Bangalore District Court
Sri. Balram Rout vs Prop. S. Madhu on 17 February, 2021
SCCH-21 1 MVC No.5330/18
IN THE COURT OF XVII ADDL. JUDGE, COURT OF
SMALL CAUSES, & MEMBER, M.A.C.T,
MAYO HALL UNIT, BENGALURU (SCCH21)
Dated this the 17th Day of February 2021
PRESENT: Smt. VANI A. SHETTY, B.A. Law L.L.B,
XVII ADDL. JUDGE, Court of Small
Causes & Member, M.A.C.T.
Bengaluru.
M.V.C. No.5330/18
Petitioner/s: 1. Sri. Balram Rout,
S/o. Jogendra Rout,
Aged about 50 years.
2. Smt. Padmini Rout,
W/o. Balram Rout,
Aged about 43 years.
3. Kum. Sunanda Rout,
D/o. Balram Rout,
Aged about 21 years.
All are R/at:
Anandvihar,
Jagrutivihar, Burla,
Sambalpur,
Odisha - 768020.
(By Sri. M.Subramani, Advocate)
Vs
Respondent/s: 1. Prop. S. Madhu,
Mahalakshmi Blue Metal,
No.748/2, Vasuki Complex,
1st Floor, Sarjapura Road,
SCCH-21 2 MVC No.5330/18
Attibele, Anekal Taluk,
Bangalore - 562107.
Owner of the tipper Lorry bearing Reg.No.KA
51C8452.
(Exparte)
2. Royal Sundaram Alliance Insurance
Company Ltd.,
No.30, 3rd Floor, JNR City Centre,
Rajaram Mohan Roy Road,
Sampangirama Nagar,
Bangalore - 27.
(Policy No. VGC0484201000100
Valid from 19.11.2017 to 18.11.2018)
(Sri. Ravi S.Samprathi, Advocate)
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JUDGMENT
The petitioners have filed this petition under Section 166 of the Motor Vehicles Act, 1989, claiming compensation of Rs.1,00,00,000/ from the respondents with regard to the death of Prakash Chandra Rout in the road traffic accident that took place on 30.08.2018.
2. The brief facts of the case of the petitioners as follows:
On 30.08.2018 at about 00.35 a.m., while the deceased Prakash Chandra Rout was proceeding in the motor cycle bearing Reg. No. KA03JQ7233, in front of Safal market, KadugodiHoskote main road, Bengaluru, the driver of Tipper SCCH-21 3 MVC No.5330/18 Lorry bearing Reg. No. KA51C8452 by driving it in a rash and negligent manner, dashed against the motor cycle of the deceased, caused the accident and as a result, Prakash Chandra Rout succumbed to the injuries on the spot. Immediately, the deceased was shifted to Vydehi hospital and after the post mortem, the dead body was handed over to the petitioners and they have performed the last rites and obsequies and spent Rs.3,50,000/ towards funeral expenses.
3. It is pleaded by the petitioners that the deceased was aged about 24 years at the time of accident and he was working as Software Engineer at Capgemini, Divyashree Tech Park, Whitefield, Bengaluru and earning Rs.3,50,000/ per annum. The deceased was the only bread earner of his family and due to his death, the petitioners are undergoing mental shock and agony and facing great financial difficulties. It is stated that the accident in question was due to the rash and negligence on the part of the driver of the offending Tipper lorry bearing Reg. No. KA51C8452. Hence, the 1st respondent being the owner and 2nd respondent being the insurer of the offending vehicle are jointly and severally liable to pay the compensation.
4. On service of notice, the respondent No.2 entered its appearance through its learned counsel and filed the objection statement. Inspite of service of notice, the respondents No.1 has not appeared before the court and hence, he was placed exparte.
SCCH-21 4 MVC No.5330/185. The 2nd respondent in its objection statement has denied all the petition averments and contended that the petition itself is not maintainable either on facts or law. It has denied the age, income and occupation of the deceased. It has also denied the amount spent towards the funeral expenses of the deceased. The respondent No.2 has also denied the alleged negligence of the driver of the Tipper lorry bearing Reg. No. KA 51C8452 and contended that the accident has occurred due to the negligence on the part of the deceased as he was riding his motor cycle in a rash and negligent manner and while trying to overtake the Tipper lorry, dashed against the hind portion of the said lorry and caused the accident. The 2 nd respondent has further contended that the driver of the Tipper lorry bearing Reg. No. KA51C8452 was not holding driving license at the time of the accident. The respondent No.2 admits the issuance of policy in respect of the lorry bearing Reg. No.KA51C8452 and contended that its liability is subject to the terms and conditions of the policy. The 2nd respondent has further contended that the compensation and interest claimed by the petitioners are excessive and exorbitant. Hence on all these grounds, the respondent No.2 has sought for dismissal of the petition.
6. Based on the pleadings, the following issues are framed: ISSUES
1. Whether the petitioners prove that on 30.08.2018 at about 00.35 a.m., while the deceased Prakash Chandra Rout was proceeding in the motor cycle SCCH-21 5 MVC No.5330/18 bearing Reg. No. KA03JQ7233, in front of Safal market, KadugodiHoskote main road, Bengaluru, the driver of Tipper Lorry bearing Reg. No. KA51C 8452 by driving it in a rash and negligent manner, dashed against the motor cycle of the deceased, caused the accident and as a result, the deceased succumbed to the injuries on the spot as alleged by them?
2. Whether the petitioners are entitled for compensation? If so, to what amount and from whom?
3. What order or award?
7. In order to prove the case, the 3 rd petitioner got examined herself as PW1 and one witness as PW.2 and got marked 23 documents as per Ex.P1 to 23. On the other hand, 2nd respondent has got examined one witness as RW.1 and got marked Ex.R1 and 2 documents.
8. Heard the arguments.
9. My findings on the above issues as under: Issue No.1 ... In the affirmative, Issue No.2 ... Partly in the affirmative, Issue No.3 ... As per final order For the following:
REASONS
10. Issue No.1: As per the case of the petitioners, on 30.08.2018 at 00.35 a.m. while deceased Prakash Chandra Rout was riding the motor cycle bearing Reg. No.KA03JQ7233 along with pillion rider Mr. Venkatesh Nallabati on Kadugodi SCCH-21 6 MVC No.5330/18 Hoskote Main road from Capgemini towards Golden Bloosum Apartment, the driver of the Tipper lorry bearing Reg. No. KA51 C8452 came behind the motor cycle in a rash and negligent manner and hit to the motor cycle from its backside and consequently, the pillion rider fell down to the left side and the deceased rider of the motor cycle fell down to the right side. The offending tipper lorry rammed and dragged for about 100 meters, which resulted in the death of the rider of motor cycle. The respondent No.2 while admitting the incident, has contended that the accident occurred due to the contributory negligence of the deceased.
11. I have carefully examined the entire evidence on record. The petitioners have stated that the offending tipper lorry hit to the motor cycle from its backside. The respondent No.2 has contended that the deceased was trying to over take the lorry from its left and in that process, dashed against the hind portion of lorry and caused the accident. The pillion rider of motor cycle Mr. Venkatesh Nallabati has lodged the first information statement within one hour of the accident. In the statement, he has clearly narrated the manner of the accident at an earliest point of time. The Investigating Officer visited the spot and prepared the spot mahazar. It is an undisputed fact that after the accident, the offending lorry dragged the deceased for about 100 meters. If the motor cycle had hit the lorry to its left side, the lorry could not have dragged the deceased to such a long distance. The very fact that even after the accident, the offending lorry moved for 100 meters by dragging the deceased SCCH-21 7 MVC No.5330/18 very clearly indicates that the driver of the lorry was driving the lorry in a very high speed without noticing the movement of the motor cycle. If the driver of the lorry was cautious, certainly he would have stopped the vehicle immediately after the accident. It is very strange that the driver of the lorry has failed to stop the vehicle even after the accident. Therefore, the scene of occurrence as noted by the investigating officer is sufficient to come to the conclusion that the accident occurred due to the grave and culpable negligence committed by the driver of the offending lorry. After the investigation, the investigating officer has filed charge sheet against the driver of the offending lorry concluding that the accident was occurred only due to his negligence. There is no reason to take a different view. Therefore, I hold that the accident was occurred only due to the rash and negligent act of driver of the offending lorry bearing Reg. No. KA51C8452. Hence, I answer Issue No.1 in the Affirmative.
12. Issue No.2: While answering issue No.1, I have already observed that the death of Prakash Chandra Rout was occurred due to rash and negligent driving by the driver of offending Tipper lorry bearing Reg. No. KA51C8452. Therefore, the petitioners are entitled for the compensation. The petitioners are stated to be the parents and sister of the deceased.
13. The petitioners have stated that the deceased was working as Software Engineer at Capgemini, Divyashree Tech SCCH-21 8 MVC No.5330/18 Park, Whitefield road, Bengaluru and earning Rs.3,50,000/ per annum. In order to prove the said contention, the petitioners have examined the Program Manager of Capgemini Company as PW.2 and he has produced the salary slips for the month of January 2018 to August 2018 of the deceased at Ex.P23. As per Ex.P23 the salary for the month of August 2018, the gross income of the deceased was Rs.27,860/ and after deduction of professional tax of Rs.200/, it comes to Rs.27,660/. Therefore, the yearly income of deceased was Rs.3,31,920/(27,660x12). The deceased was liable to pay income tax on the income earned by him excluding the savings. The pay slip for the month of August 2018 shows that his monthly savings was Rs.1,166/ towards provident fund. The petitioners have not produced any materials to show any other savings of the deceased. Therefore, out of the taxable income of Rs.3,31,920/, when savings of Rs.13,992/ per annum (Rs.1,166x12) is deducted, it comes to Rs.3,17,928/. Further, after deduction of an amount Rs.3,396/ towards the income tax out of Rs.3,17,928/, the annual income of the deceased comes to Rs.3,14,532/.
14. In view of principles laid down in the judgment of the Hon'ble Supreme Court rendered in the case of National Insurance Co., Ltd., vs. Pranay Sethi and others ((2017) 16 SCC
680), as deceased was below the age of 40 years and was on fixed salary, an addition of 40% of the actual salary towards future prospectus is to be considered. An addition of 40% on the SCCH-21 9 MVC No.5330/18 annual income of Rs.3,14,532/ comes to Rs.1,25,812.80. In total, it comes to Rs.4,40,344.80 (Rs.3,14,532+1,25,812.80).
15. The petitioners have contended that the deceased was aged 24 years at the time of accident. The petitioners have produced the notarized copy of Aadhaar card of the deceased as Ex.P13 which shows the date of birth of the deceased as 18.08.1994. The accident was occurred in the year 2018. Hence, age of the deceased at the time of accident was 24 years. Further, the Hon'ble Supreme Court in the case rendered in National Insurance Co., Ltd., vs. Pranay Sethi and others ((2017) 16 SCC 680) has held that, age of the deceased is basis for applying the multiplier. Hence, considering the age of the deceased, the multiplier applicable to the age of 24 years is 18. Since deceased was a bachelor, ½ of his income shall be deducted towards his personal and living expenses as observed in the decision of Hon'ble Supreme Court in Sarla Varma vs. Delhi Transport Corporation (2009 ACJ 1298). Hence, loss of dependency is Rs.39,63,103.20[4,40,344.80 /2=2,20,172.40x18].
16. Further, the petitioners have contended that they have spent Rs.3,50,000/ towards the funeral expenses. Though the petitioners claimed compensation towards funeral expenses, they have not given particulars of expenses. Hence, by relying upon the decision of the Hon'ble Apex Court rendered in the case of National Insurance Company Limited Vs. Pranay Sethi and ors (2017) 16 SCC 680), the petitioners are entitled for SCCH-21 10 MVC No.5330/18 Rs.15,000/ towards loss of estate and Rs.15,000/ towards funeral expenses. The petitioners No.1 and 2 are the parents and petitioner No.3 is the sister of the deceased and they have lost the love and affection of their son/brother. Hence, petitioners No.1 to 3 are entitled for Rs.10,000/ each towards loss of love and affection. The petitioners have not produced any medical bills and therefore, they are not entitled for compensation under the head of medical expenses.
17. The petitioners have admitted that the employer company has given personal accident insurance of Rs. 8 lakhs. The respondent No. 2 has contended that as the petitioners have got such benefit of Rs.8 lakhs, same should be adjusted and deducted from the total compensation to be awarded in this case. But the above personal accident insurance benefit was given to the petitioners by the employer of the deceased on the basis of the service rendered by the deceased to the company and that too by obtaining the contribution. Therefore, any other insurance coverage disbursed to the family members of the deceased cannot be adjusted towards the compensation to be awarded for the tortious liability imposed in a motor vehicle accident claim. In other words, the death benefits received by the petitioners cannot be part of the compensation under the motor vehicles act. Hence, the contention of respondent No.2 in this regard fails.
SCCH-21 11 MVC No.5330/1818. In total, the petitioners are entitled for the compensation under the following heads:
Head of Compensation Amount/Rs.
Loss of dependency 39,63,103.20
Compensation towards loss of 15,000.00
estate
Love and affection 30,000.00
Compensation towards funeral 15,000.00
expenses
Total 40,23,103.20
In all the petitioners are entitled for total compensation of Rs. 40,23,103.20.
19. As regard the apportionment of the compensation, petitioners No.1 and 2 are parents and petitioner No.3 is the sister of the deceased. Therefore out of the total compensation, the petitioners No. 1 to 3 are entitled for compensation at the ratio of 40:40:20.
20. The petitioners are claiming interest @ 9% p.a. on the compensation amount. The respondent No.2 has denied the same. Our Hon'ble High Court in the case rendered in Vijay Ishwar Jadhav and others Vs Ulrich Belchior Fernandes and another (MFA.No.100090/2014 C/W MFA.No.25107/2013 dated 07.03.2018), has held that in the absence of any other law relating to interest on judgments, the MACT has to follow the provisions of Sec.34 of C.P.C and awarded interest @ 6% p.a. SCCH-21 12 MVC No.5330/18 Considering the aforesaid decision, I deem it proper to award interest at 6% per annum on the above compensation amount.
21. Liability: Regarding the fixation of liability is concerned, I have already observed thatthe accident was taken place due to the negligence on the part of the driver of the tanker lorry bearing Reg. No. KA51C8452. It is not in dispute that 1 st respondent is the owner of the offending lorry. The respondent No.2 has admitted that the insurance policy was in force as on the date of accident. The respondent No.2 has not proved the breach of any of the policy conditions. Hence, the 2 nd respondent being the insurer and 1st respondent being the owner of the offending lorry are jointly and severally liable to pay the compensation. The 2nd respondent being the insurer shall indemnify the 1st respondent in payment of compensation amount. Accordingly, I answer Issue No.2 partly in the Affirmative.
22. Issue No.3: In view of my findings on issues No.1 and 2, I pass the following:
ORDER The petition is allowed in part with cost.
The petitioners are entitled for compensation of Rs.40,23,103.20(Forty lakhs twenty three thousand one hundred and three and twenty paise only) with interest at the SCCH-21 13 MVC No.5330/18 rate of 6% per annum from the date of petition till its realisation.
The respondents being the owner and insurer of the offending vehicle are liable to pay the compensation. The liability to pay the compensation is joint and several between the respondents. But, respondent No.2 shall indemnify the respondent No.1 and shall deposit the compensation amount within 30 days from the date of this order.
Out of the total compensation amount, the petitioners No.1 to 3 are entitled for compensation at the ratio of 40:40:20 respectively and on deposit of the compensation amount, 50% shall be released in the share of the petitioners No.1 to 3 and remaining 50% of the share amount shall be deposited for a period of 5 years in any nationalized bank in the name of petitioners No.1 to 3 with liberty to them to draw the periodical interest.
Advocate's fee is fixed at Rs.1,000/.
Draw award accordingly.
(Dictated to the Stenographer directly on computer, typed by her, corrected, signed and then pronounced by me in the open court dated this the 17 th day of February 2021) (VANI A. SHETTY) XVII Addl. Judge, Court of Small Causes & Member MACT, Mayo Hall Unit, Bengaluru.SCCH-21 14 MVC No.5330/18
ANNEXURES Witnesses examined on behalf of the petitioners:
P.W.1 : Sunanda Rout P.W.2 : Ranjan Lasarus
Documents marked on behalf of the petitioners:
Ex.P.1 FIR
Ex.P.2 First Information Statement
Ex.P.3 Spot Mahazar
Ex.P.4 Sketch
Ex.P.5 Inquest report
Ex.P.6 IMV report
Ex.P.7 Post Mortem report
Ex.P.8 & 9 Marks Cards of deceased
Ex.P.10 Pass certificate of deceased
Ex.P.11 N/c. of statement of marks of deceased
Ex.P.12 C/c. of Employment letter of deceased
Ex.P.13 Notarized copy of Adhaar card of deceased
Ex.P.14 Notarized copy of driving license of deceased
Ex.P.15 Notarized copy of Adhaar card of petitioner No.3
Ex.P.16 Green card of petitioner No.2
Ex.P.17 and Notarized copy of BE Marks card and Grade
18 sheets
Ex.P.19 and N/c. of Adhaar cards of petitioners No.1 and 2
20
Ex.P.21 N/c. of ID card of PW.2
Ex.P.22 Offer letter
Ex.P.23 Salary slip January to August 2018
SCCH-21 15 MVC No.5330/18
Witnesses examined on behalf of the respondents:
R.W.1 : Kemparaju Documents marked on behalf of the respondents:
Ex.R.1 : Charge Sheet
Ex.R.2 : DL details
(VANI A. SHETTY)
XVII Addl. Judge, Court of Small
Causes & Member MACT,
Mayo Hall Unit, Bengaluru.
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SCCH-21 16 MVC No.5330/18