Bangalore District Court
Smt. Vanitha.G vs Shri. Venkatesh. V on 5 January, 2015
BEFORE THE COURT OF SMALL CAUSES AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, AT BANGALORE (SCCH-09)
PRESENT: SRI MANJUNATH NAYAK,
B.A.L, LL.B.,
Judge, Court of Small Causes &
XXVI ACMM, (SCCH-09) Bangalore.
Dated: 5th JANUARY 2015.
MVC.No.621/2011
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PETITIONERS: 1. Smt. Vanitha.G., Aged 29 years,
W/o Late Gunashekar.S.
2. Master Tridev, Aged 1 year,
S/o Late Gunashekar.S.
Since minor, Rep by his Mother
Petitioner No.1, Smt. Vanitha G.
3. Shri. Shanmugam, Aged 59 years,
4. Smt. Loganayaki.V.S., Aged 56 years,
W/o Shri. Shanmugam,
All are R/at NO.188/1,
Indira Street, Subbannapalya,
Bangalore-560 033.
(By Pleader, Sri. M.K. Girish)
Vs.
RESPONDENTS: 1. Shri. Venkatesh. V., Aged 40 years,
S/o Late T. Vadivelu,
Rider of Scooter No.KA-02-V-133,
R/at No.51, 3rd Cross, 2nd Main
Road, Opp. Muneshwara Temple,
Lalbagh Road, Bangalore-560 027.
(By Pleader, Sri Harish )
MVC No.621/2011
SCH9
2
2. M/s United India Insurance Co. Ltd.,
No.109, S.S.I Area,
Rajajinagar, 5th Block, Next to
Dasashram, Dr. Raj Kumar Road,
Bangalore-10.
Policy No.071602/31/09/0009371,
Vehicle No.KA-02-V-0133.
(By Pleader, Sri Janardhan Reddy)
3. G. Vijay Kumar, Aged 40 years,
S/o T. Govindaswamy,
R/at D. No.103, Magadi Road,
2nd Cross, Thammappa Park,
Back side, Bangalore-560 023.
(By Pleader, Sri M.V.Keshava Reddy)
******
JUDGMENT
This claim petition is filed by the petitioners under Section 166 of Motor Vehicles Act, 1989, claiming compensation for the death of one S. Gunashekar in a road traffic accident dated 07-07- 2010.
2. The case of the petitioners, as set-out in the petition is as follows:
Deceased Gunashekar is the husband of petitioner No.1, father of petitioner No.2 and son of petitioner No.3 and 4 and he was working in a Private firm and earning Rs.10,500/- p.m. On 07-07-2010, at 11.00 p.m., when the respondent No.1 was going in a Scooter bearing reg.No.KA-02-V133, deceased Gunashekar was a pillion rider in the said scooter and due to the rash and negligent MVC No.621/2011 SCH9 3 riding by of the scooter by the respondent No.1, deceased fallen down from the scooter, near Mount Carmel College junction, on I Main Road, infront of Kodava Samaj, Bangalore, due to which, said Gunashekar sustained fatal injuries and declared dead at Bowring hospital on the same night. The accident was due to the rash and negligent riding of the scooter bike by respondent No.1.
Deceased was the only earning member of the petitioners family and due to his death, petitioners were put to irreparable loss and hardship. The respondents, being the owner and insurer of the offending scooter, are liable and responsible to pay the compensation to the petitioners. On all these grounds, the petitioners prayed for awarding the compensation of Rs.50,00,000/- to them.
3. In response to the notice, the respondents appeared before this Tribunal through their counsel and respondent No.2 and 3 have filed written statement and admitted that the offending vehicle was insured with the respondent No.2 and insurance policy was in force on the date of the accident. The respondents denied other petition averments regarding the accident, manner in which the accident took place, rash and negligent riding of the two- wheeler by the respondent No.1 as the cause for the accident. The respondents also denied the age, income and avocation of the MVC No.621/2011 SCH9 4 deceased, petitioners depending upon the deceased, loss and hardship caused to them due to the death of the deceased. The respondent No.2 further contended that the offending vehicle was not at all involved in the accident and by colluding with the police, a false case is foisted against the rider of offending vehicle, with an intention to get the compensation. The respondent No.2 further contended that the rider of the offending scooter had no driving licence and there is violation of policy conditions by the owner of the bike. Therefore, they are not liable to indemnify the owner of the bike and to pay the compensation to the petitioners. The respondent No.3 further contended that his vehicle was insured with the respondent No.2 and rider of the same had valid driving license and even if the petitioner are entitled for the compensation, the respondent No.2 is liable to pay the same. On all these grounds, the respondents prayed for dismissal of the petition with costs.
4. On the basis of the above pleadings, following issues were framed:
1. Whether the petitioners prove that on 7.7.2010 at about 11.00 p.m on I Main Road, in front of Kodava Samaj, Vasanthanagar, Bangalore, when the deceased S. Gunashekar was travelling in a Scooter bearing No.KA-02-V-133 as pillion rider, at that time, the rider of the said motor cycle (R.1) drove the same in a rash and negligent manner near Mount MVC No.621/2011 SCH9 5 Carmel College Junction and the deceased Gunashekar fell down and sustained fatal injuries and later he succumbed to the injuries as alleged?
2. Whether the petitioners are entitled for compensation? If so, what is the quantum and from whom?
3. What order or award?
5. To prove the above issues, the petitioner No.1 examined before this Tribunal as P.W.1 and two witnesses on their behalf as PW.2 & P.W.3 and got marked Ex.P.1 to P.11 documents. The respondents have examined three witnesses as RW.1 to R.W.3 and got marked Ex.R.1 to Ex.R.3 documents.
6. I have heard the arguments.
7. By considering the evidence on record and because of my below discussed reasons, I answer the above issues in the followings:
Issue No.1: IN THE AFFIRMATIVE. Issue No.2: PARTLY IN THE AFFIRMATIVE Issue No.3: AS PER FINAL ORDER.
REASONS ISSUE NO.1:
8. The petitioner No.1, who was examined before this Tribunal as PW.1, has reiterated the petition averments in her examination-in-chief affidavit and deposed about their relationship MVC No.621/2011 SCH9 6 with the deceased Gunashekar and his death was due to the accidental injuries. PW-1 further deposed that the said accident was due to the rash and negligent driving of the scooter by the respondent No.1. PW-1 further deposed that her husband Gunashekar was working in a private firm and earning Rs.10,500/- p.m. PW.1 further deposed that her husband was the sole bread earner in their family and due to his death, they were put to irreparable loss and hardship.
9. The petitioners examined one Jayakumar S/o M.Swamynathan as PW.2 and he deposed that the deceased was working in their firm as Sales Representative and getting salary of Rs.10,500/- p.m.
10. The petitioners examined one Velumani S/o Sadashivam as PW.3 and he deposed that, he has witnessed the accident, as he was going in another scooter at the time of accident and the accident was due to the rash and negligent riding of the offending Scooter, as he applied the break suddenly due to which deceased Gunashekara fallen down from the bike. PW3 further deposed that after the accident deceased Gunashekar was shifted to Mahaveer Jain hospital and he died on the way to the hospital and he lodged the police complaint regarding the accident.
MVC No.621/2011 SCH9 7
11. The petitioners produced F.I.R registered in respect of the accident as per Ex.P.1. The charge sheet filed against the rider of offending scooter is marked as per Ex.P.2. The IMV report of the vehicle involved in the accident is marked as per Ex.P.3. The spot sketch is marked as per Ex.P.4. Ex.P.5 is the PM report. Ex.P.6 is the letter issued by Mahaveer Jain hospital. Ex.P.7 is the ration card and Ex.P.8 is the spot mahazar. Ex.P.9 is the ration card. Ex.P.10 is the death certificate and Ex.P.11 is the VAT 'registration certificate.
12. The respondent No.2 has examined their Administrative Officer as RW.1 and she admitted that the offending vehicle was insured with them and the insurance policy was in force on the date of the accident. RW.1 further deposed that provisions of section 134 & 158(6) of MV Act, is not complied by the owner of the vehicle and also by the police. RW.1 further deposed that the alleged accident was not caused due to the rash and negligent riding of insured vehicle and with an intention to get the compensation, a false case was registered against the insured vehicle by colluding with the owner. RW.1 further deposed that rider of the offending bike has no valid driving license.
13. The respondent No.2 examined the PSI of High Ground Traffic police and examined him as RW.2 and he produced the MVC No.621/2011 SCH9 8 letter written by them from Bhagwan Mahaveer Jain hospital and reply given to them by the police.
14. The respondent No.2 summoned the Inspector of White Field Traffic police, Bangalore and examined him as RW.3 and he deposed that he had investigated this case and after registration of F.I.R., he conducted the investigation and filed the charge sheet. RW.3 further deposed that, one Vijaya Kumar, who is the owner of the offending vehicle, has given reply to the notice under Sec.133 of MV Act, issued by him. RW.3 further deposed that there was no road hump or speed breaker at the accident spot. RW.3 further deposed that they have not received any MLC intimation from Mahaveer Jain hospital regarding the admission of the deceased in their hospital.
15. The respondents produced insurance policy as per Ex.R.1. The letter issued by Mahaveer Jain hospital is marked as per Ex.R.2. Ex.R.3 is the circular issued by DGP.
16. There is dispute regarding the occurrence of the accident, manner in which the accident took place and also involvement of the offending vehicle in the accident. There is no serious dispute about the death of the deceased Gunashekar due to the accidental injuries. So as to independently prove the same, the petitioners have produced the Post mortem report as per MVC No.621/2011 SCH9 9 Ex.P.5. This document was not at all disputed or denied by the respondents. The petitioners have produced the death certificate of the deceased Gunashekar as per Ex.P.10. All these documents would prove that deceased Gunashekar died due to the accidental injuries.
17. To prove their relationship of the deceased, the petitioners have produced the ration card as per Ex.P.7 & Ex.P.9. These documents prove that petitioner No.1 is the wife, petitioner No.2 is the son and petitioner No.3 and 4 are the father and mother of the deceased Gunashekar. This relationship of the petitioners with the deceased has not been seriously disputed or denied by the respondents.
18. To show that the accident was due to the rash and negligent driving of the offending scooter by its rider, the petitioners have produced F.I.R., as per Ex.P.1. It is evident from Ex.P.1 that on 07-07-2010 at 11.00 a.m., when the deceased was going in a scooter bearing reg.No.KA-02-V-133, as a pillion rider, which was ridden by respondent No.1, near Mount Carmel College Junction, Bangalore, due to the rash and negligent riding of respondent No.1, deceased fallen down from the scooter and sustained fatal injuries, shifted to Mahaveer Jain hospital, where he was declared dead and thereafter, his body was shifted to MVC No.621/2011 SCH9 10 Bowring hospital. The High Ground Traffic police, who have registered the F.I.R., conducted investigation and filed the charge sheet against the rider of the offending scooter, as evident from Ex.P.2. The filing of charge sheet in the criminal case is a prima- facie evidence for this case to prove and establish that the accident was due to the rash and negligent driving of the offending scooter by its rider. Even the sketch and mahazar of the accident spot produced as per Ex.P.4 & Ex.P.8 was also indicate that the accident was due to the rash and negligent driving of the offending scooter by its rider. The IMV report produced as per Ex.P.3 goes to show that there was no mechanical defect in the offending scooter to cause the accident. By producing all these documents and evidence, the petitioners have discharged the initial burden placed upon them to prove that the accident was due to the rash and negligent driving of the scooter by its rider.
19. The respondent No.2 has seriously disputed the occurrence of the accident, as claimed by the petitioners, involvement of the offending scooter in the accident and also the rash & negligent riding of the scooter by the respondent No.1 as the cause for the accident. In this regard, the respondent No.2 mainly relied upon the delay in registration of F.I.R., rider of the scooter not sustaining any injuries and the offending scooter being MVC No.621/2011 SCH9 11 not damaged due to the accident and also non registration of MLC at Mahaveer Jain Hospital. By drawing the attention of this Tribunal of all these aspects, it is argued by the respondent No.2 that the accident was due to the self-fall of the deceased due to his own negligence and only to get the compensation, a theory of accident has been created by saying that the deceased was a pillion rider in the scooter, which was ridden by the respondent No.1.
20. In support of all these contentions, the learned counsel for the respondent No.2 has relied upon the following decisions:
1. MFA No.23432/2011(MV) (Smt. Haseenabanu and others Vs. Maqbool Ahamed Fakruddin Killedar and another).
2. Civil Appeal No.3171/2009 (North West Karnataka Transport Corp. vs. Gourabai and others).
3. 2004 A C J 1289 (Appaji (since deceased) and another) vs. M.Krishna and another).
4. ILR 2009 KAR 3562 (Veerappa and another vs. Siddappa and another).
5. ILR 2009 KAR 2921 (Bajaj Allianz General Insurance Company Limited vs. B.C.Kumar and another).
6. MFA. No.9054/2005 (Mr. P.Varghees vs. The Managing Director, BMTC).
MVC No.621/2011 SCH9 12 I have carefully gone through the facts and circumstances of the case involved in all those decisions and also the ratio laid down in all those decisions. Now I have to consider as to whether the ratio laid down in all those decisions are applicable to the facts and circumstances of this case?
21. So far as the delay in registration of FIR is concerned, the alleged accident has taken place at 11.00 p.m. on 07-07-2010 whereas, the complaint as per Ex.P.1 was lodged before the High Ground Traffic police on 08-07-2010, during the early hours of 5.15 a.m. There is delay of 6 hours and 15 minutes in lodging the complaint. One cannot say that this as a delay in lodging the complaint. Since the accident has occurred during late night at 11.00 p.m., complaint was lodged immediately on the next day morning at 5.15 a.m. When the injured has sustained fatal injuries and died, one cannot expect lodging of the complaint within one or two hours after the accident. This delay of 6 hours in lodging the complaint is only because the accident occurred during in the midnight, deceased sustained fatal injuries and succumbed to the injuries. Hence, one cannot say that there was any delay in lodging the complaint. At the same time, the contention of respondent No.2 that the delay was caused with an MVC No.621/2011 SCH9 13 intention to plant a false case against the insured vehicle also cannot be accepted.
22. If this Tribunal draws its attention to the other grounds said by respondent No.2, it is true that the rider of the scooter has not sustained any injuries due to the accident. It is also true that even the scooter was also not damaged due to the accident. But, on this score, one cannot say that the accident was not occurred in the manner as claimed by the petitioners. As per complaint allegations, at the time of the accident, deceased was a pillion rider in the scooter and due to the rash and negligent riding, he fallen down from the scooter. It is nobody's case that both the rider and pillion rider were fallen down and scooter was also fallen down due to the accident. It is a case of pillion rider falling down from the moving scooter due to the rash and negligent riding. Under such circumstances, question of rider of the bike sustaining injuries or damage causing to the scooter would not arise. Therefore, one cannot accept the arguments of respondent No.2 that the offending scooter was not all involved in the accident and the deceased was riding the scooter and due to his own fall, the accident occurred. If the deceased was riding the vehicle and he fallen down, even the vehicle would have fallen down and damage would have been caused to the vehicle. No damages being MVC No.621/2011 SCH9 14 caused to the vehicle itself goes to show that the deceased was not riding the scooter at the time of accident. In fact, no damage being caused to the offending scooter would help these petitioners, as this Tribunal has to accept the version of the petitioners, regarding the manner in which the accident occurred.
23. The learned counsel for the respondent No.2 has also drawn the attention of this Tribunal to the evidence of PW.3 & RW.3 and offending vehicle has not seized by the police by drawing any mahazar and also non-registration of MLC at Bhagwan Mahaveer Jain hospital, where the deceased was taken immediately after the accident.. Merely because no mahazar was drawn by the police for seizing the offending bike, it cannot be a ground to say that police have colluded with the petitioners or the complainant. Of course PW.3, who is the complainant and lodged the complaint said that if the accident was occurred in this manner, there is a possibility of rider of the bike sustaining injuries. PW.3 said about the possibility of rider sustaining injuries, but not said that the rider of the bike has sustained any such injuries. Since the deceased was taken to near by Bhagvan Mahaveere Jain hospital and while reaching the hospital he died, he was not admitted to the said hospital as an in-patient and there after his body was taken to Bowing hospital for post martem.
MVC No.621/2011 SCH9 15 Because of all these reasons, MLC might not have registered at Bhagwan Mahaveer Jain Hospital. All these circumstances would not overcome the police records, charge sheet, spot mahazar, sketch and also the evidence of PW.3, which all would prove the accident, involvement of the offending scooter in the accident and rash & negligent riding of the scooter, as the cause of the accident. Therefore, the ratio laid down in the above decisions are not helpful to the respondent No.2. Rather, this Tribunal has to accept the petitioners' version and hold that the accident is due to the rash and negligent riding of the offending scooter by its rider. Accordingly, I answer issue No.1 in the affirmative.
ISSUE NO.2:
24. This issue is regarding the quantum of compensation to be awarded to the petitioners and liability to pay the same. The petitioners contended that the deceased Gunashekar was working in a Private Firm and getting salary of Rs.10,500/- p.m. To prove the same, petitioners have produced a letter issued by the Company as per Ex.P.6, which indicate that the deceased was working as a Sales Representative in their company, since May 2007 and getting salary of Rs.10,500/- p.m. To prove the said documents, the petitioners have examined one of the partner of the said Company as PW.2 and he deposed that Gunashekar was MVC No.621/2011 SCH9 16 working in their Company and getting salary of Rs.10,500/- p.m. Under such circumstances, this Tribunal has to accept the same and hold that the deceased was getting the salary of Rs.10,500/- p.m. At the rate of Rs.10,500/- p.m., annual income of the deceased would be Rs.1,26,000/-. Since the deceased is working in Private Firm since 2007 and he is paying salary of Rs.10,500/- p.m. and it is a permanent job having fixed wages, as per the decision of Hon'ble Supreme Court reported in 2013 ACJ 1403 (Rajesh & others Vs. Rajbir Singh and others), the future prospectus have to be added to the income of the deceased. The deceased was aged 34 years at the time of his death, as evident from PM report. As per the above referred decision, when the deceased is at the age group of 30 to 40 years, 50% of his actual income has to be added as future prospectus. 50% of Rs.1,26,000/- would be Rs.63,000/-. If Rs.63,000/- is added to Rs.1,26,000/-, it would be Rs.1,89,000/-. The deceased has got 4 dependents, who are petitioner No.1 to 4 in this petition. When the deceased has 4 dependents, his 1/4th share has to be deducted towards personal expenses and 3/4th has to be considered for awarding the compensation under the head loss of dependency in view of the decision reported in 2009 ACJ 1298 (SC) (Sarla Verma and others Vs. Delhi Transport Corporation and another).
MVC No.621/2011 SCH9 17 3/4th of Rs.1,89,000/- would be Rs.1,41,750/-. The deceased was aged 34 years at the time of his death. Therefore, multiplier 16 is applicable for his age. If Rs.1,41,750/- is multiplied by 16, it would be Rs.22,68,000/-. Therefore, I hold that the petitioners are entitled for the compensation of Rs.22,68,000/- under the head loss of dependency.
25. So far as the awarding of compensation under other conventional heads are concerned, the petitioners are entitled for a sum of Rs.25,000/- towards the transportation of dead body and expenses for performing funeral and obsequies ceremonies, Rs.15,000/- towards loss of consortium to petitioner No.1 and Rs.15,000/- towards love and affection and Rs.15,000/- towards loss of estate. The petitioners are not entitled for the compensation under other heads. So, the petitioners are entitled for the compensation under these following heads:-
1. Loss of dependency Rs. 22,68,000/-
2. Transportation of dead body Rs. 25,000/-
and for performance of
obsequies ceremonies
3. Loss of love and affection Rs. 15,000/-
4. Loss of consortium Rs. 15,000/-
5. Loss of estate Rs. 15,000/-
Total Rs. 23,38,000/-
MVC No.621/2011
SCH9
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In total, the petitioners are entitled for the compensation of Rs.23,38,000/-.
26. Now I have to consider the question of liability to pay the compensation. The respondent No.2 admitted that the offending vehicle was insured with them and insurance policy was in force on the date of the accident. Though the respondent No.2 denied their liability to pay the compensation by asserting that there is violation of policy conditions by the owner of the offending bike, they failed to prove and substantiate the same by leading any evidence before this Tribunal. There is no violation of policy conditions as alleged by respondent No.2. Therefore, it is the respondent No.2, who is liable and responsible to pay compensation to the petitioners. Accordingly, I answer issue No.2 partly in the affirmative.
ISSUE No.3:-
27. In view of my above findings, the petition is deserves to be partly allowed. Hence, I proceed to pass the following order:
ORDER The petition filed by the petitioners U/s.166 of MV Act is partly allowed with costs.
The petitioners are awarded with the compensation of Rs.23,38,000/- (Rs. Twenty three lakhs thirty eight thousand only) with interest at MVC No.621/2011 SCH9 19 the rate of 6% p.a. from the date of petition till its realization.
The Respondent Nos.2 and 3 are jointly and severally liable to pay the compensation to the petitioner.
The Respondent No.2 shall deposit the compensation amount awarded with interest
within two months from the date of award.
Out of the said compensation amount, 50% share is apportioned in favour of petitioner No.1, 30% share is apportioned in favour of petitioner No.2 and 10% each share is apportioned in favour of petitioner No.3 and 4.
The entire compensation amount with interest, awarded to the petitioner No.3 and 4 shall be released to them through account payee cheque.
50% of compensation amount with proportionate interest awarded to the petitioner No.1 shall be deposited in the name of the petitioner No.1 as FD in any nationalized bank of her choice, for a period of five years (without any encumbrance or premature withdrawal) with liberty to draw the accrued interest periodically. Remaining 50% of the compensation amount with proportionate interest shall be released to the petitioner No.1, through A/c payee cheque, on proper identification.
As the petitioner No.2 is minor, entire compensation amount awarded to him with MVC No.621/2011 SCH9 20 interest shall be deposited as FD in any nationalized bank of their choice, by showing his mother, petitioner No.1, as guardian, for a period of ten years or till the minor petitioner attains the age of majority, whichever is later, with liberty to draw the accrued interest periodically, by the minor guardian mother petitioner No.1, for the maintenance of the petitioner No.2.
Advocate fee is fixed at Rs.500/- Draw award accordingly.
******* (Dictated to the stenographer, transcribed by her, corrected and then pronounced in the open court on this the 5th day of January 2015) (MANJUNATH NAYAK), Judge, Court of Small Causes & XXVI ACMM, Bangalore.
()()()()() ANNEXURE Witnesses examined on behalf of petitioners:
PW.1 : Smt. Vanitha.G.
PW.2 : Jaya Kumar.
PW.3 : Velumani.S.
Documents marked on behalf of petitioners:
Ex.P.1 : FIR with complaint
Ex.P.2 : Charge sheet
Ex.P.3 : IMV report
Ex.P.4 : Sketch
Ex.P.5 : P.M.Report
Ex.P.6 : Letter issued by the Company
Ex.P.7 : Notarised copy of Ration card
Ex.P.8 : Spot Mahazar
Ex.P.9 : Notarized copy of Ration card
Ex.P.10 : Death certificate
MVC No.621/2011
SCH9
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Ex.P.11 : Notarized coy of VAT registration
Certificate.
Witnesses examined on behalf of respondents:
RW.1 : K. Kusuma
RW.2 : Kantharaju
RW.3 : M.V. Tejaswi
Documents marked on behalf of the respondents:
Ex.R1 : Insurance policy
Ex.R2 : Letter form Hospital
Ex.R3 : Circular from DGP with Covering letter
(MANJUNATH NAYAK),
Judge, Court of Small Causes
& XXVI ACMM, Bangalore.