Bangalore District Court
Lost Their Elder Brother vs No.1 Did Not Produce The Licence on 14 June, 2016
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 14th day of June, 2016.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com.,LL.B.(Spl.),L.L.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C.No.1317/2014
1. Smt. Noor Jan, ..... PETITIONERS
W/o. Late Basha Khan.
2.Smt. Asma,
D/o. Late Basha Khan,
Aged about 26 years.
3.Sri. Azmath Khan,
S/o. Late Basha Khan,
Aged about 25 years.
4.Sri. Rafiq Khan,
S/o. Late Basha Khan,
Aged about 24 years.
5.Kum. Sabiha Khanum,
D/o. Late Basha Khan,
Aged about 19 years.
6. Mansoor Pasha,
D/o. Late Basha Khan,
Aged about 16 years.
The Petitioners 1 to 6 are
Residing at;
No.35, 5th Cross,
Venkatashamappa Layout,
Bangalore-560 032.
Since the 6th Petitioner is
SCCH-7 2 M.V.C.NO.1317/2014
Minor, she is represented
by his mother Smt. Noor Jan,
1st Petitioner, as Natural Guardian.
(By Sri. Swamy. N. K., Adv.,)
V/s
1.Sri. Sarvesh Kavlekar, ..... RESPONDENTS
S/o. Panduranga Kavlekar,
Aged about 40 years,
Residing at;
H.No.12, Piligao Mathwada,
Bicholim North,
Goa-403504.
2. The Regional Manager,
ICICI Lombard Motor
Insurance Company Ltd.
No.21, Mahalakshmi Complex,
Hosur Main Road,
Adugodi,
Bangalore.
(Insurer of Motor Cycle No.
GA-04-K-8552 in Policy No.
3005/203632931/10383/000,
Valid from 21/09/2013 to 20/09/2014)
3.Smt. Munne,
W/o. Late Babu Khan,
Aged about 35 years,
Residing at;
Petel Nagara,
Opposite Masjid,
Dhandeli Town,
Dharwad District.
(R1- Exparte)
(R2- By Sri. Gururaj Salur, Adv.,)
(R1- Exparte)
SCCH-7 3 M.V.C.NO.1317/2014
JUDGMENT
The Petitioners No.1 to 6 have filed the present petition as against the Respondents No.1 to 3 under Section 166 of the Motor Vehicles Act, 1989, praying to award compensation of Rupees 10,00,000/- in respect of death of Babu Khan S/o. Basha Khan.
2. The brief averments of the Petitioner's case are as follows;
a) The deceased Babu Khan working as a Driver under one Roland Fernandes in Panaji and earning more than Rupees 10,000/- per month. On 03/12/2013 at about 11-30 P.M., deceased Babu Khan after finishing work returning his home at Adarsh Nagar, Panaji, when he reached near Vasanth Vihar Building, Taleigao, at that time, one Motor Cycle Karizma bearing No.GA-04-K-8552 was proceeding in a very fast speed from Taleigao towards Adarsh Colony Circle, Miramar, gave dash to the deceased pedestrian Babu Khan. Due to this impact, the deceased Babu Khan sustained grievous injuries and shifted to GMC Bambolim Casualty, where, he was expired while undergoing treatment. The Doctor of Goa Medical College, Bambolim, conducted postmortem and later, shifted to Bangalore and buried. The 1st Petitioner spent Rupees 1,00,000/- for obsequies.
b) The deceased was looking after their entire family. They are totally depending on the income of the deceased Babu Khan. The first Petitioner lost her son in her old age and other Petitioners lost their elder brother, who was looking after their welfare. Their family is passing hard days without proper assistance and care. Their life becoming miserable and their entire family is in mental agony and their income is deprived and they SCCH-7 4 M.V.C.NO.1317/2014 are not in a position to do the work of the deceased in taking care as a beloved mother and brother and sisters.
c) The 3rd Respondent is the wife of the deceased Babu Khan. The deceased was the 2nd husband to the 3rd Respondent. The said 3rd Respondent has got a child by name Perzana born through her first husband and out of the deceased wedlock, they have no issues. The 3rd Respondent is not responding after the death of Babu Khan. Hence, she has been made as a party in the present petition since she is a proper and necessary party.
d) The jurisdictional Panaji Police have registered a criminal case as against the driver of the Motor Cycle Karizma bearing No.GA-04-K-8552 in FIR No.532/13 and for that, investigation is going on. The Respondents failed to satisfy their claim.
e) They have not claimed any compensation under Section 140 before any other Authroity. Hence, this petition.
3. Though the notice was duly served on the Respondent No.1, he was remained absent and hence, he is placed as exparte on 08.04.2015.
4. In response to the notice, the Respondent No.2 has appeared before this Tribunal through his Learned Counsel and has filed the written statement.
5. Though the notice was duly served on the Respondent No.3 through paper publication, she was remained absent and hence, she is placed as exparte on 06.02.2015.
SCCH-7 5 M.V.C.NO.1317/20146. The Respondent No.2 inter-alia denying the entire case of the Petitioners, has further contended as follows;
a) The petition for grant of compensation for the death of one Babu Khan, who was died in an alleged accident, that occurred on 03-12-2013 involving the Motor Cycle bearing No. GA-04-K-8552 is not maintainable either in law or on facts.
b) It having insured the Motor Cycle bearing No.GA-04-K- 8552 in terms of the policy of insurance issued, which is in accordance with the provisions of the Motor vehicles Act and the liability of him is limited to the terms and conditions of the policy of insurance issued.
c) The owner of the vehicle has not submitted the claim form and other documents, like, R.C., driving licence, etc., for verification and hence, it is permitted to file additional statement of objections as and when the above requirements are submitted by the owner of the vehicle in question.
d) If the owner of the vehicle has not contest the claim petition or if he is placed exparte before this Hon'ble Court or if he has colluded with the Petitioners, then, it be permitted to contest the mater on all grounds available under Section 170 of the Motor Vehicles Act without prejudice to the ground available under Section 149(2) of the M. V. Act.
e) The Motor Cycle bearing No.GA-04-K-8352 was not at all involved in the alleged accident. The Petitioners have falsely implicated the said vehicle by colluding with the jurisdictional Police and the owner of the vehicle to get unlawful gain from him.
SCCH-7 6 M.V.C.NO.1317/2014f) The rider of Motor Cycle bearing No.GA-04-K-8552 drove the same without having valid and effective driving licence, which is in contravention of the policy conditions and the Motor Vehicles Act and the owner of the said vehicle allowed the rider to ride the same knowing fully well that, he has not having valid and effective driving licence to drive the vehicle in question. Hence, it is a clear violation of the policy terms and conditions and also the Motor Vehicles Act. Hence, it is not liable to pay the compensation.
g) There is no negligence on the part of the rider of Motor Cycle bearing No.GA-04-K-8352. The deceased himself cross the road without following any traffic rules and regulations.
h) The Petitioners are neither the legal representatives nor the dependents of the deceased.
i) The alleged accident was not taken place in the jurisdiction of this Hon'ble Court. Hence, there is no cause of action to entertain the petition before this Hon'ble Court.
j) The owner of the Motor Cycle bearing NO.GA-04-K- 8552 is not a party to the proceedings, hence, the question of indemnifying the risk of owner is not at all arise.
k) The Petitioners may be directed to confirm that, no other petition is filed before this MACT or before any other MACT, on the same cause of action and the Petitioners may be directed an undertaking before this Hon'ble Court that, no such petition is filed on the same cause of action, except this petition.
SCCH-7 7 M.V.C.NO.1317/2014l) A sum of Rupees 10,00,000/- claimed by the Petitioners is highly excessive, arbitrary and disproportionate to the age, income and avocation of the deceased and they are trying to make a windfall out of an unfortunate accident.
m) The Petitioners are not entitled to receive any interest on future loss of earnings and if the compensation is granted on any other heads, the rate of interest should not exceed more than 6% in view of the several recent decisions of our Hon'ble High Court of Karnataka. Hence, prayed to dismiss the petition with exemplary costs.
7. Based on the above said pleadings, I have framed the following Issues and Additional Issue;
ISSUES
1. Whether the Petitioners prove that they are the dependents and legal representatives of deceased SRI.BABU KHAN?
2. Whether the Petitioners prove that, the accident occurred due to rash negligent riding of the Motor Cycle bearing Reg.No.GA-04-K-8552 by its rider and Sri. Babu Khan died due to the injuries sustained in the accident?
3. Whether the Petitioners are entitled for compensation? If so, how much and from whom?
4. What Order?
SCCH-7 8 M.V.C.NO.1317/2014
ADDITIONAL ISSUE
Whether this Tribunal has
jurisdiction to entertain and try the
petition?
8. In order to prove their case, the Petitioners have examined the Petitioner No.3 as P.W.1 by filing an affidavit as his examination-in-chief and have placed reliance upon Ex.P.1 to Ex.P.16. On the other hand, the Respondent No.2 has examined Police Sub-Inspector, Panaji, Goa, as R.W.1 and his Legal Retainer as R.W.2 and no documents got marked on his behalf.
9. Heard the arguments.
10. In support of the submission, the Learned Counsel appearing for the Petitioners Sri. Swamy. N. K. has placed reliance upon the decision reported in, M.F.A.No.2056/2011 (MV) (Bajaj Allianz General Insurance Company Ltd., V/s. R. Logaraj and Another), wherein, it is observed that,
2. It is not in dispute that, the scooter in question was insured by the appellant, while its owner/Respondent No2 was the insured. It is also not in dispute that, rider of scooter was attributed with actionable negligence the cause of the accident and injuries to Respondent No.1. It is not in dispute that, the appellant did not chose to examine the Regional Transport Authority or Officers of the Regional Transport Department to produce and speak to the driving licence of rider of the Scooter, who SCCH-7 9 M.V.C.NO.1317/2014 was charge sheeted for cognizable offence under Indian Penal Code.
3. It is not in dispute that, R.W.1 Officer of the appellant/insurer did not have personal knowledge of either the particulars of the rider of the Scooter nor made enquiries into the existence or otherwise of a valid and effective driving licence by the rider of the Scooter on the date and at the time of accident. It is a matter of fact that, in the testimony of R.W.1 it is stated that, no efforts were made to ascertain from Regional Transport Officer over the driving licence of the accused/rider before the Criminal Court. The contention advanced before the MACT that, the rider of the Scooter did not possess a valid and effective driving licence was turned down, since there was not a titer of evidence in support of the contentions. Identical is the contention advanced in this appeal.
5. In Rukmani and others Vs. New India Assurance Co. and Others, the Apex Court though noticed that, the Insurance Company had in support of its plea that, the driver of the vehicle did not hold a valid driving licence, examined Inspector of Police who investigated the accident, nevertheless, observed that, in the enquiry of the said Inspector, the driver of the vehicle did not produce the licence and even after demand, did not submit the licence since he was not have any, while, in cross-examination, admitted to the effect that, he was required to check whether licence is issued and that, he had not informed the Inspector of the motor vehicles that, driver did not hold a valid licence since it was not necessary, the Apex Court held that, failure to summon the driver of the vehicle and there being no record from Regional Transport Authority placed before Tribunal, the Insurance Company has not discharged its burden SCCH-7 10 M.V.C.NO.1317/2014 cast upon it under Section 96(2)(b)(ii) of the M.V. Act, 1989, which is para material with Section 149 of the 'Act'.
6. In National Insurance Company Ltd., Vs. Swaran Singh and Others, the Apex Court observed thus:
"63. In Rukmani and Others Vs. New India Assurance Co. Ltd., and Others (1999 ACJ 171), this Court while upholding the defences available to the insurer to the effect that, vehicle in question was not being driven by a person holding a licence, held that, the burden of the insurer would not be discharged when the evidence which was brought on record was that, the Inspector of Police in his examination in chief merely stated, "My enquiry revealed that, the Respondent No.1 did not produce the licence to drive the above said scooter. The Respondent No.1 even after my demand did not submit the licence since he was not having it".
11. In support of the submission, the Learned Counsel appearing for the Respondent No.2 Sri. Gururaj Salur has placed reliance upon the decisions reported in,
i) 2011 (1) AIR Kar R 927 (New India Assurance Co. Ltd., Bangalore V/s. Afroz and Another), wherein, it is observed that, (A) Motor Vehicles Act (59 of 1988),S. 149 - Liability of insurer - Auto Rickshaw dashed against tanker - driver of tanker did not possess valid and effective driving licence on date of accident - also driver has been prosecuted in criminal proceedings for not possessing valid license - Insurer cannot be fastened with liability.
SCCH-7 11 M.V.C.NO.1317/2014ii) M.F.A.No.4716/2011 (MV) (United India Insurance Company Ltd., V/s. Smt. Umamaheshwari @ Umadevi and Others), wherein, it is observed that,
2. Learned Counsel for the appellant, points to the Written Statement filed before the MACT, advancing a plea that, the driver of the motor vehicle did not possess a valid driving licence was also the contents of Ex.P.2 the Charge Sheet, wherein, the drive of the offending motor vehicle is charged under Clause (1) of Section 3 read with Section 181 of the Motor Vehicles Act, 1988, as he did not possess a valid driving licence as on the date of the accident. In that view of the matter, it cannot be said that there was a fundamental breach of the conditions of the indemnity extended by the appellant/insurer in favour of the insured against the claims put forth by the third parties.
iii) 2008 ACJ 1307 Supreme Court of India (Sardari and Others V/s. Sushil Kumar and Others), wherein, it is observed that, Motor Vehicles Act, 1988 Sec.149(2) (a)
(ii) and 5 - Motor Insurance - Driving Licence - Liability of Insurance Company -
Tractor hit a tonga and tonga driver sustained fatal injuries - Tractor driver admitted that he had not driving licence to drive a tractor - Concurrent findings of High Court and the Tribunal that driver of Tractor had no licence and High Court held that claimants are entitled to compensation from driver and owner of the vehicle -
whether Insurance Company is rightly exempted from liability - Held, Yes. Owner of vehicle has a statutory obligation to see SCCH-7 12 M.V.C.NO.1317/2014 that driver of vehicle whom he authorised to drive holds a valid licence.
iv) ILR 2007 KAR 4567 (Yashodhara B. Shetty V/s. United India Insurance Company Ltd., and Others), wherein, it is observed that, Motor vehicles accident, 1982 Section 173(1) - Accident - injuries - compensation
- Claim for - MACT fastening the liability on the insured and absolving the insurer from its liability- Judgment and award -
Appealed against - Absence of evidence to discharge the burden of proof of the insured
- obligation on the part of the owner to take adequate care to see that, the driver had an appropriate licence to drive the vehicle -
Failure on the part of the appellant/insured to discharge his initial burden of establishing that, he had engaged a licenced driver - HELD, in the absence of evidence to discharge the burden of proof of the appellant/insured, it cannot but, be said that, the MACT was fully justified in fastening the liability on the appellant/owner and absolving the Insurance Company of its liability to pay the compensation - ON FACTS, HELD, There can be no more dispute that, the appellant did not discharge his initial burden of establishing that, he had done everything within his power by engaging a licenced driver by name Shankar Poojary and placed the vehicle in question in his charge on 25.04.1998 and that, he had no knowledge of one Shankar Kullal the cleaner having taken over the driving of the Bus- Appeals are without merit.
12. My answers to the above said Issues and Additional Issue are as follows;
SCCH-7 13 M.V.C.NO.1317/2014
ISSUES
Issue No.1 : Partly in the Affirmative,
Issue No.2 : In the Affirmative,
Issue No.3 : In the Affirmative,
The Petitioners and the
Respondent No.3 are
entitled for compensation
of Rupees 13,32,000/-
with interest at the rate of
8% p.a. from the date of
the petition till the date of
payment, from the
Respondent No.2.
Issue No.4 : As per the final Order,
ADDITIONAL ISSUE
Additional : Finding already given on
Issue 25.08.2015,
for the following;
REASONS
13. ISSUE NO.1 :- The P.W.1, who is the Petitioner No.3
has stated in his examination-in-chief that, other Petitioners are his mother and brothers and sisters and they have filed the present petition for compensation of Rupees 10,00,000/- in respect of death of Babu Khan, who died in the road traffic accident, which was taken place on 03.12.2013 at about 11.30 p.m., when after finishing work returning to his home at Adarsh Nagar, Panaji, when he reached near Vasanth Vihar Building, Taleigao, Goa, at that time, one Motor Cycle Karizma bearing Registration No.GA-04-K-8552 dashed to him, who as a SCCH-7 14 M.V.C.NO.1317/2014 pedestrian and due to the said impact, he had sustained grievous injury and shifted to GMC Bambolim Casualty, where, he was expired while undergoing treatment and the Doctor of Goa Medical College, Bambolim, conducted postmortem. He has further stated that, the Respondent No.3 is the wife of the deceased Babu Khan, who is a 2nd husband of the Respondent No.3 and the said Respondent No.3 has got a child by name Perzna born through the first husband of the Respondent No.3 and out of the deceased wedlock, they have no issues and the Respondent No.3 is not responding after the death of Babu Khan and hence, she has been made as a party in the present petition since she is a proper and necessary party. He has further stated in his cross-examination that, his father is no more, who died 6 years back and they are 6 brothers, out of them, two are died and the Petitioner No.2 is his sister, who is married and the Petitioners No.5 and 6 are unmarried and the Petitioner No.4 is studying in the School at R.T. Nagar. The Petitioners have produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Memorandum of Autopsy, Ex.P.4 Genealogical Tree by way of Affidavit, Ex.P.5 Charge Sheet, Ex.P.6 Inquest Panchanama, Ex.P.10 Cemetery Report dated 07.12.2013, Ex.P.11 Election Identity Card relating to Noor Jan, Ex.P.12 Election Identity Card relating to Rafiq Khan, Ex.P.13 Election Identity Card relating to Asma Parveen, Ex.P.14 Election Identity Card relating to Ajmath Khan, Ex.P.15 School Transfer Certificate relating to Sabiha Khanam and Ex.P.16 School Transfer Certificate relating to Mansoor Pasha. Admittedly, the Petitioners have not produced the Ration Card. In this regard, the P.W.1 has stated in his cross-examination that, they have not produced any documents to show that, the deceased Babu Khan is his elder brother and all the Petitioners are related to deceased Babu Khan. He has further stated that, their names not shown in Ex.P.6 SCCH-7 15 M.V.C.NO.1317/2014 Inquest Panchanama. But, the said non-production of documents no way affected to consider the relationship of the Petitioners with the said deceased Babu Khan, as, the above said Police, medical and personal documents of the Petitioners clearly disclosed that, the Petitioner No.1 is a mother, the Petitioner No.2 is a married sister, the Petitioners No.3 and 4 are the major brothers, the Petitioner No.5 is a unmarried sister, the Petitioner No.6 is a minor brother and the Respondent No.3 is a wife of the said deceased Babu Khan. It is also clear from the contents of the said material documents as well as oral version of P.W.1 that, the deceased Babu Khan is a 2nd husband of the Respondent No.3. Based on the said material evidence, it can be safely held that, the Petitioner No.1 being a mother and the Respondent No.3 being a wife are only the legal representatives and the dependents upon the said deceased Babu Khan S/o. Basha Khan. Further, the P.W.1 in his cross-examination has clearly stated that, the Petitioner No.2 is his sister, who is married and he is working in Chicken Shop by receiving wages of Rupees 250/- per day and the Petitioner No.4 is studying in the School at R.T. Nagar. Since, the said deceased married the Respondent No.3 and since the Petitioner No.2 is a married sister and the Petitioners No.3 and 4 are the major brothers and since the Petitioner No.5 is a an unmarried sister, who has been looking after by their brother, i.e., Petitioner No.1 and since, the deceased was residing at Panaji and he was not residing along with the Petitioners No.1 to 5 and 6 at the time of accident, they cannot be considered as dependents upon the said deceased. In view of the said reasons, only the Petitioner No.1 and the Respondent No.3 can be considered as legal representatives and dependents upon the said deceased Babu Khan S/o. Basha Khan. Accordingly, I answered Issue No.1 Partly in the Affirmative.
SCCH-7 16 M.V.C.NO.1317/201414. ISSUE NO.2 :- The P.W.1 has stated that, on 03.12.2013 at about 11:30 P.M. the deceased Babu Khan after finishing work returning his home at Adarsh Nagar, Panaji, when he reached near Vasanth Vihar Building, Taleigao, Goa, at that time, one Motor Cycle Karizma bearing No.GA-04-K-8552 was proceeding in a very fast speed from Taleigao towards Adarsh Colony Circle, Miramar, gave dash to the deceased pedestrian Babu Khan and due to this impact, he sustained grievous injuries and shifted to GMC Bambolim Casualty, where he was expired while undergoing treatment. He has further stated that, the Doctor of Goa Medical College, Bambolim, conducted postmortem. He has further stated that, the jurisdictional Panaji Police have registered a criminal case as against the driver of the Motor Cycle Karizma bearing No.GA-04-K-8552 in FIR No.532/13 and they complete the investigation by filing Charge Sheet as against the Respondent No.1.
15. No doubt, the P.W.1 is not an eye witness. Further, the Petitioners have not examined any of the eye witness in the present petition to consider their case. Further, the P.W.1 in his cross-examination has stated that, he has not visited the accidental spot and not enquired about how the accident occurred and the contents of Ex.P.8 Spot Hand Sketch are true and correct and he does not know that, when his deceased brother was crossing the road, the Truck shown in Ex.P.8 Spot Hand Sketch caused the accident to him. Though the P.W.1 in his cross- examination has stated that, the Petitioner No.1 has no hurdle to appear before this Court, who is their mother, the Petitioners did not care to examine the Petitioner No.1, who is a mother of the said deceased, as witness in the present case.
SCCH-7 17 M.V.C.NO.1317/201416. But, the non-examination of any eye witness by the Petitioners to consider the accident in question and the said evidence of P.W.1, which is elicited from his mouth by the Respondent No.2 no way affected to consider the case of the Petitioner as well as the oral version of P.W.1, which has been stated by him in the examination-in-chief, as, to corroborate their case as well as oral version of P.W.1, the Petitioners have produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Memorandum of Autopsy, Ex.P.5 Charge Sheet, Ex.P.6 Inquest Panchanama, Ex.P.7 Spot Panchanama, Ex.P.8 Spot Hand Sketch and Ex.P.10 Cemetery Report dated 07.12.2013, which clearly disclosed that, the entire negligence is on the part of the rider of the offending Motor Cycle Karizma bearing No.GA-04-K-8552 in the commission of the said road traffic accident and there was no negligence on the part of the deceased Babu Khan S/o. Basha Khan, who was a pedestrian on the accidental road and the said offending Motor Cycle dashed to the said deceased and due to the said impact, he had sustained grievous injury and succumbed to the accidental injuries during the course of treatment at GMC Bambolim Casualty, which is clear from the following discussion. Furthermore, the P.W.1 in his cross-examination has clearly stated that, the neighbour of the deceased informed him about the accident and he has hurdle to examine the eye witness of the alleged accident, as, they are residing at Goa. Furthermore, the P.W.1 in his cross-examination has clearly denied the suggestions put to him by the Respondent No.2 that, the offending Motor Cycle not at all involved in the alleged accident and not at all caused the accident to his deceased brother and only to get compensation, it is falsely implicated in the criminal case in collusion with the Police and by producing created documents, he is giving false evidence. From this, it appears that, though the P.W.1 has been SCCH-7 18 M.V.C.NO.1317/2014 cross-examined by the Respondent No.2, nothing has been elicited from his mouth to consider his defence. Further, though the Respondent No.2 has examined his Legal Retainer as R.W.2, he has not stated anything about the accident in question, which was committed by the rider of the offending Motor Cycle Karizma bearing No.GA-04-K-8552 due to his negligent riding of the said offending Motor Cycle, which dashed to the deceased. Furthermore, it is clear from the evidence of the R.W.1, who is the Investigation Officer of the said criminal case, which is relating to the present accident in question as well as the evidence of R.W.2 that, at the time of accident, the rider of the offending Motor Cycle was not having a valid and effective driving licence to ride such class of offending Motor Cycle at the time of accident. From this, it is made crystal clear that, the entire negligence is on the part of the ride of the offending Motor Cycle Karizma bearing No.GA-04-K- 8552 and there was no negligence on the part of the deceased in the commission of the said road traffic accident.
17. The contents of Ex.P.1 FIR and Ex.P.2 Compliant clearly disclosed that, the Police Head Constable at Panaji Police Station had lodged Ex.P.2 Complaint before the North P. S. Panaji as against the rider of the offending Motor Cycle Karizma bearing No.GA-04-K-8552 by alleging that, on 03.12.2013 at 11.30 p.m., he received phone call from PCR Panaji, when he was on duty at Panaji Police Station, informing that, a Motor Vehicle accident took place near Vasanth Vihar Highway at Taleigao between Motor Cycle bearing No.GA-04-K-8552 and one pedestrian and based on the receipt of this information, registered M.V. Accident vide No.416/13 and he went to the accidental spot and after enquiry, it is revealed that, the rider of the Motor Cycle Karizma bearing No.GA-04-K-8552 was proceeding in a very fast speed from SCCH-7 19 M.V.C.NO.1317/2014 Taleigao towards Adarsh Colony Circle Miramar along with one lady pillion rider and gave dash to the pedestrian and the rider of the Motor Cycle also fell down on the road along with the pillion rider and the rider of the Motor Cycle fled away from the spot along with the Motor Cycle Karizma bearing No.GA-04-K-8552 and lady pillion rider and the pedestrian injured person was shifted to GMC Bambolim Casualty and he expired in casualty while undergoing treatment and hence, he lodged the complaint as against the unknown rider of the Motor Cycle Karizma bearing No.GA-04-K-8552, who rode it in rash and negligent manner and fled away from the accidental spot without giving medical aid to the injured pedestrian and also informed to the Police about the accident and as such, based on Ex.P.2 Complaint, the said Police have registered a criminal case as against the rider of the offending Motor Cycle for the offences punishable under Sections 279 and 304(A) of IPC and Section 134(A & B) of M.V. Act. It is clear from the contents of Ex.P.1 FIR and Ex.P.2 Complaint that, there is no delay as such in lodging Ex.P.2 Complaint by the Police Official in respect of the accident in question.
18. The contents of Ex.P.7 Spot Panchanama and Ex.P.8 Spot Hand Sketch further clearly disclosed that, due to very high speed, rash and negligent manner of riding of the offending Motor Cycle Karizma bearing No.GA-04-K-8552 by its rider itself, the said road traffic accident was taken place, which dashed to the deceased Babu Khan, who was a pedestrian on the accidental road and due to the said impact, the said deceased had sustained grievous injury and he was shifted to GMC Bambolim Casualty, wherein, he was expired during the course of treatment to the accidental injuries and there was no negligence on the part of the deceased in the commission of the said road traffic accident. It is SCCH-7 20 M.V.C.NO.1317/2014 also clear from the contents of Ex.P.8 Spot Hand Sketch that, if the rider of the offending Motor Cycle could have taken a little care while riding the Motor Cycle on the accidental road, he could have avoided the said road traffic accident and could have saved the valuable life of the said deceased.
19. The contents of Ex.P.3 Memorandum of Autopsy, Ex.P.6 Inquest Panchanama and Ex.P.10 Cemetery Receipt dated 07.12.2013 clearly disclosed that, the said deceased Babu Khan succumbed due to the accidental injuries itself as he has sustained severe grievous injuries all over his body and no other reasons for death of the said deceased and his body was cremated at Bangalore on 07.12.2013.
20. The contents of Ex.P.5 Charge Sheet further clearly disclosed that, due to very high speed, rash and negligent manner of riding of the offending Motor Cycle Karizma bearing No.GA-04- K-8552 by its rider itself, the said road traffic accident was taken place on 03.12.2013 at 11.20 p.m., near Vasath Vihar Building, Taligao, it gave dash to the pedestrian and fled away from the spot with the Motor Cycle and pillion rider, namely, Babu S/o. Basha Khan, aged 45 years, R/o. Taligao, sustained injuries due to accident and succumbed to the injuries while undergoing treatment at GMC Bambolim and the pillion rider, namely, Miss. Saloni Naik R/o. Taligoa, sustained simple injuries and as such, after thorough investigation, the Investigating Officer has filed a charge sheet as against the rider of the offending Motor Cycle for the offences punishable under Section 279, 337 and 304(A) IPC and Section 4 and 134 (A & B) of M. V. Act. There is no allegation leveled by the Investigating Officer as against the deceased in Ex.P.5 Charge Sheet about his negligence in the commission of SCCH-7 21 M.V.C.NO.1317/2014 the said road traffic accident. Further, the R.W.1, who is an Investigation Officer has stated in his examination-in-chief that, he has conducted investigation in Crime No.532/2013 relating to the said Panaji Police Station and Suriya @ Veeru Khandeparkar is an accused in the said Crime and after completion of investigation, he has filed a Charge Sheet as against the said accused as per Ex.P.5 Charge Sheet and during the course of investigation, it is found that, the said accused Suriya @ Veeru Khandeparkar is not having a valid and effective Driving licence to ride the said offending Motor Cycle at the time of accident and he has made the same in the Charge Sheet.
21. From the above said material evidence, both oral and documentary, it is clearly proved that, the entire negligence is on the part of the rider of the offending Motor Cycle Karizma bearing No.GA-04-K-8552 in the commission of the said road traffic accident and there was no negligence on the part of the deceased Babu Khan S/o. Basha Khan and the offending Motor Cycle Karizma bearing No.GA-04-K-8552 as well as its rider are very much involved in the said road traffic accident, which dashed to the said deceased, who had sustained grievous injury and succumbed to the said accidental injuries during the course of treatment on 07.12.2013. Accordingly, I answered Issue No.2 in the Affirmative.
22. ISSUE NO.3 :- No authenticated documents are produced by the Petitioners to consider the actual age of the deceased at the time of accident. But, the above referred Police and medical documents clearly disclosed that, at the time of accident, the deceased was 45 years old at the time of accident.
SCCH-7 22 M.V.C.NO.1317/2014Hence, the age of the deceased is considered as 45 years at the time of accident.
23. The P.W.1 has stated that, the deceased Babu Khan was working as a driver under one Roland Fernandes in Panaji and earning more than Rupees 10,000/- p.m. The Petitioners have produced Ex.P.9 Letter issued by Roland Fernandes, which disclosed that, the deceased Babu Khan was working with the said Roland Fernandes as a driver on contract basis and he used to pay him Rupees 7,500/- p.m., by cash without any receipt and he was worked with him for a period of 4 months. Further, the Petitioners have not examined the author of Ex.P.9 Letter. No doubt, the Petitioners have not produced the driving licence relating to the deceased. The same has been clearly admitted by the P.W.1 in his cross-examination. Further, the Petitioners have not disclosed the educational qualification of the said deceased. But, it no way affect to consider the avocation and income of the deceased at the time of accident, as, at the time of accident, the deceased was 45 years old and he is having Petitioners as mother, brothers, sisters and Respondent No.3 as his wife. By considering the same, it prima-facie appears that, at the time of accident, the Petitioner was earning Rupees 7,500/- p.m., which is reasonable and acceptable one. Further, now a days, even a Coolie can get minimum wages of Rupees 8,000/- p.m. Therefore, the income of Rupees 7,500/- p.m., as shown in Ex.P.9 Letter can very well be taken into for consideration of the income of the deceased at the time of accident. Hence, the income of the deceased is considered as Rupees 7,500/- p.m., at the time of accident.
24. The P.W.1 has stated that, the deceased was looking after their entire family since his father was dead, when he is too SCCH-7 23 M.V.C.NO.1317/2014 young and their family is totally depending on the income of the deceased Babu Khan and the Petitioner No.1 lost her son in her old age and other Petitioners lost their elder brother, who was looking after their welfare and their family is passing hard days without proper assistance and care and their life becoming miserable and their entire family is in mental agony and their income is deprived and they are not in the position to do the work of the deceased in taking care as a beloved mother, brothers and sisters.
25. While answering Issue No.1, this Tribunal has already come to the conclusion that, the Petitioner No.1, who is a mother and the Respondent No.3, who is a wife of the deceased are the legal representatives and dependents upon the deceased Babu Khan. While answering Issue No.2, this Tribunal has come to the conclusion that, due to negligence on the part of the rider of the offending Motor Cycle Karizma bearing No.GA-04-K-8552, the said road traffic accident was taken place, which dashed to the said deceased, who sustained grievous injury and succumbed to the accidental injuries during the course of treatment in the Hospital. Since, the Petitioner No.1 is a mother and the Respondent No.3 is a wife and they are the legal representatives and dependents upon the said deceased and the other Petitioners are the married sister and major brothers and unmarried sister and minor brother of the deceased respectively. By considering the same, the Petitioners and the Respondent No.3 are entitled for the compensation under the following heads.
26. As per the decision reported in 2013 ACJ 1403 (Rajesh and Others V/s. Rajbir Singh and Others) and as the deceased was aged 45 years at the time of accident, towards SCCH-7 24 M.V.C.NO.1317/2014 future prospects 30% of the income has to be added. So, 30% of Rupees 7,500/- comes to Rupees 2,250/-. Therefore, the income of the deceased comes to Rupees 9,750/- p.m. (Rs.7,500/- + 2,250/-).
27. The Petitioner No.1 and the Respondent No.3 are considered as dependents of the deceased. Therefore, deceased left behind 2 dependents. As per the principles laid down in Sarala Varma's Case, considering the number of the dependents, i.e., 2, 1/3rd of the income has to be deducted towards personal expenses of the deceased, i.e., Rupees 3,250/- (1/3rd of Rs.9,750/-). Therefore, loss of dependency comes to Rupees 6,500/- (Rs.9,750/- (-) Rs.3,250/-). The multiplier corresponding to the age of the deceased, i.e., 45 years, is 14 as per Sarala Varma's Case. Therefore, loss of dependency comes to Rupees 10,92,000/- (Rs.6,500/- x 12 x 14). Therefore, the Petitioner No.1 and the Respondent No.3 are entitled for Rupees 10,92,000/- towards loss of dependency due to death of Babu Khan S/o. Basha Khan.
28. The P.W.1 has stated that, the Doctor of Goa Medical College, Bambolim, conducted postmortem and later shifted to Bangalore and buried and the Petitioner No.1 spent Rupees 1,00,000/- for obsequies since shift from Goa to Bangalore. But, to consider the same, the Petitioners have not produced any documents.
29. As per the principles laid down in the decision reported in 2013 ACJ 1403 (Rajesh and Others V/s Rajbir Singh and Others), loss of consortium to the Respondent No.3, who is a wife of the deceased, should be Rupees 1,00,000/-, loss of love and affection has to be compensated by awarding Rupees 25,000/-
SCCH-7 25 M.V.C.NO.1317/2014and funeral expenses should be Rupees 25,000/-. As this Tribunal has already observed that, the Petitioner No.1 is a mother, Petitioner No.2 is a married sister, Petitioners No.3 and 4 are the brothers, the Petitioner No.5 is an unmarried sister, Petitioner No.6 is a minor brother and the Respondent No.3 is a wife of the deceased. Hence, the Respondent No.3 is entitled for a sum of Rupees 1,00,000/- towards Loss of consortium and all the Petitioners and Respondent No.3 are entitled for a sum of Rupees 25,000/- towards loss of love and affection and Rupees 25,000/- towards funeral expenses.
30. Admittedly, the deceased was died in the road traffic accident at Panaji and postmortem was conducted at Goa Medical College, Bambolim and as per Ex.P.10 Cemetery Report dated 07.12.2013, the cremation of the dead body of the deceased was conducted at Nandi Durga Road, Bangalore. From this, it appears that, the dead body of the deceased was transported from Panaji, Goa to Bangalore. Hence, the Petitioners and the Respondent No.3 have incurred huge amount towards transportation of dead body of the deceased. Hence, it is just, proper and necessary to award a sum of Rupees 20,000/- towards transportation expenses of the dead body of the deceased and Rupees 70,000/- towards loss of estate. Hence, the Petitioners and the Respondent No.3 are entitled for Rupees 20,000/- towards transportation expenses of the dead body of the deceased and Rupees 70,000/- towards loss of estate.
31. In this way, the Petitioners and the Respondent No.3 are entitled for the following amount of compensation:-
SCCH-7 26 M.V.C.NO.1317/2014Sl. No. Compensation heads Compensation amount
1. Loss of Dependency Rs. 10,92,000-00
2. Funeral Expenses Rs. 25,000-00
3. Loss of Consortium Rs. 1,00,000-00
4. Expenses of transportation Rs. 20,000-00 of dead body
5. Loss of Love and affection Rs. 25,000-00
6. Loss of Estate Rs. 70,000-00 TOTAL Rs. 13,32,000-00
32. In view of the above said reasons, the Petitioners and the Respondent No.3 are entitled for total compensation of Rupees 13,32,000/-. The Petitioners and the Respondent No.3 are also entitled for interest at the rate of 8% p.a. on the said amount of compensation from the date of the petition till payment.
33. While answering Issue No.2, this Tribunal has already come to the conclusion that, the entire negligence is on the part of the rider of the offending Motor Cycle Karizma bearing No.GA-04- K-8552 in the commission of the said road traffic accident and there was no negligence on the part of the deceased Babu Khan S/o. Basha Khan and the offending Motor Cycle Karizma bearing No.GA-04-K-8552 as well as its rider are very much involved in the said road traffic accident, which dashed to the said deceased, who had sustained grievous injury and succumbed to the said accidental injuries during the course of treatment on 07.12.2013. The Petitioners in the cause title of the petition have mentioned that, the Respondent No.2 is an insurer of the offending Motor Cycle Karizma bearing No.GA-04-K-8552 in Police SCCH-7 27 M.V.C.NO.1317/2014 No.3005/20363293/10383/000 and valid from 21.09.2013 to 20.09.2014. The Respondent No.2 in its written statement has clearly admitted that, they have insured the Motor Cycle Karizma bearing No.GA-04-K-8552 in terms of the policy of insurance issued, which is in accordance with the provisions of the Motor Vehicles Act and the liability of it is limited to the terms and conditions of the policy of insurance issued. The R.W.2, who is a Legal Retainer, has clearly stated in his examination-in-chief that, the Respondent No.2 has issued Policy in respect of the Motor Cycle Karizma bearing No.GA-04-K-8552 and the liability of their Company if any, is limited to the terms and conditions of the policy and subject to valid and effective driving licence of the driver in question. Further, the R.W.1, who is an Investigation Officer has stated in his examination-in-chief that, Sarvesh Kawlekar is an owner of the offending Motor Cycle Karizma bearing No.GA-04-K-8552. The said Sarvehs Kawlekar is a Respondent No.1 in the present petition. From these material evidence, which is very much available on record, it is made crystal clear that, at the time of accident, the Respondent No.1 was a registered owner and the Respondent No.2 is an insurer of the offending Motor Cycle Karizma bearing No.GA-04-K-8552 and it was having a valid Insurance Policy, which covers the date of accident.
34. But, only based on the said reasons, it cannot be said that, the Respondent No.1 being a R.C. Owner and the Respondent No.2 being an insurer are jointly and severally liable to pay the above said compensation and interest to the Petitioners, as, the R.W.2 has clearly stated in his examination-in-chief that, the rider of the Motor Cycle Karizma bearing No.GA-04-K-8552 was not holding valid and effective driving licence to drive the SCCH-7 28 M.V.C.NO.1317/2014 same and in this regard, the jurisdictional Panaji Police have conducted detail investigation and filed Charge Sheet as against the rider stating that, he was not holding driving licence and the owner of the Motor Cycle Karizma bearing No.GA-04-K-8552 by entrusting the vehicle to the driver, who had no valid and effective licence and violated the terms and conditions of the policy, as such, the Respondent No.2 cannot be held responsible to indemnify him. He has further stated that, under the contract of insurance entered between their Insurance Company and the owner of Motor Cycle, it is agreed that, the Respondent No.2 would indemnify in respect of any losses or damages during the validity of policy, provided the owner of the vehicle satisfies the terms and conditions of the insurance contract and it is apparent from the records of this case that, the owner of the vehicle has violated and breached the terms and conditions of the policy, as such, the Respondent No.2 is not liable to indemnify him. He has further stated in his cross-examination that, by issuing a letter to the concerned RTO, they have confirmed that, the rider of the Motor Cycle was not having a valid and effective D.L. to ride such class offending Motor Cycle at the time of accident. Further, the R.W.1, who is an Investigating Officer has clearly stated in his examination-in-chief that, Suriya @ Veeru Khandeparkar is an accused in the said crime relating to the accident in question and after completion of investigation, he has filed a Charge Sheet as against the said accused as per Ex.P.5 Charge Sheet and during the course of investigation, it is found that, the said accused Suriya @ Veeru Khandeparkar is not having a valid and effective Driving licence to ride the said offending Motor Cycle at the time of accident and he has made the same in the Charge Sheet and the meaning of 'MDL' is Motor Driving Licence. No doubt, the R.W.1 in his cross-examination has clearly stated that, during the course of SCCH-7 29 M.V.C.NO.1317/2014 investigation, he has not enquired with the concerned RTO to know whether the accused is having a valid driving licence to ride the offending Motor Cycle or not. Further, the R.W.2 in his cross- examination has stated that, they have not produced any documents to show that, their Insurance Company issued letter to the concerned RTO and no reply is issued by the said RTO to their letter. From this, it appears that, except the oral version, the R.W.1 and R.W.2, no authenticated documents is issued by the concerned RTO is available on record to show that, at the time of accident, the rider of the offending Motor Cycle was not having a valid and effective driving licence to ride the offending Motor Cycle. But, it no way affected to consider the said defence taken by the Respondent No.2 that, at the time of accident, the rider of the offending Motor Cycle was not having a valid and effective driving licence to ride such class of offending vehicle, as, it is clearly mentioned by the R.W.1 in Ex.P.5 Charge Sheet that, the rider of the offending Motor Cycle without possessing proper MDL drove the said Motor Cycle. Furthermore, Section 4 of M. V. Act is inserted by the R.W.1 along with the offences punishable under Section 279, 337 and 304(A) of IPC and Section 134(A) (B) of M.V. Act as against the rider of the offending Motor Cycle in Ex.P.5 Charge Sheet. Furthermore, no attempt is made by the Petitioners to show that, at the time of accident, the rider of the offending Motor Cycle was having a valid and effective driving licence to ride such class of offending Motor Cycle, by producing an authenticated document issued by the concerned RTO Authority. Furthermore, though the Respondent No.1 was a registered owner of the offending Motor Cycle, he was placed as exparte and as he has not appeared before this Tribunal in response to the notice. Therefore, based on the said material evidence of R.W.1 and R.W.2 as well as the contents of Ex.P.5 Charge Sheet, it can be safely SCCH-7 30 M.V.C.NO.1317/2014 held that, at the time of accident, the rider of the offending Motor Cycle Karizma bearing No.GA-04-K-8552 was not having a valid and effective driving licence to ride such class of offending Motor Cycle. From this, it is made crystal clear that, the Respondent No.1 being a R.C. Owner of the offending Motor Cycle has violated the terms and conditions of the admitted Insurance Policy. Hence, the Respondent No.2, who is an insurer, is not liable to pay the above said compensation and interest to the Petitioners and the Respondent No.3, by indemnifying the Respondent No.1. Hence, the Respondent No.1 being a registered owner of the offending Motor Cycle Karizma bearing No.GA-04-K-8552 alone is liable to pay the said compensation and interest to the Petitioners and the Respondent No.3. Hence, the petition filed by the Petitioners as against the Respondent No.1 is liable to be allowed and it is liable to be dismissed as against the Respondent No.2. In view of the above said reasons and findings on Issues, the principles enunciated in the decision cited by the Learned Counsel appearing for the Petitioners are not applicable to the present facts and circumstances of the case on hand. On the other hand, the principles enunciated in the decisions cited by the Learned Counsel appearing for the Respondent No.2 are aptly applicable to the present facts and circumstances of the case on hand. Hence, Issue No.3 is answered accordingly.
35. ADDITIONAL ISSUE :- Finding on this Additional Issue is already given on 25.08.2015 by holding that, the present petition filed by the Petitioners before this Tribunal is maintainable and this Tribunal has jurisdiction to entertain and try the present petition. Hence, this Additional Issue is answered accordingly.
SCCH-7 31 M.V.C.NO.1317/201436. ISSUE NO.4 :- For the aforesaid reasons, I proceed to pass the following, ORDER The petition filed by the Petitioners under Section 166 of the Motor Vehicles Act, 1989, is hereby allowed with costs as against the Respondent No.1.
The petition filed by the Petitioners under Section 166 of the Motor Vehicles Act, 1989, is hereby rejected as against the Respondent No.2 without costs.
The Petitioners and the Respondent No.3 are entitled for compensation of Rupees 13,32,000/-
with interest at the rate of 8% p.a. from the date of the petition till the date of payment, from the Respondent No.1.
The Respondent No.1 shall deposit the said compensation and interest in this Tribunal, within one month from the date of this Order.
The Petitioners No.1 to 6 and the Respondent No.3 shall share the SCCH-7 32 M.V.C.NO.1317/2014 compensation amount in the ratio of 20:10:10:10:10:10:30.
In the event of deposit of compensation and interest, 50% shares relating to the Petitioner No.1 and the Respondent No.3 and the entire shares relating to the Petitioners No.2 to 5 shall be released in their respective names through account payee cheques, on proper identification.
Remaining 50% shares relating to the Petitioner No.1 and the Respondent No.3 shall be kept in FD in their respective names, in any nationalized Bank of their choice, for a period of 3 years.
The entire share relating to the Petitioner No.6 shall be kept in FD in his name, in any nationalized Bank of the choice his guardian, till he attains the age of majority.
Advocate's fee is fixed at Rupees 1,000/-.
SCCH-7 33 M.V.C.NO.1317/2014Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then, pronounced by me in the open Court on this, the 14th day of June, 2016.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONERS :-
P.W.1 : Sri. Azmath Khan
2. DOCUMENTS MARKED BY THE PETITIONERS :-
Ex.P.1 : True copy of FIR
Ex.P.2 : True copy of Complaint
Ex.P.3 : True copy of Memorandum of Autopsy
Ex.P.4 : Genealogical Tree by way of Affidavit
Ex.P.5 : True copy of Charge Sheet
Ex.P.6 : True copy of Inquest Panchanama
Ex.P.7 : True copy of Spot Panchanama
Ex.P.8 : True copy of Spot Hand Sketch
Ex.P.9 : Letter
Ex.P.10 : Cemetery Report dated 07.12.2013
Ex.P.11 : Notarised xerox copy of Election Identity
Card relating to Noor Jan
Ex.P.12 : Notarised xerox copy of Election Identity
Card relating to Rafiq Khan
Ex.P.13 : Notarised xerox copy of Election Identity
Card relating to Asma Parveen
Ex.P.14 : Notarised xerox copy of Election Identity
Card relating to Ajmath Khan
Ex.P.15 : Notarised xerox copy of School Transfer
Certificate relating to Sabiha Khanam
Ex.P.16 : Notarised xerox copy of School Transfer
Certificate relating to Mansoor Pasha
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
SCCH-7 34 M.V.C.NO.1317/2014 R.W.1 : Jithin Kumar K. G.
R.W.2 : Ananth Gawnkar
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
-NIL-
(INDIRA MAILSWAMY CHETTIYAR)
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.