased was hale and healthy prior to accident and was working as Consultant of designing and earning Rs.20,00000 per month. Unfortunately the petitioner has lost her beloved loving father. As such she claimed Rs.8,00,00000 (Eight lakhs only) as compensation against the respondents.
04. In response to the notice issued, the respondent No.1 appeared through Smt.PSU Advocate and the respondent No.2 appeared through Smt.NK Advocate.
(SCCH3) 4 MVC 1155/1805. The respondent No.1 has filed written statement denying the case of the petitioner and contended that their liability is subject to terms and conditions of the policy. The accident took place due to negligence of deceased himself who was crossing the road where there is no zebra cross. The Car driver was not possessing valid license, there is no fitness certificate and permit to the vehicle, as such there is breach of policy conditions. The age, avocation, income and expenses details of the deceased furnished by the petitioner are all denied as false and as such sought to dismiss the case against them.
06. The respondent No.2 has filed written statement contending that false case is registered in collusion with the Police and their vehicle is duly insured with respondent No.1, there was no valid license for the driver, the compensation claimed is exorbitant. Deceased was a retired person aged more than 80 years and petitioner is married daughter staying with her husband, as such she is not the dependent on the deceased and thereby sought to dismiss the case against them.
07. Based on the aforesaid pleadings, the following Issues have been framed by my learned predecessor: (SCCH3) 5 MVC 1155/18 ISSUES
1. Whether the petitioner proves that she is the LR/dependant of deceased Sri.Jayashankar Rao @ Jayashankar?
2. Whether the petitioner prove that deceased Sri.Jayashankar Rao @ Jayashankar was died in RTA arising out of the accident alleged to have been taken place on 27062017 at about 9.45 a.m., on South End 'F' Cross, 7 th Main Road Junction, J.P. Nagar, II Stage, Bengaluru, due to the rash and negligent driving of the driver of Car bearing reg. No.KA05AG1643 as alleged in the petition?
3. Whether the petitioner is entitled for compensation? If so, what amount & from whom?
4. What order or award?
08. In support of petition contents, petitioner examined herself as P.W.1 and produced Ex.P.1 to Ex.P.16 and Ex.P.22 to Ex.P.27 documents and also examined Medical Record Technician as P.W.2 and through them Ex.P.17 to Ex.P.21 documents are marked. On the other hand respondent No.1 examined its Company Official as R.W.1 and through them got produced Ex.R.1 to Ex.R.4 documents. The respondent No.2 examined himself as R.W.2, but no document is produced.
(SCCH3) 6 MVC 1155/1809. Heard the arguments from both sides.
10. My findings on the aforesaid Issues are as under: Issue No.1 In the Affirmative Issue No.2 Partly in the Affirmative Issue No.3 Partly in the Affirmative Issue No.4 As per final order for the following:
REASONS
11. Issue No.1: The daughter of the deceased Jayashankar Rao has filed this petition. The respondents have contended that she is not the dependent and not related to the deceased. In this regard she has given evidence of herself as P.W.1 and has produced Ex.P.22 to Ex.P.27 documents such as original Passport, Test reports, original Pension book, Death summary pertaining to deceased, Khatha extract and Gtree issued by Revenue Officer. From these documents it is established that she is the daughter of the deceased and to contradict these documents there is no sufficient material elicited in the crossexamination of P.W.1. However, on the point of dependency is concerned, P.W.1 admits that she is married and residing separately in her husband's (SCCH3) 7 MVC 1155/18 house and deceased was residing separately. So, this fact clarifies that she was not depending on the deceased entirely. But the deceased being father, a daughter depends for many other reasons. Now, she being the only heir left, she is entitled for loss of estate and for that purpose she can be considered as legal representative as per the judgment of Hon'ble Supreme Court in Gujarat State Road Transport Corporation Vs Ramanbhai Prabhatbhai reported in 1987 ACJ 561 (SC), wherein it is held that "every legal representative who suffers on account of the death of a person due to motor vehicle accident should have a remedy to realize compensation under Section 110(A) of the M.V. Act". Hence, I answered Issue No.1 in the Affirmative.
12. Issue No.2: In this case the petitioner claimed that deceased Jayashankar Rao @ Jayashankar died due to the injuries caused by the driver of Car bearing reg. No.KA05AG1643. To prove the said facts, the petitioner has given her evidence as P.W.1 and reiterated petition averments in her chiefexamination filed by way of affidavit. She has produced Ex.P.1 to Ex.P.16 documents such as FIR, Complaint, spot Mahazar, spot Sketch, seizer Mahazar, MLC intimation, Requisition, Charge sheet, (SCCH3) 8 MVC 1155/18 Post mortem report, Inquest report, IMV report, 133 Notice, Reply to 133 Notice, Prescriptions, Medical bills and Discharge bill.
13. In the crossexamination of P.W.1 it is suggested that deceased himself is negligent as he tried to cross the road where there is no zebra cross. Though P.W.1 admitted that there is no zebra cross, but she denied that her father was negligent for causing this accident.
14. The petitioners have examined Medical Record Technician of Sai Ambika hospital as P.W.2 and through them to produced documents such as Authorization letter, MLC extract, Admission register, Police intimation and Discharge bill at Ex.P.17 to Ex.P.21.
15. In counter to the evidence of petitioner, the respondent No.1 has examined its Company Official as R.W.1 and through them got produced documents such as Authorization letter, copy of Policy, copy of 133 Notice and Reply to 133 Notice at Ex.R.1 to Ex.R.4. However, their evidence is based on record and as there is no involvement of other vehicle, the negligence aspect stands proved as alleged. The respondent No.2 has also gave his evidence by taking the written statement contentions as R.W.2. In the crossexamination he has stated that he had seen (SCCH3) 9 MVC 1155/18 photo copy of driving license of driver, but has not produced the same. Though he undertook to produce the same, but it was not produced. He admits that there is Charge sheet filed U/Sec 3 of M.V. Act. Even he admits that in the Reply to 133 Notice witness admitted that there was no license to the driver and he has signed it. But in view of the Judgment of Hon'ble High Court of Karnataka in MFA No.3004/2019 between Managing Director KSRTC Hassan Vs Andrew Lucas and others decided on 09012020, wherein the Division Bench has held that the contributory negligence has to be considered in case of pedestrian crossing the road where there is no zebra cross. As the said Judgment is the latest Judgment, it can be followed.
16. Hence, I am of the opinion that the deceased is also negligent for this accident. As such I answered Issue No.1 partly in the affirmative.
17. Issue No.3: According to the petitioner deceased was retired PWD Engineer and after retirement he was working as Consultant of designing in a private company and earning Rs.20,00000 per month. But they have not produced any piece of documents in this regard. P.W.1 in her cross examination has admitted that her father is retired (SCCH3) 10 MVC 1155/18 PWD Engineer. In this regard she has produced original Pension book of deceased at Ex.P.24 which shows that he was getting pension of Rs.1,100 + 198 and Rs.550 + 99 in the year June 1994. But petitioner has not produced recent Pension book of deceased till his death and also not produced Bank statement to prove his actual pension or income. In the absence of such proof, the notional income has to be considered. Looking to the age of the deceased and occupation as Engineer, I deem it fit to consider his income at Rs.10,00000 p.m., so, considering the fact that deceased has left only one dependent, it is a case where the dependency has to be decided as per the Judgment of Hon'ble High Court of Karnataka in A.Manavalagan case Vs A.Krishnamurthy Manavalagan case reported in ILR 2004 KAR 3268 wherein the Hon'ble High Court of Karnataka has held that: Note: The above three illustrations relate to cases where the claimants are dependants. The said illustration demonstrate that even though the income of the deceased and age of the deceased are the same, the 'loss of dependency' will vary, having regard to the number of dependants, age of the dependants and nature of dependency. The ensuing illustrations relate to cases where the legal heirs of the deceased are not dependants.
(SCCH3) 11 MVC 1155/18(iv) If the deceased is survived by an educated employed wife earning an amount almost equal to that of her husband and if each was maintaining a separate establishment, the question of 'loss of dependency' may not arise. Each will be spending from his/her earning towards his living and personal expenses. Even if both pool their income and spend from the common income pool, the position will be the same. In such a case the amount spent for personal and living expenses by each spouse from his/her income will be comparatively higher, that is three fourth of his/her income. Each would be saving only the balance, that is one fourth (which may be pooled or maintained separately). If the saving is taken as onefourth (that is 25%), the loss to the estate would be Rs. 2250/ per month or Rs. 27000/ per annum, By adopting the multiplier of 14, the loss to estate will be Rs. 3,78,000/.
Note: The position would be different if the husband and wife, were both earning, and living together under a common roof, sharing the expenses. As stated in BURGESS v. FLORENCE NIGHTINGALE HOSPITAL (1955(1) Q.B. 349), 'when a husband and wife, with separate incomes are living together and sharing their expenses, and in consequence of that fact, their joint living expenses are less than twice the expenses of each one living separately, then each, by the fact of sharing, is conferring a benefit on the other'. This results in a higher savings, say, onethird of the income; In addition each spouse loses the benefit of services rendered by the other in managing the household, which can be (SCCH3) 12 MVC 1155/18 evaluated at say Rs. 1,000/ per month or Rs. 12,000/ per annum). In such a situation, the claimant (surviving spouse) will be entitled to compensation both under the head of loss of dependency (for loss of services rendered in managing the household) and loss to estate (savings to an extent of onethird of the income that is Rs. 3,000/ per month or Rs. 36000/ per annum). Therefore, the loss of dependency would be 12000x14=168,000/ and loss to estate would be 36000x14=504,000/. In all Rs. 6,72,000/ will be the compensation.
(v) If the deceased was a bachelor and the claimants are two nondependent brothers/sisters aged 47 years and 45 years with independent income, the position would be different. As the deceased did not have a 'family', the tendency would be to spend more on oneself and the savings would be hardly 15%. If the saving is taken as 15% (Rs. 1350/ per month), the annual savings would be Rs. 16,200/ which would be the multiplicand. The multiplier will be 13 with reference to the age of the claimants and the loss of estate would be Rs. 2,10,600/ per annum.
Though the quantum of savings will vary from person to person, there is a need to standardize the quantum of savings for determining the loss to estate (where the claimants are not dependants) in the absence of specific evidence to the contrary. The quantum of savings can be taken as onethird of the income of the deceased where the spouses are having a common establishment and onefourth where the spouses are having independent establishments.
(SCCH3) 13 MVC 1155/18The above will apply where the family consists of non dependant spouse/children/parents. Where the claimants are nondependant brothers/sisters claiming on behalf of the estate, the savings can be taken as 15 % of the income. The above percentages, one of course, subject to any specific evidence to the contrary led by the claimants.".
18. Since the deceased has left behind only one daughter that too married daughter, in my opinion the savings can be considered at 15% i.e., Rs.1,50000 as per the Judgment cited supra.
19. In this case the age of the deceased is claimed as 88 years as on the date of accident and for proving the same P.W.1 has produced original Passport of the deceased at Ex.P.22 wherein his date of birth is mentioned as 22061929. The date of accident is 27062017. So, as on the date of accident deceased would be aged about 88 years and the same is considered for calculating compensation and hence, as per Sarla Varma case reported in 2009 ACJ 1298 the multiplier applicable is "5" and the same is considered. Therefore, the petitioner is entitled for loss of estate as under;
Rs.1,500 x 12 x 5 = Rs.90,00000 (Ninety thousand only).
20. Since it is settled law in National Insurance Co. Ltd., Vs Pranay Sethi and others case in (2017) (SCCH3) 14 MVC 1155/18 16 SCC 680 case that the claimant would be entitled for funeral expenses to the extent of Rs.15,00000 (Fifteen thousand only), as such I award the same.
21. The petitioner has produced Medical bills at Ex.P.15 which contains 13 in Nos., true copy of Discharge bill issued by Sai Ambika hospital at Ex.P.16 and the same is produced through P.W.2 at Ex.P.21, which are supported by 3 Prescriptions at Ex.P.14. On perusal of medical bills at Ex.P.15, in which two receipts are advance amount for Rs.10,00000 each and the total comes to Rs.23,33300 excluding said advance amount. Ex.P.16 and Ex.P.21 are Discharge bill for Rs.64,20000, in which discount given for Rs.3,00000 and petitioner has paid only Rs.40,00000, but including discount balance amount of Rs.24,20000 is whether paid by the petitioner or not, she has not produced any receipts, hence the said amount has to be deducted. Therefore, after deducting the said amount of Rs.24,20000, the petitioner is entitled for Rs.63,33300 (Sixty six thousand three hundred thirty three only) towards medical expenses.
22. Hence, the petitioner is entitled for total compensation of Rs.1,71,40000 (One lakh seventy one thousand four hundred only) as under: (SCCH3) 15 MVC 1155/18
1.Loss of Estate Rs.90,00000
2.Funeral expenses 15,00000
3.Medical expenses 66,33300 Total Rs.1,71,33300 rounded off to Rs.1,71,40000
23. Regarding liability: The counsel for Respondent has argued saying that there is no driving license for insured vehicle driver and hence it is breach of policy condition as such the Insurance company has to be exonerated and placed reliance on Judgment of Hon'ble High court of Karnataka in MFA 100226/2016 and the Judgment of Hon'ble Supreme court in Belli Ram Vs Rajinder Kumar. In counter the counsel for petitioner argued contending that the principal of pay and recovery can be followed and relied on Judgment of Hon'ble Supreme Court in (2018) 3 SCC 208 Pappu and others Vs Vinod Kumar Lamba. I have gone through the Judgments relied by both sides. It is true that the respondent has established that there is no license to the driver of offending vehicle. Even it is not replied by owner when the Insurance Company issued notice U/Order 11 Rule 14 of CPC. So, it can be inferred that there is no license. On the point of whether Insurance Company (SCCH3) 16 MVC 1155/18 can be exonerated, the Judgment relied by counsel in the case of Smt.Padma and others Vs Authorized signatory, Sriram General Insurance Co. Ltd., in MFA 100226/2016 of Hon'ble Division Bench of High Court of Karnataka, it is true that the Hon'ble High Court has laid down that, as per the Belli Ram case the Insurance Company is exonerated in the absence of license which amounts to fundamental breach of policy conditions. However, it is pertinent to note that the Judgment in Belli Ram case of Hon'ble Supreme Court of India is decided in a claim filed under the provisions of Employees Compensation Act and the Hon'ble Supreme Court at para 16 page 12 their lordships observed as under:
"We are conscious of the fact that in the present case the beneficiary is the driver himself who was negligent but then we are not dealing with a claim under the MV Act but under the Compensation Act, which provides for immediate succor, not really based on a fault theory with a limited compensation as specified being paid. We are, thus, in the present proceedings not required to decide the share of the burden between the appellant (SCCH3) 17 MVC 1155/18 as the owner and the first respondent as the driver as may happen in a proceedings under the MV Act ".
In para 21 with reference to Swaran Singh case their lordships observed as under:
"The learned Judge debated the question of the consequences of the MV Act being a beneficial piece of legislation. Thus, is two interpretations were possible, it was opined that the one which is in favour of the claimants should be given, but violence should not be done to the clear and plain language of the stature. Thus, while protecting the rights of the claimants by asking the insurance company to deposit the amount, the recovery of the same from the insured would follow as the sympathy can only be for the victim of the accident. The right which has to be protected is of the victim and not the owner of the vehicle".
In Para 23 their lordships observed as under:
"The only thing we note is that fortunately there has been no accident with a (SCCH3) 18 MVC 1155/18 third party claimant but the person who has caused the sufferance and sufferer are one and the same person, i.e., the first respondent driver. We are, however, dealing with the determination under the Compensation Act and those provisions are for the benefit of the workmen like the first respondent, even though he may be at fault, by determining a small amount payable to provide succor at the relevant stage when the larger issues could be debated in other proceedings".
From going through the above said observations it is clear that the Apex Court has discussed with reference to absolving the liability of the Insurance Company in reference to the contractual obligations under the Workmen's Compensation Act but not with reference to beneficial legislation under the Motor vehicles act.
24. The learned Advocate for petitioner on this point relied on the judgment of Apex Court reported in (2018) 3 Supreme Court Cases 208 (Pappu and others Vs. Vinod Kumar lamba and another) wherein it is held that:
(SCCH3) 19 MVC 1155/18"15 Liability of insurer Defence that driver did not have valid licence Has to be established on facts of case Award directing insurer to pay compensation to claimant with liberty to recover it from insured/driver by establishing its case - Proper ".
25. Same point is considered in the Full Bench Judgment of Hon'ble High Court of Karnataka reported in 2020(2) KCCR 1405 (New India Assurance Company Ltd Vs. Yallavva and another). In para No.34 of the said Judgment their Lordship considered if there is a breach of condition with reference to non holding the driving license by the driver as under:
"Even after providing breach of a
policy condition regarding a valid
licence by the driver or his qualification
to drive during the relevant period on the
part of the insured, the insurer would not not be allowed to avoid his liability towards the insured unless the said reach or breaches is/are so "fundamental" as found to have contributed to the cause of the accident". Ultimately, held as under:
(SCCH3) 20 MVC 1155/18 " i) The Insurer is liable to pay the
third party and recover from the
insured even if there is breach of any
condition recognized under Section 149(2), even if it is a fundamental breach ( that is breach of condition which is the cause for the accident) and the insurer proves the said breach, in view of the mandate under Section 149(1) of the Act.
But no such order can be passed against
the insurer, if, on the facts and
circumstances of a case, a finding is
given by the Court that the third party (injured or deceased) had played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves".
26. So, in my opinion by following the dictum discussed above the Insurance Company in this case has to pay the award amount and then recover it from owner.
27. However, as held on Issue No.2 the deceased has also contributed for the accident when he has crossed the road where there is no zebra cross, as such the Judgment referred above in MFA (SCCH3) 21 MVC 1155/18 No.3004/2009 between Managing Director, KSRTC, Hassan Vs Andrew Lucas, the contribution can be considered at 20% as per the referred Judgment. Therefore, the respondent Nos.1 and 2 are jointly and severally liable to pay the compensation at 80% and 20% to be borne by the petitioner. Hence, Issue No.3 is answered partly in the Affirmative.
28. Issue No.4: In view of my findings on Issue Nos.1 to 3 as above and with regard to awarding the interest is concerned, the petitioner is entitled for simple interest at the rate of 6% per annum from the date of petition till deposit. As such I proceed to pass the following: ORDER The claim petition filed by the petitioner U/Sec 166 of the M.V. Act is hereby allowed in part, with costs.
Petitioner is entitled for Rs.1,37,12000 (One lakh thirty seven thousand one hundred twenty only) (80% of Rs.1,71,40000) as compensation with interest at 6% p.a. from the date of petition till the date of deposit. The petitioner shall borne 20% on her own.
(SCCH3) 22 MVC 1155/18Respondent No.2 is liable to pay the compensation to the petitioner. However, in view of valid insurance policy, respondent No.1 Insurance Company is directed to pay the total awarded amount and shall deposit the same within time stipulated under section 168(3) of M.V. Act and thereafter recover it from respondent No.2.
On deposit of the compensation amount together with interest, entire amount shall be released to the petitioner through Epayment on proper identification without any further proceedings.
Advocate fee is fixed at Rs.1,00000.
Draw award accordingly.
(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in open court, on this the 07 th day of March 2022).
(SANTOSH SIDDAPPA PALLEDH) VII Addl. Judge and ACMM, Bengaluru.
ANNEXURE List of witnesses examined for the petitioner:
P.W.1 Uma Nagaraj
P.W.2 Punya Murthy.C.P
(SCCH3) 23 MVC 1155/18
List of documents marked on behalf of the
petitioner:
Ex.P.1 FIR
Ex.P.2 Complaint
Ex.P.3 spot Mahazar
Ex.P.4 spot Sketch
Ex.P.5 seizer Mahazar
Ex.P.6 Copy of MLC intimation
Ex.P.7 Requisition by Jayanagar Police
Ex.P.8 Charge sheet
Ex.P.9 Post mortem report
Ex.P.10 Inquest report
Ex.P.11 IMV report
Ex.P.12 133 Notice
Ex.P.13 Reply to 133 Notice
Ex.P.14 Prescriptions (03 in Nos.) Ex.P.15 Medical bills (13 in Nos.) Ex.P.16 True copy of Discharge bill issued by Sai Ambika hospital Ex.P.17 Authorization letter Ex.P.18 Copy of MLC extract Ex.P.19 Copy of Admission register Ex.P.20 Copy of Police intimation Ex.P.21 Discharge bill Ex.P.22 original Passport of deceased Jayashankar Ex.P.23 Test reports of sugar level of deceased (13 in Nos.) Ex.P.24 original Pension book of deceased Ex.P.25 Death summary issued by Sai Ambika hospital Ex.P.26 Khatha extract Ex.P.27 Gtree issued by Revenue Officer List of witnesses examined for the Respondents:
R.W.1 Savitha Prasad
R.W.2 Mitesh Surana
(SCCH3) 24 MVC 1155/18
List of documents marked on behalf of the
Respondents:
Ex.R.1 Authorization letter
Ex.R.2 Copy of Policy
Ex.R.3 Copy of 133 Notice
Ex.R.4 Reply to 133 Notice
(SANTOSH SIDDAPPA PALLEDH)
VII Addl. Judge and ACMM,
Bengaluru.