Bangalore District Court
Ramprasad Kushwaha vs United India Ins.Co.Ltd on 27 April, 2022
KABC020245762019
BEFORE THE CHIEF JUDGE, COURT OF SMALL
CAUSES, MEMBER PRL.MOTOR ACCIDENT CLAIMS
TRIBUNAL AT BENGALURU
DATED THIS THE 27th DAY OF APRIL 2022
PRESENT : Smt. PRABHAVATHI M. HiREMATH,B.A., L.L.B.(Spl.)
MEMBER, PRL. M.A.C.T.
M.V.C. No. 5825/2019
PETITIONERS: 1. Ramprasad Kushwaha,
S/o. Gopal Kushwaha,
Aged about 54 years.
2. Shanthi Devi,
W/o.Ramprasad Kushwaha,
Aged about 52 years.
Both are R/at
Madhua Koiritola,
Madhubani,
West Champaran,
Madhubani,
Bihar845404.
(By Sri.C.K.Lokesh , Advocate)
Respondents: 1. United India Ins.Co.Ltd.,
Regional Office,
5th & 6th Floor,
SCCH-1 2 MVC No.5825/2019
Krishi Bhavan,
Hudson Circle,
Bangalore 01.
(The Insurer of the Crane Bearing
Reg.No.KA51ML5875)
(By Sri B.T.Rudra Murthy , Advocate)
2. Rasheed K.M.,
S/o.Maboob Baik Khadar Baik,
No.16, BCross, 4th Main,
Balaji Layout, Hongasandra,
Bommanahalli, Banglore.
(The owner of the Crane bearing
Reg.No.KA51ML5875)
... Exparte
*******
JUDGMENT
This is a petition is filed under Section 166 of the of the Motor Vehicles Act, 1989 by the petitioners for awarding compensation of Rs.45,00,000/ with interest and costs for the death of Udayabhan Kushwaha , S/o. Ramprasad Kushwaha in the Road Traffic Accident.
SCCH-1 3 MVC No.5825/2019
2. The brief facts of the petition are as follows:
On 25.07.2019 at 5.30 p.m. deceased Udayabhan Kushwaha and other coworkers were engaged in doing gas pipeline work near H.M.G. Granite Factory, Yadavanahalli Attibele. The Hydraulic Mobile Crane bearing No.KA51ML5875 was moving the iron pipes from one place to another place. At that time the said crane moved in a high speed negligent manner and dashed to Udayabhan Kushwaha and left wheel ran over on the head of Udayabhan Kushwaha and he died on the spot.
3. It is the case of the petitioner that prior to the accident, deceased was hale and healthy , he was aged about 22 years, working in Corertech International Pvt. Ltd., and getting salary of Rs.16,000/p.m. He was contributing his entire earnings to the family. The petitioners are the parents of the deceased. The second respondent is the owner of the crane and first SCCH-1 4 MVC No.5825/2019 respondent is the insurer of the crane, therefore, they are jointly and severally liable to pay the compensation and total compensation of Rs.45,00,000/ is claimed.
4. After service of notice of this petition, respondent No.1 insurance company appeared through Advocate and respondent No.2 remained absent and placed exparte.
5. The brief facts of the Written Statement filed by the respondent No.1 are as follows:
The respondent is the insurer of Hydraulic Mobile Crane bearing No.KA51ML5875 . The liability of the first respondent is subject to the terms and conditions of the policy and provisions of M.V.Act and the driver of the vehicle should possess the valid and effective driving licence. The second respondent has not complied the mandatory requirements of Section 134(c) of M.V.Act. He has not submitted all vehicular documents including driving licence, F.C. and SCCH-1 5 MVC No.5825/2019 insurance particulars to the respondent. The second respondent knowing fully well handed over the crane to Umar Farooq , who had no valid and effective driving licence to drive the insured mobile crane, thereby violated the terms and conditions of the policy.
6. There is no negligent act on the part of the driver of the mobile crane with reference to accident occurred on 25.07.2019 at about 5.30 p.m. The petitioners have to prove that the Deceased Udayabhan Kushwaha was working with a safety position and he was working carefully, cautiously observing movements of mobile crane, at that time mobile crane came in a high speed, rash or negligent manner and dashed against the deceased. The accident occurred due to the negligent act on the part of the deceased himself, who without observing the movements of the mobile crane was working negligently. The other averments with reference to age, SCCH-1 6 MVC No.5825/2019 occupation , income of the deceased are denied and prayed to dismiss the petition.
7. From the above stated pleadings of the parties, following issues have been settled for trial by my predecessor in office. :
1. Whether the Petitioners prove that the deceased succumbed to injuries in a Motor Vehicle Accident that occurred on 25.07.2019 at about 5.30 p.m. , near HMG Granite Factory, Yadavahalli, Attibele Hobli, Anekal Taluk, Bengaluru, within the jurisdiction of Attibele Police Station, on account of rash and negligent driving of the Hydraulic Mobile Crane bearing Registration No.KA51ML5875 by its driver when the deceased was engaged in doing Gas Pipeline work ?
2. Whether the respondent No.1 proves that the accident has occurred on account of negligent act of deceased ?
3. Whether the petitioners are entitled for compensation ? If so how much and from whom?
4. What order ?
8. In support of the petitioners case, petitioner No.1 is examined as PW1 and got marked in all 11 SCCH-1 7 MVC No.5825/2019 documents as Ex.P.1 to P.11. In support of the respondents case, A.O. of the first respondent insurance company is examined as RW1 and Inspector of Police who has conducted investigation in the criminal case is examined as RW2 and got marked in all 4 documents as Ex.R.1 to R.4.
9. Heard arguments on both sides.
10. For the reasons stated in the subsequent paras, I answer issues as follows:
Issue No.1 ... In the Affirmative, Issue No.2 ... In the Negative Issue No.3 ... Accordingly, Issue No.4 ...As per final order for the following: REASONS
11. Issue No.1 and 2 : As these issues are with reference to the negligent act whether on the part of the driver of the crane or on the part of the deceased thereby to avoid repetition of discussion of facts and SCCH-1 8 MVC No.5825/2019 evidence these 2 issues are taken together for discussion.
12. It is the case of the petitioners that due to rash or negligent act of driving on the part of driver of the crane accident occurred after touch to the deceased, crane ran over on the head of the deceased , thereby he succumbed to the injuries on the spot. To substantiate the same petitioners relied on police records and evidence of RW2. Ex.P.1 is FIR, Ex.P.2 complaint, Ex.P.3 spot panchanama, Ex.P.4 spot sketch, Ex.P.5 IMV Report, Ex.P.8 charge sheet.
13. From going through the above said documents, it is clear that on the date of accident within one hour from the time of occurrence of accident on the basis of the complaint lodged by Sunil Kushwaha case is registered against the driver of the mobile crane for the offences punishable under Section 279,304(A) of IPC. On the same day, as per Ex.P.3, SCCH-1 9 MVC No.5825/2019 spot panchanama was conducted. Ex.P.4 is the spot sketch.
14. As deceased along with other workers was doing the pipeline work and the crane was also used for the purpose of shifting the iron pipes. In the complaint lodged by coworker Sunil Kushwaha he has mentioned that at the time of accident himself and deceased were doing pipeline work along with others as per the direction of Sukhwanth Singh, Company Director, Hitesh Desai, Manager and Minalday, Superviser . At the time of accident at about 12.00 noon complaint himself, deceased Udayabhan Kushwaha , one Manto and others were on spot and they were doing pipeline work and on one side of the pipe complainant was holding and other end deceased was holding , with the help of crane they were moving the pipe , at that time driver of the crane drove the vehicle in high speed and dashed to the deceased. SCCH-1 10 MVC No.5825/2019 Thereafter left front wheel of the crane ran over on the deceased. The said fact can be noticed in Ex.P.4 spot sketch. The design of the crane was also drawn in rough sketch. We can find blood stain on road, metal pipe which was carrying by the crane at the time of accident was shown as No.2.
15. As per complaint, complainant was on one end of the pipe and deceased was at the other end of pipe. From that averments it can be clear that deceased was at the end of pipe which was towards crane and complainant was on the front side of the pipe. After dash he fell down and front left wheel ran over him , therefore, we can find blood stain on the road. To disbelieve the contents of either complaint and Ex.P.3 Spot panchanama, Ex.P.4 spot sketch nothing is elicited during the course of cross examination. Eventhough PW1 is not an eye witness to the accident that itself is not sufficient to disbelieve SCCH-1 11 MVC No.5825/2019 the averments in the police records, as there is no positive evidence available on record to prove the negligent act on the part of the deceased himself.
16. The evidence relied on by the respondent No.1 insurance company, with reference to the negligent act on the part of the deceased is evidence of RW1. RW1 is also not an eye witness to the incident but his evidence is not corroborating with any other document. On the contrary RW2 , Investigating Officer has deposed that he has investigated the crime No.250/2019 of Attibele police station wherein Hydraulic Mobile Crane bearing No.KA51ML5875 was involved. He has collected the copy of R.C. of the crane which was involved in the accident.
17. On completion of investigation, he has filed the charge sheet against the driver of the Mobile Crane, Umar Farooq. During the evidence of RW2, more concentration was given by the insurance SCCH-1 12 MVC No.5825/2019 company on the point that driver of the crane was not possessing valid driving licence. Except that they have not disputed the averments in Ex.P.3 spot panchanama and Ex.P.4 spot sketch. Therefore, from the evidence of RW1 and police records, the petitioner proved that only due to the rash or negligent act of driving on the part of crane driver accident occurred. On the contrary, respondent No.1 failed to prove that there is negligent act on the part of the deceased . In this case there is no dispute regarding the fact that son of petitioner succumbed to the injuries sustained in the accident. They have produced Inquest panchanama and P.M.Report to show that crane ran over the head of the deceased and he succumbed to the injuries on the spot. For the above said reason issue No.1 is answered in the affirmative and Issue No.2 in the Negative.
SCCH-1 13 MVC No.5825/2019
18. Issue No.3: In this case, petitioners have claimed compensation of Rs.45,00,000/ under different heads.
19. It is the specific case of the petitioners that deceased was working in a company and he is getting salary of Rs.16,000/p.m. From the complaint and other police records, it is proved that petitioner was working in a Company and they were doing Gas pipeline work. In the complaint itself coworker has mentioned the same. But there is no documentary evidence produced by the petitioners to prove what was the exact income drawn by the deceased . They have not produced the salary slip, accounts statement or evidence of the employer of the deceased. Therefore, notional income is required to be taken. As accident is of the year 2019, notional income of the deceased is taken as Rs.13,000/p.m. As deceased was working in SCCH-1 14 MVC No.5825/2019 a private Company future prospects is required to be taken into consideration.
20. As per the principle laid down by the Hon'ble Apex Court reported in (2021) 2 SCC 166 (Kriti Vs. Oriental Insurance Co., Ltd.,), Their Lordship, in Supplement Para 23, have that :
23. The rationale behind the awarding of future prospects is therefore no longer merely about the type of profession, whether permanent or otherwise, although the percentage awarded is still dependent on the same. The awarding of future prospects is now a part of the duty of the Court to grant just compensation, taking into account the realities of life, particularly of inflation, the quest of individuals to better their circumstances and those of their loved ones, rising wage rates and the impact of experience on the quality of work.
24. Taking the above rationale into account, the situation is quite clear with respect to notional income determined by a Court in the first category of cases outlined SCCH-1 15 MVC No.5825/2019 earlier, those where the victim is proved to be employed but claimants are unable to prove the income before the Court. Once the victim has been proved to be employed at some venture, the necessary corollary is that they would be earning an income. It is clear that no rational distinction can be drawn with respect to the granting of future prospects merely on the basis that their income was not proved, particularly when the Court has determined their notional income.
21. From Ex.P.10, Aadhaar Card of deceased his date of birth is 01.01.1997. Therefore, as on the date of accident, he was 22 years old and as per the above referred judgment, 40% of his income has to be taken as loss of future prospects. The 40% of the present income of Rs.13,000/ is Rs.5,200/ and if the same is added to his present income, it comes to Rs.18,200/ p.m.
22. It is an admitted fact that deceased was a bachelor at the time of accident. Therefore, 50% of his SCCH-1 16 MVC No.5825/2019 income is required to be deducted towards personal expenses if he would have been alive. 50% of Rs.18,200/ would be Rs.9,100/. After deducting the same, the balance comes to Rs.9,100/p.m. and annually, the income works out to Rs.1,09,200/ . As I have already held that deceased was 22 years old as on the date of accident. Therefore, as per 2009 ACJ 1298 (Sarala Verma Vs. Delhi Transport Corporation) the multiplier applicable to the present case is 18 and if we multiply the annual income of the deceased by the multiplier, the same works out to Rs.19,65,600/ . Hence, the petitioners are entitled to Rs.19,65,600/ under the head loss of dependency.
23. Further, as laid down by the Hon'ble Apex Court in 2017 ACJ 2700 (SC) (National Insurance Company Limited Vs Pranay Sethi and others), petitioner is awarded Rs.15,000/ towards loss of SCCH-1 17 MVC No.5825/2019 estate and Rs.15,000/ towards funeral expenses.
24. Further,as held by the Hon'ble Apex Court in Magma General Insurance Co.Ltd., Vs. Nanu Ram Alias Chuhru Ram and Others (Civil Appeal No.9581/2018 D.D.18.09/2018) the petitioners being the parents are awarded Rs.80,000/ under the head Loss of filial consortium at the rate of Rs.40,000/ each.
25. Therefore, the petitioners are entitled for compensation as under: Sl. Head of Compensation Calculation Amount/Rs No Rs.
i. Monthly Income 13,00000
Future Prospects at 5,20000
40%
18,20000
ii Deduction of 50% 18,20000
income of the deceased 9,10000
towards personal 9,10000
expenses
iii Annual income of the 9,100x12
deceased 1,09,200
iv Compensation after 1,09,200x18 19,65,60000
multiplier applied
SCCH-1 18 MVC No.5825/2019
v Loss of estate 15,00000
vi Funeral expenses 15,00000
vii Loss of filial 80,00000
consortium
TOTAL Rs. 20,75,60000
26. Thus, the petitioners are awarded
compensation of Rs.20,75,600/ with interest at 6% p.a. from the date of petition till realisation.
27. The learned Advocate for respondent No.1 vehemently argued that as per evidence of RW2 , it is clear that driver of the crane was possessing licence to drive L.M.V., M.C.W.G. and Transport Vehicles. During the course of evidence of RW2, he has deposed that the Transport vehicle licence is sufficient to drive the crane.
28. The learned Advocate for respondent argued that unladen weight of the crane is more than 7500 k.g., therefore, it cannot be considered as L.M.V.and SCCH-1 19 MVC No.5825/2019 the driver should possess separate driving licence to drive the crane.
29. From Ex.R.4, R.C. of the crane , it is clear that unladen weight of the crane is 10555 k.g., therefore, crane will not come under the category of L.M.V.. Now the question is whether possessing of licence to drive transport vehicle is sufficient or not is to be seen.
30. The same fact was considered by the Hon'ble High Court of Karnataka in M.F.A.No.10721/2013 C/w.M.F.A.No.10721/2013 (M/s.BSCPL Infrastructure (Pvt.) Ltd. Vs. Sri Muniraju and another). His Lordship held that in that case also the mobile crane was involved , the driver has got L.M.V. and H.T.V. only and Lordship held that it cannot be hold that he has possessed valid driving licence.
31. Considering the specific contention taken by the insurance company his Lordship considers that SCCH-1 20 MVC No.5825/2019 liability of the insurance company with reference to offending vehicle is heavy vehicle and it requires a special category of driving licence that was not possessed by the driver . In para No.14 of the said judgment his Lordship reproduced the portion of the judgment of the tribunal which reads as under: "He deposed that the driver by name Ramasingh Singh, S/o.Padarath Singh had no valid and effective driving licence to drive the Mobile Crane which a motor vehicle of a specified description on the date of accident on 18.10.2012. In fact, the driver was to authorised to drive the LMV, HTV only and had no licence to drive the mobile crane under FDL No.75535/89/PE dated 28.02.1989 valid upto 25.05.2014. As per the above driving licence particulars the driver was not possessing valid and effective driving licence to drive the mobile crane which is a hydraulic mobile crane and which is a special vehicle with specified description at the time of the accident as per Section SCCH-1 21 MVC No.5825/2019 10(2)(J) of M.V.Act 1988 for special type of vehicle and as such the owner of the vehicle has violated the terms and conditions of the policy by allowing the person who did not possess the valid and effective driving licence to drive the crane. Hence, owner is liable to pay compensation to the petitioner and produced copy of the policy with conditions at Ex.R.2 and driving licence extract at Ex.R.3".
32. In answering whether the possession of LMV, HTV driving licence is sufficient for driving the crane is considered by his Lordship by referring the judgments of the Hon'ble Apex Court judgment of Hon'ble Apex Court 2014(1)SCC 244 (Kishan Gopal Vs. Lal) his Lordship has held that there is no need of special driving licence to drive the crane. In para No.18 of the said judgment his Lordship has held as under:
"A bare reading of the licence Ex.P.25 as such and the arguments advanced by SCCH-1 22 MVC No.5825/2019 learned Counsel for the Insurance Company in both the cases regarding a valid and proper licence, cannot be accepted and the licence is deemed to be a proper and valid one".
33. In this case driver of the crane was having the Transport vehicle licence which was valid as on the date of accident. Therefore, it cannot be said that the driver of the vehicle had no valid and effective driving licence. There is no need to possess special category of licence for crane operation.
34. Therefore, respondent No.1 being the insurance company, respondent No.2 being the owner are jointly and severally liable to pay the compensation. However, the primary liability to pay the compensation amount is fixed on the respondent No.1 Insurance Company and it is directed to pay the compensation amount within two months from the SCCH-1 23 MVC No.5825/2019 date of this order. For the above said reasons, Issue No.3 is answered accordingly.
35. Issue No.4 : In view of the discussions made above, I proceed to pass the following: ORDER The petition filed by the petitioners is allowed in part against the respondents.
The petitioners are entitled for compensation of Rs.20,75,600/ with interest at the rate of 6% per annum from the date of petition till realisation.
The respondents No.1 and 2 are jointly and severally liable to pay the compensation amount with interest. However, the primary liability to pay the compensation amount is fixed on the respondent No.1 Insurance Company and it is directed to pay the compensation amount within two months from the date of this order.
SCCH-1 24 MVC No.5825/2019
The compensation amount is apportioned between the petitioners equally.
Out of the compensation amount apportioned in favour of the petitioners No.1 and 2 , 50% each with proportionate interest is ordered to be invested in high yielding fixed deposit in their respective names in any of the nationalized or scheduled bank of their choice for a period of 5 years. Remaining 50% each with proportionate interest is ordered to be released to the petitioners No.1 and 2 under proper identification.
Advocate's fee is fixed at Rs.1,000/ . Draw an Award accordingly.
(Dictated to the Stenographer , transcribed by her, corrected, signed and then pronounced by me in the Open Court on this the 27th day of April 2022) (PRABHAVATI M.HIREMATH) Chief Judge, Court of Small Causes & Member, Prl. M.A.C.T. Bangalore.
SCCH-1 25 MVC No.5825/2019ANNEXURES Witnesses examined on behalf of the petitioners:
P.W.1 : Ramprasad Kushwaha Documents marked on behalf of the petitioners:
Ex.P1 : Copy of FIR Ex.P.2 Copy of complaint Ex.P.3 Copy of spot panchanama Ex.P.4 Copy of Spot Sketch Ex.P.5 Copy of IMV Report Ex.P.6 Copy of Inquest panchanama Ex.P.7 Copy of P.M. Report Ex.P.8 Copy of Charge sheet Ex.P.9 to Aadhaar Cards of petitioners and 11 deceased
Witnesses examined on behalf of the respondents :
RW1 Savitha RW2 Satish B.S.
Documents marked on behalf of the respondents:
Ex.R.1 Authorization letter Ex.R.2 Copy of policy Ex.R.3 Copy of R.C. Ex.R.4 Copy of driving licence of Umar Farooq ( PRABHAVATI M.HIREMATH) Chief Judge, Court of Small Causes & Member, Prl. M.A.C.T. Bangalore.