Bangalore District Court
Smt.Marry Josphine vs Liberty Gic Ltd on 13 April, 2023
SCCH-20 1 MVC No.4574/2022
KABC0B0011852022
BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL &
V ADDL. JUDGE SCCH-20, Mayo Hall Unit, Bengaluru.
Dated this the 13th day of April, 2023
Present: Smt.Sharmila C.S. BA.L., LL.M
V Addl. Small Causes Judge
& XXIV A.C.M.M., Member, M.A.C.T.,
Bengaluru.
MVC. No.4574/2022
PETITIONER: 1. Smt.Marry Josphine
W/o Late sebastine Patrick
Aged about 49 years,
2. Miss.Janifer.S
D/o Late sebastine Patrick
Aged about 25 years,
3. Mr.Marson David.S
S/o Late sebastine Patrick
Aged about 27 years,
All are residing at
Beereshwara Temple Road
Chunchaghatta Main road,
Near Carmel Jyothi School Road,
Bangalore - 560062.
SCCH-20 2 MVC No.4574/2022
(By Pleader Sri.B.S.Devarajau)
-V/s-
RESPONDENTS: 1.Liberty GIC Ltd.,
No.21/15, The Land Mark,
4th floor, near Trinity metro Station
M.G.Road,
Bangalore - 560001
2. Mr.Murugan.M
S/o Madaswamy,
R/at No.120, Flat No.501,
Teju Apartment,
Sarakii JP Nagar 1st phase,
Bangalore - 560078
(R1-By pleader Sri.Ravi.S.Samprathi
R1-Exparte )
JUDGMENT
This petition is filed seeking compensation of Rs.40,00,000/- with interest for the death of one Sebastine Patrick in Road Accident.
2. The averments of the petition are as follows; SCCH-20 3 MVC No.4574/2022 That the petitioners are the wife and children of the deceased Sebastine Patrick that on 29.07.2022 at about 01.45 PM., the said Sebastine Patrick was coming by walk and crossing the Sarakki main road, near JP nagar 1 st phase, Bangalore, from south to North on Zebra crossing, while the motor cycle bearing No.KA-05-KW-5758 driven by its driver came in a rash and negligent manner and caused the accident. That the said Sebastine Patrick fell down and sustained grievous injuries and was admitted to the Rajashekara Hospital for first aid and then to St.Johns medical and college center, Bangalore. But he succumbed to injuries on the next day of the accident. That the said deceased was aged 53 years and was working as driver and field worker and was earning Rs.30,000/- per month. That they spent more than Rs.3,00,000/- for final rites and obsequies ceremonies. That the petitioners are put to hardship and prays to grant compensation as sought for. SCCH-20 4 MVC No.4574/2022
3. The respondent denied the averments of the petition and also submits that there is negligence on the part of the petitioner in causing the accident. That the driver of the offending vehicle had no driving license. Thus prays to dismiss petition against the said respondent. Thus has sought for dismissal of the petition. The respondent No.2 did not appear and was placed exparte.
4. On basis of the Pleadings and materials, the following issues were framed.
ISSUES
1. Whether the petitioners prove that on 29.07.2022 at about 01.40 PM.,, husband of the 1st petitioner i.e., the deceased Mr.Sebastrine Patrick @ Patrick proceeding as a pedestrian while crossing Sarakki Main road, in front of mathrushree condiments, 13 cross road, UP nagar 1st phase, Bangalore. At that time rider of one SCCH-20 5 MVC No.4574/2022 motor cycle bearing No.KA-05/KW-
5758 rode the same in a rash and negligent manner so as to endangering human life, came at a high speed on wrong side and dashed to the deceased. As a result of forced impact, the deceased fell down and sustained grievous injuries and died in the hospital during the course of treatment?
2. Whether the petitioners are entitled for compensation? If so, to what amount and from whom?
3. What order or award?
5. In order to substantiate allegation, the petitioner no.1 got examined herself as P.W.1 and has produced 19 documents on her behalf. The respondent got examined two witnesses as RW-1 to RW-2 and got marked policy as Ex.R1.
6. Heard the arguments from the counsel for the petitioner and the counsel for the respondent and perused the materials placed before me.
SCCH-20 6 MVC No.4574/2022
7. My findings on the above points are as follows:
Point No.1 : Partly in the Affirmative, Point No.2 : Partly in the Affirmative Point No.3 : As per final order for the following:
REASONS
8. Issue No.1: In order to substantiate the allegation, the petitioner no.1 got examined herself as P.W.1 and has produced 19 documents on her behalf. She has produced copy of FIS as Ex.P.2, which is lodged by the petitioner No.3, son of the deceased, who is also not an eye witness, but hearsay witness, who was informed by an auto driver, in which the said injured was taken to hospital. The complaint was lodged on 30.07.2022 i.e., on the next day of the accident. The FIR is lodged as per Ex.P.1 alleging offences punishable under section 279, 304(A) of IPC along with Section 134 (B) of IMV Act against the driver of the offending vehicle by name Thalaiva. The police intimation shows the SCCH-20 7 MVC No.4574/2022 history of RTA, which is as per Ex.P.3, issued by the St Johns medical college hospital on 29.07.2022. The death intimation is marked as Ex.P.4, showing the death of the said Sebastine Patrick on 30.07.2022 at about 11.00 AM., The police information report by Rajashekar multi speciality hospital shows that the admissions was refused to the said Sebastine Patrick who has met with an accident near Sarakki circle, JP Nagar. The spot panchanama and Sketch are produced as Ex.P.5 and P.6 respectively, depicting the place of accident at Zebra crossing near signal and at divider, where the alleged offending vehicle is shown to have come from the opposite direction. The Inquest report and PM report are marked as Ex.P.8 and P.9., where the opinion as to the cause of death is given as due to "intracranial hemorrhage", as a result of head injury. The MVA report shows no visible mechanical defects to the said vehicle. A notice is issued as per Ex.P.13 to the owner of the vehicle, as contemplated under section 133 of SCCH-20 8 MVC No.4574/2022 IMV Act for which a reply is given by the said owner that his son, aged about 19 years was driving the vehicle who has no DL to drive the said vehicle as on the date of accident and has given details of the policy covered. The final report is as per Ex.P.12, alleging offences punishable under section 279, 304 (A) of IPC and Section 134(B), 187, 3(1), 181, 5, 180 of M.V.Act.
9. The defence of the respondent is that there is negligence on the part of the deceased himself, while he was crossing the road. The PW-1 is not an eye witness to the accident and submits that her husband would leave the house by 08.30 AM., and would return back after completing the work and that there is no particular timings for the said work done by her husband. Apart from this, there is nothing on record to show that there was negligence on part of the deceased in causing the accident. In this regard, the legal SCCH-20 9 MVC No.4574/2022 manager of the 1st respondent was examined as RW-2, who has mainly concentrated in his evidence regarding non possession of the DL by the driver of the alleged offending vehicle. He has further deposed that the respondent No.2 by entrusting the motor cycle to drive who did not hold valid and effective driving license has contravened the provisions of M.V.Act. Therefore it is clear that he has not much concentrated upon the negligence on the part of the deceased but only on having no DL by driver of the offending vehicle.
10. The sketch and spot panchanama are very much clear that the accident took place at zebra crossing. The deceased was pedestrian. The rider of the motor cycle was not examined, where the owner is placed exparte. The owner has replied to the notice issued under section 133 of M.V.Act that his son was driving the vehicle and had no proper DL. In this regard the counsel for the petitioner has relied upon the SCCH-20 10 MVC No.4574/2022 authority in A.Anandan Vs Abdul Azeez and others reported in 2004 ACJ 1091, of High court of Karnataka, where discussing the fact that the pedestrian sustained injuries by the motor cyclist, and neither the motor cyclist nor any other evidence was produced by the respondent, held that the motor cyclist was solely responsible for the accident. This judgment is aptly applicable to the instant case, since the motor cycle has hit the said Sebastine Patrick, who has failed to put his appearance and give proper evidence. Accordingly holding that there is complete negligence on the part of the rider of the offending vehicle i.e., motor cycle, the above issue is answered in affirmative.
11. Issue No.2:In order to show the age of the deceased, the petitioners have produced copy of adhaar card as Ex.P.16 pertaining to the deceased, showing his date of birth as 05.07.1970. Thus the deceased was aged about 52 years and SCCH-20 11 MVC No.4574/2022 appropriate multiplier for the said age is 11.
12. The deceased is alleged to be working as driver cum field worker and earning Rs.30.000/- per month. But no documents are produced to show the regular income of the deceased. Therefore the notional income of Rs.14,750/- can be considered to calculate loss of dependency.
13. Since the petitioner No.1 is the wife and petitioner No.2 and 3 are the children of the deceased, there are 3 dependents on the income of the deceased. 1/3rd of the salary must be deducted towards personal expenses and 10% of income should be added as future prospects. Therefore the petitioner No.1 to 3 are entitled for Rs.40,000/- each towards loss of consortium and Rs.15,000/- for funeral expenses and Rs.15,000/- for loss of estate.
Thus Loss of dependency calculation is as follows: SCCH-20 12 MVC No.4574/2022
Yearly income of the deceased 14750X12= 1,77,000/-
1. Calculating 10% future prospects:
10% X 1,77,000 = 17,700/- Adding 10% future prospects: 1,77,000+17,700= 1,94,700/-
2. calculation of 1/3rd income of Rs.1,94,700/-
1,94,700 X 1/3 = 64,900/-
3. Deducting 1/3 personal expenses:
1,94,700-64,900 1,29,800/-
4. Calculating loss of dependency 1,29,800 X '11' 14,27,800/-
14. Therefore, in all, the petitioners no.1 to 3 are entitled to a compensation as calculated below;
1. Loss of dependency Rs. 14,27,800/- 2 Loss of estate Rs. 15,000/-
3 Towards funeral and SCCH-20 13 MVC No.4574/2022 obsequies ceremonies Rs. 15,000/-
4. Loss of consortium Rs. 1,20,000/-
5. Medical bills Rs. 62,424/-
Total Rs.16,40,224/-
15. The petitioners are entitled for total compensation of Rs.16,40,224/- which can be rounded to Rs.16,41,000/-.
16. Liability:-
The respondent No.1 admits that they have issued policy to the offending vehicle and was very much valid at the time of accident. But submits that the driver of the offending vehicle had no proper DL to drive the said vehicle. Therefore with these defences, the investigating officer by name Naveen Supekar was summoned to give evidence who submits that he obtained the file on 08.08.2022 while he was transferred to Jayanagara police station and got confirmed that the driver had no DL. A formal denial is made of the said evidence and SCCH-20 14 MVC No.4574/2022 suggested that the charge sheet is filed wrongly against the driver of the offending vehicle. However the said charge sheet is not yet challenged. The owner of the vehicle himself has clearly submitted that his son was driving the vehicle who had no proper DL to drive the same. Therefore when the policy is covered, but their being no DL, in view of authority in 1. Francisca Luiza Rocha and others Vs K.Valarmathi and others, reported 2018 ACJ 1430 and many others, which are relid upon by the counsel for the plaintiff, this court is of considered opinion that the insurance company shall pay the petitioners the award amount and can be bestowed with the right to recover from the owner of the vehicle along with 6% interest.
17. Issue No.3: After having answered issue No.1 and 2 as supra, I hold that, the petition filed by the petitioner is fit to be allowed in Part. In the result, I proceed to pass the SCCH-20 15 MVC No.4574/2022 following:-
ORDER The claim petition filed under Section 166 of the Motor Vehicles Act is partly allowed with cost.
The petitioners No.1 to 3 are entitled for compensation of Rs.16,41,000/- with interest @ 6% pa., from the date of petition till its realization.
The respondent No.1 is hereby
directed to deposit the aforesaid
compensation amount within two months from the date of judgment. After deposit, the respondent No.1, can recover the same from the respondent No.2, by adopting due process of law.
After deposit, the petitioners are entitled to share in the ratio of 6:2:2, with cost and interest and consortium as under. SCCH-20 16 MVC No.4574/2022 The petitioner No.1 is entitled for a sum of Rs.9,84,600/-, after deposit, 60% share of the petitioner No.1 shall be released and deposit 40% share of compensation amount as FD in her name with any nationalized or scheduled bank of their choice for a period of three years.
The petitioner No.2 and 3 are entitled for a sum of Rs.3,28,200/- each. After deposit, the entire compensation amount shall be released in their favour with proper identification.
Advocate fee is fixed at Rs.5,000/-.
Draw Award accordingly.
(Dictated to the Stenographer, transcribed by him, corrected by me and then pronounced in open court on this the 13th day of April 2023) (Sharmila C.S) V ASCJ & Member, MACT, Court of Small Causes, Mayo Hall Unit, Bengaluru.
A N N E X U R E:
SCCH-20 17 MVC No.4574/2022
Witnesses examined for petitioners:
PW.1 : Marry Jashpine Documents marked for petitioner:
Ex.P.1 : Copy of FIR, Ex.P.2 : Copy of FIS
Ex.P.3-4 : copy of Intimation MLC Ex.P.5 : copy of police information report Ex.P.6 : copy of sketch Ex.P.7 : copy of Spot mahazar Ex.P.8 : copy of Inquest report Ex.P.9-10 : Copy of PM report Ex.P.11 : copy of MVA report Ex.P.12 : copy of Charge sheet Ex.P.13 : copy of 133 notice Ex.P.14 : Copy of reply to 133 notice Ex.P.15 : Notarized copy of DL Ex.P.16-19: Notarized copy of Adhaar cards Ex.P.20 : Medical bills for Rs.62,424/- Ex.P.21 : Advance bills Ex.P.22 : prescriptions Witnesses examined for respondents:
RW-1 Naveen Supekar RW-2 Sandeep.S.K
Documents marked for respondents:
Ex.R1 insurance policy Digitally signed by SHARMILA SHARMILA CS CS Date: 2023.04.13 17:33:47 +0530 SCCH-20 18 MVC No.4574/2022 (Sharmila C S) V ASCJ & Member, MACT, Court of Small Causes, Mayo Hall Unit, Bengaluru. SCCH-20 19 MVC No.4574/2022 13.04.2023
(Judgment pronounced in the Open Court vide separate Order) ORDER The claim petition filed under Section 166 of the Motor Vehicles Act is partly allowed with cost.
The petitioners No.1 to 3 are entitled for compensation of Rs.16,41,000/- with interest @ 6% pa., from the date of petition till its realization.
The respondent No.1 is hereby
directed to deposit the aforesaid
compensation amount within two months from the date of judgment. After deposit, the respondent No.1, can recover the same from the respondent No.2, by adopting due process of law.
After deposit, the petitioners are entitled to share in the ratio of 6:2:2, with cost and interest and consortium as under. SCCH-20 20 MVC No.4574/2022 The petitioner No.1 is entitled for a sum of Rs.9,84,600/-, after deposit, 60% share of the petitioner No.1 shall be released and deposit 40% share of compensation amount as FD in her name with any nationalized or scheduled bank of their choice for a period of three years.
The petitioner No.2 and 3 is entitled for a sum of Rs.3,28,200/- each. After deposit, the entire compensation amount shall be released in their favour with proper identification.
Advocate fee is fixed at Rs.5,000/-.
Draw Award accordingly.
V Addl. Judge & 24th ACMM SCCH-20 21 MVC No.4574/2022 AWARD SCCH NO.20 BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA : BANGALORE CITY MVC. No.4574/2022 PETITIONER: 1. Smt.Marry Josphine W/o Late sebastine Patrick Aged about 49 years,
2. Miss.Janifer.S D/o Late sebastine Patrick Aged about 25 years,
3. Mr.Marson David.S S/o Late sebastine Patrick Aged about 27 years, All are residing at Beereshwara Temple Road Chunchaghatta Main road, Near Carmel Jyothi School Road, Bangalore - 560062.
(By Pleader Sri.B.S.Devarajau)
-V/s-
RESPONDENTS: 1.Liberty GIC Ltd., No.21/15, The Land Mark, 4th floor, near Trinity metro Station M.G.Road, Bangalore - 560001
2. Mr.Murugan.M S/o Madaswamy, R/at No.120, Flat No.501, Teju Apartment, Sarakii JP Nagar 1st phase, SCCH-20 22 MVC No.4574/2022 Bangalore - 560078 (R1-By pleader Sri.Ravi.S.Samprathi R1-Exparte ) WHEREAS, this petition filed on by the petitioner/s above named U/Sec.166 of the M.V.C. Act, praying for the compensation of Rs.
(Rupees ) for the
injuries sustained by the petitioner/Death of in a motor
Accident by vehicle No.
WHEREAS, this claim petition coming up before
Smt.Sharmila.C.S, XXIV.Addl. Judge, Court of Small Causes & Member, MACT, Bangalore, in the presence of Sri/Smt. Advocate for petitioner/s and of Sri/Smt. Advocate for respondent.
ORDER The claim petition filed under Section 166 of the Motor Vehicles Act is partly allowed with cost.
The petitioners No.1 to 3 are entitled for compensation of Rs.16,41,000/- with interest @ 6% pa., from the date of petition till its realization.
The respondent No.1 is hereby
directed to deposit the aforesaid
SCCH-20 23 MVC No.4574/2022
compensation amount within two months from the date of judgment. After deposit, the respondent No.1, can recover the same from the respondent No.2, by adopting due process of law.
After deposit, the petitioners are entitled to share in the ratio of 6:2:2, with cost and interest and consortium as under.
The petitioner No.1 is entitled for a sum of Rs.9,84,600/-, after deposit, 60% share of the petitioner No.1 shall be released and deposit 40% share of compensation amount as FD in her name with any nationalized or scheduled bank of their choice for a period of three years.
The petitioner No.2 and 3 is entitled for a sum of Rs.3,28,200/- each. After deposit, the entire compensation amount shall be released in their favour with proper identification.
SCCH-20 24 MVC No.4574/2022Advocate fee is fixed at Rs.5,000/-. Given under my hand and seal of the Court this day of 2023.
Member, M.A.C.T, Court of Small Causes, Mayo Hall Unit, Bangalore.
MEMORANDUM OF COST INCURRED IN THIS SUIT By the Plaintiff/s Defendant/s
1. Stamp paid on plaint (C/f)
2. Stamp paid for power
3. Stamp on I.A's
4. Service on Process
5. Advocate
6. Others / Total Decree drafted Decree Scrutinized Member, M.A.C.T, by by Court of Small Causes, Mayo Hall Unit, Bangalore.
Decree Clerk Sheristedar
SCCH-20 25 MVC No.4574/2022