Bangalore District Court
) G.N.Kammar @ Guddappa vs ) Mohammed Khizer on 17 June, 2015
BEFORE THE MEMBER PRL.MOTOR ACCIDENT CLAIMS
TRIBUNAL AT BANGALORE
(S.C.C.H. - 1)
DATED THIS THE 17th DAY OF JUNE'2015
PRESENT : SRI H.P.SANDESH, B.A.L., LL.B,
MEMBER, PRL. M.A.C.T.
MVC No.1473/2014
Petitioners: 1) G.N.Kammar @ Guddappa
Neelappa Kammar,
S/o.Late Neelappa @ Neelappa
Kammar,
Aged about 61 years,
2) G.K.Shri Harsha,
S/o.G.N.Kammar,
Aged about 29 years,
Both are permanently R/at
No.30,
1st Cross, 2nd Stage,
Vinobhanagara, Shivamoga,
Presently R/at
No.145, 1st Main Road,
5th Cross, Kumaraswamy
Layout,
Bangalore - 78.
(By Sri G.C.Rajesh, Advocate)
Vs.
Respondents: 1) Mohammed Khizer,
S/o.R.M.Sultan,
No.44/3, 2nd Main Road,
2nd Cross, LIC Colony,
Jayanagara 3rd Block,
Bangalore - 11.
(R.C.Owner of Tipper Lorry
bearing
Reg.No.KA.05/AB.6521)
SCCH 1 2 MVC No.1473/2014
2) ICICI Lombara General
Insurance Co., Ltd.,
No.8, 9, 2nd Floor,
S.V.R.Complex, Hour Main
Road,
Madiwala, Bangalore.
Policy No.3003/A/I-
19952023/00/000,
Period 27.08.2013 to
26.08.2014.
(Respondent No.1 - Sri Shivakumar
S.Naregal, Advocate
Respondent No.2 by Sri H.N.Keshava
Prashanth, Advocate)
JUDGMENT
The petitioners have filed this petition under Section 166 of the of the Motor Vehicles Act, 1989 claiming compensation of Rs.60 lakhs with regard to the death of Smt.Gangamani in the road traffic accident that occurred on 14.03.2014 at about 03.00 pm., opposite Government School, Thalaghattapura, Uttarahalli Hobli, Bengaluru South.
2. Brief facts of the case are that:-
It is the case of the petitioners that the first petitioner is the husband and the second petitioner is the son of deceased Smt.Gangamani.
3. It is the case of the petitioners that on 14.03.2014, the deceased Smt.Gangamani was traveling on motorcycle bearing registration No.KA.05/HN.3955 as pillion rider. The said motorcycle was driven by the first petitioner slowly and cautiously by observing the traffic rules. While proceeding so, when they reached near Government High School, Thalaghattapura, Uttarahalli Hobli, Bengaluru South, at that time, a SCCH 1 3 MVC No.1473/2014 tipper lorry bearing registration No.KA.05/AB.6521 came from behind, driven by its driver in rash and negligent manner and dashed against the motorcycle, on which the first petitioner and his wife Smt.Gangamani were proceeding and due to the impact, said Gangamani suffered severe head injuries and died on the spot. Immediately after the accident, the dead body of Smt.Gangamani was shifted to Rajarajeshwari Hospital, Bengaluru wherein postmortem was conducted and thereafter the petitioner performed funeral and obsequies by incurring Rs.2 lakhs.
4. It is contended that deceased Gangamani was an LIC Agent apart from teaching music and earning Rs.50,000/- per month and she was contributing her entire income to the family. On account of the death of Smt.Gangamani in the accident, the petitioners have lost their source of income. Deceased Smt.Gangamani was aged 56 years at the time of her death and she was hale and healthy and the first petitioner has lost the company of his wife and the petitioners have claimed compensation of Rs.60 lakhs on different heads from the respondents No.1 and 2, who are the owner and insurer of the tipper lorry, which caused the accident.
5. In pursuance of filing of the petition, both the respondents appeared through their respective counsel and filed statement of objections.
6. The first respondent in the statement of objections, has denied the averments made out in the petition, as false, frivolous and baseless. It is contended that the averments made out in petition column No.1 and 22 are not within the knowledge of the respondent No.1. The respondent No.1 has called upon the petitioners to prove the occurrence of the accident. It is further contended that the petitioners are neither necessary parties nor they are entitled to claim compensation. The SCCH 1 4 MVC No.1473/2014 averment of column No.22 of the petition to the effect that the accident is on account of the rash and negligent driving of the tipper lorry by its driver is false. It is contended that the accident has occurred on account of the rash and negligent riding of the motorcycle by its rider. The respondent No.1 has denied the age, avocation and income of the deceased and also the manner in which the accident has occurred and the resultant death of the deceased and the amount spent by petitioners for funeral and obsequies. The driver of the tipper lorry never driven the same in rash and negligent manner nor he is responsible for the accident and while he was driving the same slowly and cautiously, the rider of the motorcycle due to his negligence caused the accident. At the time of accident, the driver of the tipper lorry had valid driving licence and the vehicle was covered with valid insurance policy. The amount of compensation is highly excessive and irrational and hence, the respondent No.1 prays the Court to reject the petition.
7. The respondent No.2 has filed statement of objections by contending that the claim petition is not maintainable. The respondent No.2 states that it has issued a Policy of Insurance in respect of the Tipper Lorry No.KA.05/AB.6521 and the original of the said policy is with the respondent No.1. It is further contended that the liability is subject to terms and conditions of the policy. The respondent No.2 has also taken statutory defence in the statement of objections, contending that the owner of the tipper lorry knowingly entrusted the vehicle to a person who has no valid and effective driving licence to drive the vehicle in question, in violation of the policy conditions. It is further contended that the vehicle was being used without valid Fitness Certificate and Permit and hence, the respondent No.2 is absolved from payment compensation to the petitioners.
SCCH 1 5 MVC No.1473/2014
8. The respondent No.2 has taken general defence under Sections 136(c), 147, 149 and 158(6) of the MV Act.
9. Regarding the averments made in the petition, the respondent No.2 has contended that the averments made out in para No.22 of the claim petition to the effect that the tipper lorry was being driven in a rash and negligent manner has been denied as false and the respondent No.2 has put the petitioners to strict proof of the same. The respondent No.2 does not admit that the tipper lorry was involved in the accident nor it was driven in a rash and negligent manner. The respondent No.2 contends that it does not know that the deceased was aged 56 years and working as an LIC Agent and also as Music Teacher and earning Rs.50,000/- per month. The respondent No.2 has also denied the manner in which the accident has occurred resulting in the death of Smt.Gangamani on account of the rash and negligent driving of the tipper lorry by its driver and put the petitioners to strict proof of the same. It is contended that there is no negligence on the part of the driver of the tipper lorry in occurrence of the accident, since he was driving the lorry slowly and cautiously on the correct side of the road. The unfortunate accident has occurred due to the negligence of the rider of the motorcycle. It is contended that the compensation in a sum of Rs.60 lakhs claimed by the petitioners is very high, exorbitant and excessive. Hence, the respondent No.2 has prayed the Court to reject the petition as against the respondent No.2.
10. Based on the above pleadings of the parties, the following issues are framed:-
1) Whether the Petitioners prove that the deceased succumbed to injuries in a Motor Vehicle Accident that occurred on SCCH 1 6 MVC No.1473/2014 14.03.2014 at about 03.00 pm., opposite Government School, Thalaghattapura, Uttarahalli Hobli, Bangalore South, within the jurisdiction of Thalaghattapura Police Station on account of rash and negligent driving of the tipper lorry bearing registration No.KA.05/AB.6521 by its driver?
2) Whether the respondent No.2 proves that the accident occurred on account of negligent act of the deceased?
3) Whether the Petitioners are entitled for compensation? If so, how much and from whom?
4) What Order or Award?
11. In order to substantiate their case, on behalf of the petitioners', the first petitioner has been examined as PW 1 and through his evidence, as many as 28 documents are got marked as Ex.P.1 to P.28. On the other hand, the respondent No.1 has been examined as RW 1 and through his evidence, as many as 7 documents are marked as Ex.R.1 to R.7.
12. Heard the arguments of the counsel for petitioners as well as counsel for the respondents.
13. Having heard the arguments, based on the pleadings and the evidence available on record, I record my findings on the above issues as under:-
1) In the affirmative,
2) In the negative,
3) Partly in the affirmative,
4) As per final order, REASONS
14. Issue No.1 and 2:- Since both these issues are interconnected 4to each other and the evidence is likely to overlap, both these issues are taken up for discussion together.
SCCH 1 7 MVC No.1473/2014
15. The petitioners' in order to substantiate their case examined the first petitioner as PW 1 and through his evidence, Exhibits P.1 to P.28 came to be marked.
16. It is the case of the petitioners' that on 14.03.2014, at about 03.00 pm., the deceased Smt.Gangamani and the petitioner No.1 herein were proceeding on motorcycle bearing registration No.KA.05/HN.3955 on Kanakapura Bengaluru Road as pillion rider and rider respectively and while proceeding so, when they came near Government High School, Thalaghattapura, Uttarahalli Hobli, Bengaluru, the tipper lorry No.KA.05/AB.6521 came from behind in rash and negligent manner and dashed against their motorcycle and in the accident, Smt.Gangamani having suffered grievous injuries, succumbed to the same at the spot. Thus, it is the contention of the petitioners that the accident has occurred solely on account of rash and negligent driving of the tipper lorry by its driver. It is relevant to mention here that PW 1 is an eyewitness to the accident, since he was riding the motorcycle at the time of accident and hence, his evidence gains importance. PW 1 has been cross-examined by the counsel for the respondents. In his cross-examination, it is elicited that he was riding the motorcycle and that he is having driving licence and he has produced the same before the Court. It is further elicited from him that the tipper lorry came from behind and dashed against his motorcycle as a result, he fell down on the left side of the road and his wife fell on the right side and the lorry passed over his wife. He admits that Ex.P.5 Sketch is correctly drawn, wherein the spot of accident is shown to be on the left side of the road. It is suggested to him that the tipper lorry came in a slow manner and the said suggestion has been denied by him.
SCCH 1 8 MVC No.1473/2014
17. Apart from the evidence of PW 1, the petitioners have also produced Ex.P.1 FIR and complaint, Ex.P.2 Spot Panchanama, Ex.P.4 IMV Report, Ex.P.5 Spot Sketch, Ex.P.6 Inquest Panchanama,Ex.P.7 - PM Report and Ex.P.8 Charge Sheet. If we go through Ex.P.1 FIR and Complaint, it clearly goes to show that the lorry came from behind and dashed against the motorcycle, on which complainant and his wife were proceeding. The Police after investigation, filed charge sheet against the driver of the lorry for the offence punishable under Sections 279, 337, 304(A) 188 IPC read with Section 180 and 181 of MV Act. The Sketch Ex.P.5 clearly depicts that the spot of accident is on the left side of the road.
18. As against the same, the respondents in the statement of objections having disputed the manner in which the accident has occurred and having denied the negligence on the part of the driver of the lorry in occurrence of the accident, have not placed on record any material to substantiate the same. Even though the respondent No.1 has been examined as RW 1, his evidence is silent on the manner in which the accident has occurred and regarding the negligence of the driver of the tipper. His evidence is concentrated on the aspect of the lorry having valid insurance, permit and fitness certificate at the time of accident.
19. Thus, the evidence of PW 1, who is an eye witness to the accident, coupled with Ex.P.1 to P.7 make it abundantly clear that the accident has occurred on account of rash and negligent driving of the tipper lorry by its driver, in as much as, the tipper lorry after having come from backside, dashed against the motorcycle, on which the deceased and petitioner No.1 were traveling and in the accident, Smt.Gangamani having sustained injuries, died on the spot. The respondents No.1 and 2 having contended that the accident has occurred SCCH 1 9 MVC No.1473/2014 due to the negligence of the rider of the motorcycle, have not established the same by leading cogent evidence. Accordingly, issue No.1 is answered in the affirmative and issue No.2 is answered in the negative.
20. Issue No.3:- This issue relates to the claim of compensation regarding the death of Smt.Gangamani in the accident. It is the case of the petitioners in the petition that at the time of the accident, the deceased Smt.Gangamani was aged 56 years and was doing LIC Agency apart form teaching music and earning Rs.50,000/- per month. It is further contended that the deceased was contributing her income towards the maintenance of the family and she was the sole earner in the family. In support of these pleadings, the petitioner No.1, who is the husband of the deceased, filed an affidavit before the Tribunal reiterating the petition averments. In order to substantiate the age and avocation of the deceased, the petitioners have produced Ex.P.14 - Certificate issued by the LIC of India, Shimoga Unit I and Ex.P.15 - Licence issued by Insurance Regulatory and Development Authority (IRDA) to show that the deceased was working as LIC Agent since 1989. So far as the age of the deceased is concerned, the petitioners have produced Ex.P.17 Income Tax Returns for the period from 2003-04 to 2013-14. The respondents No.1 and 2, even though denied the age and avocation of the deceased, but these documents unambiguously show the date of birth of the deceased as 17.07.1956 and the accident in question has occurred on 14.03.2014 and thus, as on the date of accident, the deceased was running 58 years.
21. In order to prove the income of the deceased, as discussed above, the petitioners have produced Ex.P.17 IT returns for the period from 2003-04 to 2013-14 of the deceased. Source of income of the deceased in these returns is shown to be Commission ie., the SCCH 1 10 MVC No.1473/2014 Commission received by the deceased from her LIC Agency. Income of the deceased for the year 2003-04 is shown as Rs.64,507/-, for the year 2004-05, it is Rs.67,715/-, for the year 2005-06, it is Rs.70,152/-, for the year 2006-07, it is Rs.1,05,332/-, for the year 2008-09 it is Rs.1,32,580/- , for the year 2009-10, it is Rs.1,25,132/-, for the year 2010-11, it is Rs.1,48,410/-, for the year 2011-12, it is Rs.1,33,000/- and for the year 2013-14, it is Rs.1,36,620/-. Thus, from a perusal of these IT returns, one can see that for the first two years, the commission went on increasing and then, it has been reduced and again, it went on increasing and again there is reduction. Hence, it can be said that the income of the deceased was depending on her business in LIC Agency. Even though the petitioners have contended that the deceased was receiving more than Rs.50,000/- as commission from her LIC Agency and from her Music Teaching Profession, but a perusal of the documents produced by them in support of their contention such as IT Returns does not justify their contention. Hence, I deem it just and proper to take her income, on an average, at Rs.9,000/- per month.
22. In view of the principles liaddown in the judgment reported in 2013 ACJ 1403 (Rajesh Vs. Rajbir Singh), the Apex Court held that even if a person is self employed, loss of future prospects has to be taken into consideration and hence, as the deceased was aged 58 years at the time of accident, 15%, from out of her income, has to be taken as loss of future prospects, which works out to Rs.1,350/- and thus the total works out to Rs.10,350/- per month.
23. Since the age of the deceased was 58 years at the time of accident as discussed above, the multiplier applicable to the case on hand is 9.
SCCH 1 11 MVC No.1473/2014
24. As seen from the cause title to the petition, the deceased has left behind by her husband and a son. Thus, 1/3rd out of her income has to be given deduction from her income of Rs.10,350/- towards the personal expenses of the deceased had she been alive, which comes to Rs.3,450/-. Thus, the annual loss of dependency works out to Rs.6,900/- X 12 = 82,800/- and if we multiply the said amount by the 9 multiplier applicable to the case on hand, it works out to Rs.7,45,200/-, to which the petitioners are entitled to under the head loss of dependency.
25. Though the petitioners claim in the petition that they have spent Rs.2,00,000/- for medical expenses and other incidental charges towards the deceased, but nothing is whispered in the evidence of PW 1 nor the petitioners have produced any documents in this regard.
26. The Apex Court, in the case reported in 2013 ACJ 5800 (Sanobanu Nazirbhai Mirza Vs. Ahmedbad Municipal Transport Service) and also in the recent judgment reported in AIR 2014 SUPREME COURT 706 (Puttamma Vs. Narayana Reddy) awarded Rs.1,00,000/- as compensation to the family members (children and family members other than wife or husband) for loss of love, Rs.50,000/- towards loss of love and affection to the husband of the deceased and Rs.10,000/- towards cost incurred on account of funeral and ritual expenses. In this case also, since the deceased has left behind her son, I deem it proper to award Rs.1,00,000/- as compensation to the family members (children and family members other than wife/husband) for loss of love and affection, deprivation of protection, social security etc., Rs.50,000/- to the petitioner No.1 who is the husband of the deceased for loss of love and affection and Rs.10,000/- towards cost incurred on account of funeral and ritual expenses.
SCCH 1 12 MVC No.1473/2014
27. The details of compensation I propose to award are as under:
Sl.No. Head of Compensation Amount/Rs
1 Loss of dependency 7,45,200.00
2 Compensation to the family members 1,00,000.00
(children and family members other
than wife) for loss of love and
affection, deprivation of protection,
social security etc.
3 Compensation to the husband for loss 50,000.00
of love and affection, deprivation of
protection, social security etc.
4 Cost incurred on account of funeral 10,000.00
and ritual expenses
Total 9,05,200.00
28. As regards the liability to be fixed on the respondents, as discussed above, the respondent No.1 is the owner and the respondent No.2 is the insurer of the vehicle, which fact is not disputed and even the respondent No.2 has admitted to have issued an Insurance Policy in respect of the vehicle in the name of the respondent No.1. However, it is contended by respondent No.2 that the vehicle had no valid Fitness Certificate and Permit and therefore, it is absolved from indemnifying the respondent No.1 and thereby paying compensation to the petitioners. In this regard, the respondent has examined himself as RW 1 and he has filed an affidavit in the form of examination in chief, wherein he has reiterated that he is the RC owner of the tipper lorry No.KA.05/AB.6521 and the said vehicle is insured in Policy No.3003/A/1-19952023/00/000 and that the driver of the said vehicle had valid and effective driving licence. He has produced copy of Registration Certificate, copy of Taxation Card, Copy of Insurance Policy, copy of Fitness Certificate, copy of Permit and the copy of the driving licence as Ex.R.1 to R.8. Perusal of these documents show that the vehicle had valid Fitness SCCH 1 13 MVC No.1473/2014 Certificate till 28.06.2014 and the accident occurred on 14.03.2014 and thus, there was a valid Fitness Certificate for the said vehicle. As far as permit is concerned, as per Ex.R.5 the respondent No.1 has obtained the same after the accident, which he admits in his cross-examination and therefore, the same is issued for the period from 23.02.2015 to 22.02.2020. Even if there was no permit as on the date of accident, it is a matter between the respondent No.1 and 2. The petitioners being the third parties, they cannot be made to suffer. Hence, I hold that the respondent No.1 being the owner and the respondent No.2 being the insurer, are jointly and severally liable to pay compensation to the petitioners.
29. In a case reported in (2011) 4 SCC 481 : (AIR 2012 SC 100) (Municipal Council of Delhi Vs. Association of Victims of Uphaar Tragedy), the Supreme Court has held that the Court has to take into account the rate of interest of the nationalized bank and the present day cost of living and thereby awarded, interest on the compensation amount at 9% p.a. I have no reasons to deviate from the said view of the Apex Court. Accordingly, interest on compensation amount is awarded at 9% p.a. Accordingly, issue No.3 is answered.
30. So far as apportionment of the compensation amount is concerned, petitioner No.1 is the husband and petitioner No.2 is the son of the deceased. Since petitioner No.2 being major, I deem it just and proper to apportion Rs.1,00,000/- to the son of the deceased towards loss of love and affection, deprivation of protection, social security etc., and the remaining compensation amount in favour of petitioner No.1.
31. Issue No.3: In the result I proceed to pass the following: -
SCCH 1 14 MVC No.1473/2014
ORDER
The petition filed by the petitioners is allowed in part.
The petitioners have been awarded compensation of Rs.9,05,200/- with interest at the rate of 9% per annum from the date of petition till realization from the respondents No.1 and 2 jointly and severally. The primary liability is fixed on the respondent No.2 Insurance Company, who shall pay the compensation amount within 2 months from the date of this order.
Compensation amount is apportioned as under:-
Petitioner No.1 - Rs.8,05,200/- Petitioner No.2 - Rs.1,00,000/- Having regard to the age of the petitioner No.1, entire compensation amount is ordered to be released to the respective petitioner's after the deposit is made by the respondent No.1.
Advocate's fee is fixed at Rs.1,000/-.
Draw an award accordingly.
(Dictated to the Judgment directly on computer, corrected, signed and then pronounced by me in the open court dated this the 17th day of June'2015) (H.P.SANDESH) Member, Prl. M.A.C.T. Bangalore ANNEXURE Witnesses examined on behalf of the petitioners:
P.W.1 : G.N.Kammar Witnesses examined on behalf of the respondents :
R.W.1 : Mohammed Khizeer SCCH 1 15 MVC No.1473/2014
Documents marked on behalf of the petitioners:
Ex.P-1 FIR Ex.P-2 Mahazar Ex.P-3 Vehicle Seizure Mahazar Ex.P-4 IMV Report Ex.P-5 Sketch Ex.P-6 Inquest Report Ex.P-7 PM Report Ex.P-8 Charge Sheet Ex.P-9 Notarised copy of Driving Licence Ex.P-10 Notarised copy of Election ID Card Ex.P-11 Notarised copy of election identity card of petitioner No.1 Ex.P-12 Notarised copy of election identity card of deceased Ex.P-13 Death Certificate Ex.P-14 Letter issued by LIC Ex.P.15 Licence issued by IRDA Ex.P.16 Intimation showing the commission received by deceased Ex.P.17 Income Tax Returns (9 in Nos) Ex.P.18 Form No.16 Ex.P.19 Bank Statement Ex.P.20 KSEEB Certificate Ex.P.21 Karnataka Music Examination Certificate Ex.P.22 GR International School Certificate Ex.P.23 Attested copy of ID Card Ex.P.24 Attested copy of Confirmation Letter Ex.P.25 Confirmation letter of petitioner No.2 Ex.P.26 Bank Statement Ex.P.27 Germany Bank Statement Ex.P.28 Attested copy of PUC Certificate SCCH 1 16 MVC No.1473/2014
Documents marked on behalf of the respondents:
Ex.R.1 Notarised copy of RC
Ex.R.2 Notarised copy of Taxation Card
Ex.R.3 Notarised copy of Insurance Policy
Ex.R.4 Notarised copy of Fitness Certificate
Ex.R.5 Notarised copy of Permit
Ex.R.6 Notarised copy of Green Tax Paid Receipt
Ex.R.7 Notarised copy of Driving Licence
(H.P.SANDESH)
Member, Prl. M.A.C.T. Bangalore