Bangalore District Court
Haseena Bee @ vs The Managing Director on 27 March, 2018
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS
TRIBUNAL, BENGALURU CITY.
SCCH-14
Dated this the 27th DAY OF MARCH 2018
PRESENT: Sri.S.R.PARADESHI.,
B.Com., LL.B.,(Spl.)
Member, MACT,
XVI ADDL. JUDGE,
Court of Small Causes,
BENGALURU.
MVC No.3214/2017
Petitioner/s : 1. Haseena Bee @
Haseena Begum,
W/o Late Dastagiri Sab,
Aged about 38 years.
2. Guda Sab,
S/o Late Dastagiri Sab,
Aged about 17 years,
3. Thopik,
S/o Late Dastagiri Sab,
Aged about 02 years,
4. Thohid,
S/o Late Dastagiri Sab,
Aged about 09 months.
Since petitioners No.2 to 4
are minors,
Rep. by their mother and
natural guardian Haseena
SCCH-14 2 MVC No.3214/2017
Bee @ Haseena Begum,
5. Rajamma,
W/o Late Guda Sab,
Aged about 80 years,
All are residing at Turvihal,
Sindhnur Taluk,
Raichur District.
(Pleader by Sri. SGA)
- V/s -
Respondent The Managing Director,
B.M.T.C. Depot,
Bengaluru Central Office,
K.H.Road, Shanthinagar,
Bengaluru - 560 027.
(R.C.Owner of BMTC Bus
bearing Reg.No.KA-01-FA-
1430)
(Pleader by Sri.KMS)
*******
JUDGMENT
The petitioners have filed this claim petition under Sec.166 of Motor Vehicles Act for recovery of compensation to the extent of Rs.30,00,000/- due to the death of Sri. Dastagiri Sab in a road traffic accident.
2. Brief averments of the petition are as under:
SCCH-14 3 MVC No.3214/2017According to the petitioner, the petitioner No.1 is wife, petitioner No.2 to 4 are the minor children and petitioner No.5 is the mother of deceased Dastagiri Sab. On 17-05-2016 at about 7.10 p.m., the deceased was pedestrian on the extreme left side on outer ring road main road, by observing the vehicular movements deceased was crossing the said road, near Marathahalli Bridge Under Pass, Bengaluru, at that time suddenly the driver of the BMTC bus bearing Reg.No.KA-01-FA-1430 came from Tin Factory side towards Silk Board in a rash and negligent manner and dashed against the deceased and caused the accident, due to which, the deceased fell down and sustained grievous injuries all over the body.
It is further submitted that, immediately after the accident, deceased was shifted to VIMS Hospital but on the way to the hospital the deceased was succumbed to the injuries and thereafter post mortem was conducted at Bowring and Lady Curzon Hospital and handed over the dead body to the petitioners and dead body was shifted to their residence by hiring the vehicle and performed funeral and obsequious ceremonies petitioners have spent more than Rs.2,00,000/-.
It is further submitted that, prior to the date of accident, the deceased was hale healthy and deceased SCCH-14 4 MVC No.3214/2017 was aged about 50 years and he was working as a Mason and earning a sum of Rs.20,000/- per month, from the said earning the deceased was maintaining his family members and deceased was the only earning member in their family. Due to untimely death of the deceased the petitioners life has become dark miserable and depressed and put to great financial hardship and petitioners are undergoing deep mental shock, pain and sufferings.
It is further submitted that, the petitioner No.1 being the wife of the deceased has lost love and care taker husband, Petitioner No.2 to 4 being the minor children of the deceased has lost love and affectionate and care taker father and petitioner No.5 being the widow mother of the deceased has lost and affectionate and care taker son.
The petitioners further submitted that, after the accident Airport traffic police have registered the case against the driver of offending BMTC Bus for the offences punishable U/s.279, 304(A) of IPC. The respondent is the insurer and owner of the offending bus liable to pay compensation. Hence, on the other grounds, they have prayed for awarding compensation with cost and interest.SCCH-14 5 MVC No.3214/2017
3. After service of summons, the respondent company appeared through his counsel and filed his written statement inter-alia contending that, the petition is misconceived and not maintainable either in law or on facts. It is further submitted that, the BMTC bus bearing Reg. No.KA-01-FA-1430 was in its schedule trip from Tin Factory to Banashankari and when the Bus proceeding at Marathahalli Bridge in Outer Ring road slowly, cautiously with observing all the traffic rules. The deceased all of sudden rushed without observing the bus to cross the road from right to left over the Bridge where there is no Zebra crossing that too on the Bridge at night Hour and caused the Accident. In the process the deceased exposed himself to that angle and caused the accident. If the deceased had not tried to cross the road where there is Zebra Crossing that too on the Bridge the alleged accident could have been avoided, under these circumstances, the respondent is not all responsible for the accident. He has denied the age, occupation and income of the deceased. The compensation claimed by the petitioners is exorbitant and excessive. Hence, on the other grounds, the respondent has prayed for dismissal of the claim petition.
SCCH-14 6 MVC No.3214/20174. On the basis of above pleadings, the following issues were framed:
ISSUES
1. Whether the petitioners prove that, they are the legal representative of the deceased?
2. Whether the petitioners prove that Dastagiri Sab S/o Gude Sab died due to injuries sustained by him in an accident occurred on 17-05-
2017 at about 7.10 p.m., on outer ring road, main road, near Marathahalli Bridge under pass, arising due to rash and negligent driving of driver of BMTC bus bearing No.KA-01-FA-1430?
3. Whether the petitioners are entitled for compensation?
If so, how much?
4. What Order or award?
5. The petitioner No.1, wife of the deceased examined himself as PW.1 and got marked documents at Ex.P.1 to Ex.P.16. On the other hand, respondent company examined its Driver as RW.1 and no documents marked on his behalf.
SCCH-14 7 MVC No.3214/20176. Heard the arguments and perused the records.
7. My findings on the above 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
8. Issue No.1:- In this case, the petitioner No.1 is
wife, the petitioner No.2 to 4 are the children and petitioner No.5 is mother of the deceased Dastagiri Sab. In order to prove that they are legal heirs of the deceased, the PW1 has produced the copy Aadhaar card of petitioner No.1 which is marked as Ex.P.13, copy of school certificate of petitioner No.2 which is marked as Ex.P.9, copy of birth certificate of Petitioners No.3 and 4 which is marked as EX.P.10 and Ex.P.11 and copy of Aadhar card of the petitioners No.2 and 3 which are marked as Ex.P.13 and Ex.P.14 and copy of the Aadhaar card of the petitioner No.5 which is marked as Ex.P.16 wherein all these documents, it is mentioned that, the petitioner No.1 is wife of the deceased and petitioner No.2 to 4 are the children of the deceased and petitioner No.5 SCCH-14 8 MVC No.3214/2017 is the mother of the deceased. In the cross examination of PW.1, it is not disputed about the relationship between the petitioners and deceased. Hence, considering the facts and circumstances of the case, this Tribunal comes to the conclusion that, the petitioner No.1 is wife, Petitioner No.2 to 4 are the children and petitioner No.5 is mother of deceased Dastagiri Sab. Hence, I answer Issue No.1 in the affirmative.
9. Issue No.2: It is the case of the petitioners that, on 17-05-2016 at about 7.10 p.m., the deceased was pedestrian on the extreme left side on outer ring road main road, by observing the vehicular movements deceased was crossing the said road, near Marathahalli Bridge Under Pass, Bengaluru, at that time suddenly the driver of the BMTC bus bearing Reg.No.KA-01-FA-1430 came from Tin Factory side towards Silk Board in a rash and negligent manner and dashed against the deceased and caused the accident, due to which, the deceased fell down and sustained grievous injuries all over the body.
It is further submitted that, immediately after the accident, deceased was shifted to VIMS Hospital but on the way to the hospital the deceased was succumbed to the injuries and thereafter post mortem was conducted at SCCH-14 9 MVC No.3214/2017 Bowring and Lady Curzon Hospital and handed over the dead body to the petitioners and dead body was shifted to their residence by hiring the vehicle and performed funeral and obsequious ceremonies petitioners have spent more than Rs.2,00,000/-.
It is further submitted that, prior to the date of accident, the deceased was hale healthy and deceased was aged about 50 years and he was working as a Mason and earning a sum of Rs.20,000/- per month, from the said earning the deceased was maintaining his family members and deceased was the only earning member in their family. Due to untimely death of the deceased the petitioners life has become dark miserable and depressed and put to great financial hardship and petitioners are undergoing deep mental shock, pain and sufferings.
It is further submitted that, the petitioner No.1 being the wife of the deceased has lost love and care taker husband, Petitioner No.2 to 4 being the minor children of the deceased has lost love and affectionate and care taker father and petitioner No.5 being the widow mother of the deceased has lost and affectionate and care taker son.
The petitioners further submitted that, after the accident Airport traffic police have registered the case SCCH-14 10 MVC No.3214/2017 against the driver of offending BMTC Bus for the offences punishable U/s.279, 304(A) of IPC. The respondent is the insurer and owner of the offending bus liable to pay compensation. Hence, on the other grounds, they have prayed for awarding compensation with cost and interest.
10. On other hand, the respondent has appeared through its counsel and filed the written statement interalia contending that the BMTC bus bearing Reg. No.KA-01-FA-1430 was in its schedule trip from Tin Factory to Banashankari and when the Bus proceeding at Marathahalli Bridge in Outer Ring road slowly, cautiously with observing all the traffic rules. The deceased all of sudden rushed without observing the bus to cross the road from right to left over the Bridge where there is no Zebra crossing that too on the Bridge at night Hour and caused the Accident. In the process the deceased exposed himself to that angle and caused the accident. If the deceased had not tried to cross the road where there is Zebra Crossing that too on the Bridge the alleged accident could have been avoided, under these circumstances, the respondent is not all responsible for the accident.
SCCH-14 11 MVC No.3214/201711. In order to prove their case, the wife of the deceased i.e. petitioner No.1 examined herself as PW.1, who has reiterated the petition averments in her examination-in-chief affidavit and got marked Ex.P.1 to Ex.P.16 documents. On the other hand, the respondent company examined its driver as RW1 and no documents marked on his behalf.
12. In this case, the complaint came to be lodged by one Shivamurty Y.C., H.C.No.6965 by Airport Traffic P.S., Bengaluru. As per the complaint, on 17-05-2017, when he was on traffic duty at Marathalli Bridge, at about 7.15 p.m., some public approached him and told that an accident was taken place at Marathali under pass bridge. After receiving information he went to the place of accident, where he saw an injured person and a BMTC bus bearing Reg. No.KA-01-F-1430 was stationed and at the place of accident the driver of bus was there and on enquiry he came to know that driver of said BMITC drove the bus from Tin factory towards Silk Board in high speed, in a rash and negligent manner and dashed to the injured who was crossing the road. He also ascertained the name of the driver as Shamid Sab. Thereafter, the complainant and public shifted the SCCH-14 12 MVC No.3214/2017 injured to the VIMS hospital. The doctor of VIMS hospital after inspecting the injured declared him as brought dead on the way to the hospital. Then, the BMTC bus was brought to the police station and he lodged the complaint on 17-05-2017 at about 9.15 p.m. On the basis of his complaint, the Airport Traffic police have got registered the case in Crime No.81/2017 for the offenses under Sec.279, 304-A of IPC.
13. With regard to the negligence part is concerned, in this case the petitioner has produced the true copy of inquest mahazar as Ex.P.3. As per this document, the police have recorded the statement of Haseena Bee wife of the deceased. As per her statement, she is the resident of Turvihal Village, Sindanur taluk, Raichur District and on 19-05-2017 when she was in her house, brother of her husband Sri. Bandenawaj informed that her husband met with a road traffic accident and he was died and Turvihal police station has received, Bengaluru police notification with photo of deceased. Then, she went to Turvihal police station and saw the photo and identified the photo of her husband. Then she and her relatives were came to Bengaluru on 20-05-2017 and visited the Bowring hospital and SCCH-14 13 MVC No.3214/2017 identified the dead body of her husband and also came to know about the accident and after conducting the post mortem the dead body was handed over to her for funeral ceremony.
14. In this case, admittedly the PW1 is not an eye witness to the alleged accident. It is suggested that, the accident was occurred due to the negligence of her husband and the respondent in their written statement they have specifically taken contention that, on the date of alleged accident, the BMTC bus bearing Reg. No.KA- 01-FA-1430 was in its schedule trip from Tin Factory to Banashankari and when the Bus proceeding at Marathahalli Bridge in Outer Ring road slowly, cautiously with observing all the traffic rules. The deceased all of sudden rushed without observing the bus to cross the road from right to left over the Bridge where there is no Zebra cross that too on the Bridge at night Hour and caused the Accident. In the process the deceased exposed himself to that angle and caused the accident. If the deceased had not tried to cross the road where there is no Zebra Crossing that too on the Bridge the alleged accident could have been avoided. By perusing the sketch marked as Ex.P.4 the width of road is 38 feet and SCCH-14 14 MVC No.3214/2017 the petitioner has already crossed said road at the distance of 28 feet and he is about to cross 18 feet. As per the panchanama marked at Ex.P.5 there is no zebra crossing at the place of accident. The petitioner has not examined the eye witness to the alleged accident. So, in my opinion the deceased has also contributed to the said accident to some extent.
15. In this case, the respondent company has examined the driver of the BMTC bus as RW.1 and he has also deposed as per the contentions of the written statement. In the cross-examination of RW1, he deposed that he has not lodged any complaint against the deceased stating that the accident has occurred due to the negligence of deceased. So, on perusal of the evidence of RW1, except denial suggestion nothing worth has been elicited from him to show that the accident has not occurred due to his negligence. So, considering the evidence of RW1, if the accident has occurred due to the negligence of the deceased he would have lodged the complaint against him before the concerned police, he has not done so. Further in his cross-examination it is suggested that the since the accident has occurred due to his negligence, the BMTC have paid interim relief of SCCH-14 15 MVC No.3214/2017 Rs.15,000/- to the petitioners, for that RW1 volunteers that on the humanitarian the interim relief was paid. So, the evidence of RW1 is not helpful to the case of the respondent.
16. Apart from this, on perusal of Ex.P.1-FIR, it discloses that on the basis of the complaint as per ExP.2 lodged by Head constable No.6965 by name Shivamurthi Y.C., the Airport Traffic Police have registered the case in their Crime No.81/2017 for the offence under Sec.279 and 304-A IPC, whereas later on after conducting the panchanama and IMV report as well as after the completion of investigation, the concerned police have filed the charge sheet marked at Ex.P.3 against the driver of the Bus for the offences punishable under Sec.279 & 304-A of IPC. Filing of charge sheet in this case is prima facie evidence that the accident has occurred due to the negligence of offending vehicle driver.
17. Further on perusal of P.M. report marked at Ex.P.8, wherein the Doctor has opined that the cause of death is due to shock and haemorrhage as a result of multiple injuries sustained.
SCCH-14 16 MVC No.3214/201718. So, on appreciation of above evidence and also documents, as already discussed above that the deceased has also contributed his negligence for cause of accident. Under such circumstances, this Tribunal come to the conclusion that the deceased has contributed his negligence at 15% and the driver of BMTC has contributed his negligence at 85% for the cause of the accident and as a result of the accident the deceased succumbed to the fatal injuries. Hence, I answered Issue No.2 partly in the Affirmative.
19. ISSUE No.3:- This issue relates to the quantum of compensation to be paid to the petitioners and liability of the same.
So far as the age of deceased is concerned, the PW1 deposed in his affidavit chief that, at the time of accident, her husband was aged 50 years. In order to prove the age of the deceased, the PW1 has produced the Aadhar card of the deceased which is marked as Ex.P.12 wherein deceased date of birth is mentioned as 01-01-1964. So, as on the date of accident, the deceased was aged about 53 years. So, this Tribunal consider age of the deceased as 53 years. The multiplier applicable to the age of the deceased is 11.
SCCH-14 17 MVC No.3214/201720. So far as the avocation and income of deceased is concerned, as per the case of the petitioner that, at the time of accident her husband was working as Mason and was earning Rs.20,000/- per month. As per the statement of PW1, she stated that just one week before he came to the Bengaluru for coolie work. In such circumstances the contention of PW1 that deceased was earning Rs.20,000/- p.m. is not proved by her. Hence, this Tribunal has to assess the income of the deceased notionally. So, taking into consideration of the above reasons as well as the age of deceased, this Tribunal has assessed the income of deceased notionally at Rs.8,500/- p.m.
21. Besides, so far as adding of future prospects to the income of deceased is concerned, however, I have relied upon the ruling reported in 2018 ACJ 5 (SC) (Hemraj V/S Oriental Insurance Co. Ltd., & Ors.), wherein it is held as under;
"Quantum - Fatal accident - Principles of assessment - Future prospects - Deceased aged 40 - Upholding objection of insurance company that principle of addition on account of future prospects is not applicable where income of the deceased is determined by guesswork, High Court disallowed the addition of 50 percent made by the Tribunal for future prospects while SCCH-14 18 MVC No.3214/2017 computing compensation -Whether addition on account of future prospects is admissible where minimum income is determined on guesswork prospects is admissible where minimum income is determined on guesswork in the absence of proof of income - Held: yes; there cannot be distinction where there is evidence of income and where minimum income is determined on guesswork executing court directed to re-compute entitlement of claimants by addition 40 per cent of income for future prospects and make corresponding deduction towards personal expenses."
And also considering recent judgment passed by the Hon'ble Supreme Court in Civil Special leave petition (Civil No.25590/2014 dated 31.10.2016 (National Insurance Company Ltd., Vs. Pranay Sethi and others), wherein it is held that the person who is self employed and his age is 53 years at the time of accident, 10% has to be added as future prospects. So, taking into consideration of the same, if 10% is added to the income of deceased it would be Rs.9,350/-per month.
22. In this case, the petitioner No.1 is wife, petitioner No.2 to 4 are the minor children and petitioner No.5 is mother of deceased and admittedly, petitioners No.1 to 5 are legal heirs and dependents of the deceased. So, as per the ratio laid down in the Sarla Verma's SCCH-14 19 MVC No.3214/2017 decision, reported in 2009 ACJ 1298(SC), since the dependents are 5 members, 1/4th income has to be deducted towards personal expenses of the deceased. So, 1/4th of Rs.9,350/- would be Rs.2,337/- and after deduction of Rs.2337/- from the income of the deceased at Rs.9,350/- it would be Rs.7,013/- per month which can be rounded off to Rs.7,000/-. So, loss of dependency works out as under;
Rs.7,000 x 12 x 11 = Rs.9,24,000/-.
Hence, this Tribunal is of the opinion that the petitioners is entitled for compensation of Rs.9,24,000/- under the head loss of dependency.
23. So far as awarding compensation under other conventional heads are concerned, the petitioners have stated that, they have spent amount towards shifting of dead body and performing of funeral and obsequies ceremony. In this regard, the Hon'ble Supreme Court judgment passed in Special Leave petition (Civil) No.25590/2014 dtd. 31-10-2017 (National Insurance Co. Ltd., V/s Pranaya Sethi and Ors.), wherein it is held that as far as conventional heads are concerned the petitioners are only entitled funeral expenses of SCCH-14 20 MVC No.3214/2017 Rs.15,000/-, petitioner No.1 wife is entitled for loss of consortium is Rs.40,000/- and the petitioners No.1 to 5 are entitled for compensation under the head of loss of estate at Rs.15,000/- i.e. Rs.15,000/-. The petitioners are entitled for compensation under the following heads:
1. Loss of dependency Rs. 9,94,000 /-
2. Towards transportation of Rs. 15,000/-
dead body and funeral expenses
3. Loss of consortium Rs. 40,000/-
4. Loss of estate Rs. 15,000/-
Total : Rs.9,94,000/-
As discussed above, the deceased has contributed his negligence at 15%. Hence, the petitioners are entitled for only 85% of the compensation amount. So, 85% of total compensation of Rs.9,94,000/- would be Rs.8,44,900/- Hence, this Tribunal feels to award just and proper compensation of Rs.8,44,900/- to the petitioners.
Further In this case, in the cross-examination RW1 admitted that the respondent has paid Rs.15,000/- as interim relief to the petitioners. So, after deduction of Rs.15,000/- from the total compensation of SCCH-14 21 MVC No.3214/2017 Rs.8,44,900/- it would be 8,29,900/-. Hence, this Tribunal feels to award total compensation of Rs.8,29,900/- to the petitioners.
Interest:
24. Hon'ble Supreme Court in Civil Appeal No.3238/2015 (arising out of SLP (C) 1865/2014 (Chanderi Devi and Anr., Vs. Jaspalsingh & Ors.,) and Hon'ble High Court in MFA No.2326/2016 (Annapurna & Ors., G.Ashawathraya & Anr.,) have held that rate of interest shall be @ 9% p.a., Hence, sI hold that the petitioner is entitled for interest @9% p.a., from the date of petition till the date of payment.
Liability:-
25. As discussed above that the respondent is owner of the BMTC Bus bearing Reg. No.KA-01-FA-1430 and the accident was occurred due to the negligence of the driver of said BMTC Bus. In this case, the respondent is owner cum internal insurance of said BMTC Bus. Hence, respondent is liable and responsible to pay compensation to the petitioners in this case.
Hence, I answer issue No.3 partly in the affirmative.
SCCH-14 22 MVC No.3214/201726. ISSUE No.4: In view of above discussion and findings, I proceed to pass the following:
ORDER The petition filed by the petitioners under Sec.166 of M.V.Act is hereby partly allowed.
The petitioners No.1 to 5 are entitled for total compensation of Rs.8,29,900/- with interest @ 9% p.a. from the date of this suit till its realization.
The respondent is liable to pay compensation amount to the petitioners.
The respondent shall deposit the compensation amount within two months from the date of this order.
After deposit, out of the said compensation amount awarded, 30% share is apportioned in favour of petitioner No.1, 20% each share is apportioned in favour of petitioners No.2 to 4 and 10% share is apportioned in favour of petitioner No.5.
Out of the compensation amount awarded to petitioner No.1, 50% shall be deposited as F.D. in her name in any nationalized or schedule bank for a period of three years and the 50% remaining balance amount with accrued interest shall be released in her favour through account payee cheque on proper verification and identification.SCCH-14 23 MVC No.3214/2017
Entire compensation amount awarded to minor petitioners No.2 to 4 shall be deposited as F.D. in their respective names in any nationalized or schedule bank till they attain the age of majority and the petitioner No.1 being natural guardian of minor petitioners 2 to 4 is at liberty to withdraw interest accrued thereon periodically for the welfare of minor petitioners No.2 to 4.
On deposit, the entire compensation amount awarded to the petitioner No.5 with accrued interest shall be released in her name through account payee cheque on proper verification and identification.
The advocate fees is fixed at Rs.1,000/- Draw award accordingly.
(Dictated to the Stenographer, directly on computer and then corrected by me and pronounced in the open court, on this the 27th day of March- 2018.) (S.R.PARADESHI) XVI ADDL.JUDGE Court of Small Causes & MACT., Bengaluru.
ANNEXURE WITNESSES EXAMINED AND DOCUMENTS MARKED FOR PETITIONERS AND RESPONDENTS:SCCH-14 24 MVC No.3214/2017
PW.1 Sri.Haseena Bee @ Haseena Begum
RW.1 Sri.Shamid Sab Valikar
Ex.P.1 True copy of FIR
Ex.P.2 True copy of complaint
Ex.P.3 True copy of charge sheet
Ex.P.4 True copy of sketch
Ex.P.5 True copy of panchanama
Ex.P.6 True copy of IMV report
Ex.P.7 True copy of inquest
Ex.P.8 True copy of P.M.report
Ex.P.9 True copy of school certificate of the
petitioner No.2
Ex.P.10 Birth certificate of the petitioner No.3
Ex.P.11 Birth certificate of the petitioner No.4
Ex.P.12 Notarized copy of Aadhar Card of the
deceased
Ex.P.13 Notarized copy of my Aadhar CArd
Ex.P.14 Notarized copy of Aadhar card of the
petitioner No.2
Ex.P.15 Notarized copy of Aadhar Card of the
petitioner No.3
Ex.P.16 Notarized copy of Aadhar Card of the
petitioner No.5
Respondent: - NIL -
XVI ADDL.JUDGE
Court of Small Causes & MACT.,
Bengaluru.