Bangalore District Court
In : 1. Smt.Shariff Ayesha Noorulla vs In : 1. Shri Hombe Gowda on 31 December, 2015
BEFORE THE COURT OF VIII ADDITIONAL SMALL
CAUSES JUDGE AND THE MOTOR ACCIDENT CLAIMS
TRIBUNAL (SCCH-5) AT BENGALURU
DATED THIS THE 31st DAY OF DECEMBER 2015
PRESENT: K.RAJESH KARNAM, B.Sc, LLB,
VIII ADDL. SCJ & XXXIII ACMM
MEMBER - MACT
BANGALORE
M.V.C Nos.6894, 6897, 6898, 8547, 8548 and 6206/2010
PETITIONERS IN : 1. Smt.Shariff Ayesha Noorulla
MVC NO.6894/2010 @ Ayesha,
W/o. deceased Asif Javeed,
Aged about 25 years,
2. Saadiya Fathima,
D/o. deceased Asif Javeed,
Aged about 3 years,
3. Shri. M.R.Javeed Iqbal,
S/o. Late Syed Athaulla,
Aged about 62 years.
The 2nd petitioner since minor being
represented by her natural,
mother-cum-minor guardian-cum-first
Petitioner
Smt.Shariff Ayesha Noorulla.
All are permanent residents of
No.28, 9th A Main,
B.T.M. I Stage,
Bangalore - 560 029
(By Sri.D.V.Vishwanatha Gowda,
Adv., )
PETITIONER IN : Ms. Sadiya Fathima,
MVC NO.6897/2010 D/o. Deceased Asif Javeed
Aged about 3 years
Since minor being represented
2 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
by her natural mother-cum-Minor
guardian Smt.Ayeesha Shareef,
W/o. Asif Javeed
Aged about 26 years,
Residing at No.28,
9th A Main, BTM I Stage,
Bangalore - 560 029.
(By Sri.D.V.Vishwanatha Gowda,
Adv., )
PETITIONER IN : Shri. M. Atif Javeed,
MVC NO.6898/2010 S/o. M.R. Javeed Iqbal
Aged about 25 years,
Residing at No.28,
9th A Main,
BTM I stage,
Bangalore - 560 029.
(By Sri.D.V.Vishwanatha Gowda,
Adv., )
PETITIONERS IN : Smt. Shariff Ayesha Noorulla,
MVC NO.8547/2010 W/o. deceased Asif Javeed
Aged about 25 years,
Residing at No.28,
9th A Main,
B.T.M. I Stage,
Bangalore - 560 029.
(By Sri.D.V.Vishwanatha Gowda,
Adv., )
PETITIONERS IN : 1. Shri M.R.Javeed Iqbal
MVC NO.8548/2010 S/o. Late. Syed Athaulla,
Aged about 62 years,
2.Sri. Arif Javeed,
S/o. M.R. Javeed Iqbal,
Aged about 28 years,
3. Shri. Atif Javeed,
S/o. M.R. Javeed Iqbal,
Aged about 26 years,
3 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
All are permanent residents of
No.28, 9th A Main,
B.T.M. I Stage,
Bangalore - 560 029.
(By Sri.D.V.Vishwanatha Gowda,
Adv., )
PETITIONERS IN : 1. Shri. Abid Ali Khan
MVC NO.6206/2010 S/o. Athaulla Khan,
Aged about 25 years,
2. Smt. Raisa Sulthana,
D/o. Athaulla Khan,
Aged about 22 years
3. Smt. Asfiya Ara,
D/o. Athaulla Khan,
Aged about 22 years,
4. Shri. Zahid Alikhan,
S/o. Athaulla Khan,
Aged about 20 years,
5. Shri. Athaulla Khan
S/o. Dhawood Khan,
Aged about 50 years
All are permanent residents of
No.20, I Main Road,
I Cross, Kausar Nagar,
R.T.Nagar Post,
Bangalore- 560 032.
(By Sri.D.V.Vishwanatha Gowda,
Adv., )
V/s.
RESPONDENTS IN : 1. Shri Hombe Gowda,
ALL THE CASES S/o. Thimme gowda,
No.24, Harsha Layout,
2nd Cross, 2nd Main,
Yelachenahalli,
K.R.Puram Road,
Bangalore-560 062.
4 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
RC Holder of Goods Vehicle bearing
Reg.No.KA-05-D-8428.
(By Sri.K.R.Nagendra, Advocate,
In all the cases)
2. Royal Sundaram Alliance
Insurance Company Limited,
Raghavendra Complex,
Ground Floor, No.186/7, I Cross,
Hosur Main Road, Wilson Garden,
Below Sundaram Finance Ltd.,
Bangalore - 560 027.
(Vide Policy No.VGC0140356000100
Valid from: 10-02-10 up to 09-02-11)
(By Shri V.Shrihari Naidu, Adv.,
In all the cases)
****
COMMON JUDGMENT
These petitions are filed under Section 166 of Motor
Vehicles Act, 1989, seeking compensation for the grievous
injuries sustained by the Petitioners in MVC No.6897/2010,
6898/2010 and 8547/2010 and death of victims in MVC
No.6894/2010, 8548/2010 and 6206/2010, in a road traffic
accident.
2. The case of the Petitioners that:
On 25/05/2010 deceased Asif Javeed was proceeding in
Car bearing No.KA-03-MD-1223 along with his family members to
5 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
attend function at Tayalur, Mulabagal Hobali, Kolar District, near
Mulabagal. The car was moving in extreme left side of the road
near V.Guttahalli of Mulbagal taluk and another goods vehicle
bearing No.KA-05-D-8428 coming in opposite direction struck the
Car head on. In the incident, due to the impact,
Smt.Nayeemunnissa, mother of Asif Javeed, Naseemunnisa and
Asif Javeed suffered fatal injuries and succumbed in the same
incident. Petitioners Smt.Shariff Ayesha Noorulla, her daughter
Sadiya Fathima and Atif Javeed have suffered grievous injuries.
3. In MVC No.6894/2010, first Petitioner is the wife,
second Petitioner is the daughter and 3rd Petitioner is the father of
the deceased Asif Javeed. Petitioners plead that, deceased was
working as Senior Software Engineer and earning Rs.2,50,000/-
salary p.m. The victim suffered injuries due to the impact between
Car and the Lorry and died on the way to R.L.Jalappa Hospital.
4. In MVC No.6897/2010, minor guardian of the
Petitioner pleads that, as the Petitioner aged 3 years was
traveling in the Car bearing Reg.No.KA-03-MD-1223 from
Bangalore towards Tayalur of Mulbagal Taluk, Lorry bearing
Reg.No.KA-05-D-8428 struck the Car head on, due to which, she
has suffered grievous injuries to her head. She was shifted to
6 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
R.L.Jalappa Hospital, Kolar and then shifted to Mallya Hospital,
where she took treatment as an inpatient from 26.05.2010 till
02.06.2010.
5. In MVC No.6898/2010 Petitioner pleads that, he was
driving a Car bearing Reg.No.KA-03-MD-1223. This Petitioner
pleads he was hale and healthy prior to the accident and working
as Software Engineer in M/s.Oracle India and earning Rs.47,000/-
with allowances. Again he got a job in Accenture Services Pvt.
Ltd., and earning annually from Rs.6,12,392/- to Rs.7,22,623/-
with bonus. He pleads that, he was supposed to join in May 2010.
On 25.05.2010 along with his mother Nayeem Unnisa, elder
brother Asif Javeed, sister-in-law Sharief Ayesha Noorulla @
Ayesha, his brother's daughter Saadiya Fathima and his Aunt
Naseem Unnisa were proceeding towards Tayalur of Mulbagal
Taluk. He pleads that, a Goods vehicle came in very high speed
and struck Car head on, though their vehicle was moving in the
left side of the road only at about 11.45 a.m. The accident
happened due to faulty driving of the Goods vehicle driver. Due to
the accident, he suffered grievous injuries and lost job, which he
has to join.
7 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
6. In MVC No.8547/2010, Petitioner pleads that, as she
was traveling in the Car bearing Reg.No.KA-03-MD-1223 from
Bangalore towards Tayalur of Mulbagal Taluk, Lorry bearing
Reg.No.KA-05-D-8428 struck the Car head on, due to which, she
has suffered grievous injuries to her hand and leg. She was
shifted to R.L.Jalappa Hospital, Kolar. The Petitioner pleads that,
she was Software Engineer and was earning well. Only due to
birth of the child, she was not doing work and due to the injuries
suffered she is unable to work in future, as such, she seeks
compensation for loss of earnings due to the disability suffered in
the incident.
7. In MVC No.8548/2010, Petitioners plead that,
deceased was the wife of the first Petitioner and mother of the
other two Petitioners. The Petitioners plead due to the impact,
caused by the Lorry to the Car victim Nayeemunnisa suffered fatal
injuries and died on the way to the R.L.Jalappa Hospital.
8. Similarly, in MVC No.6206/2010, Petitioners plead
that, fifth Petitioner is the husband of the victim and other
Petitioners are the children of the deceased. The Petitioners plead
due to the impact, caused by the Lorry to the Car victim
8 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
Naseemunnisa suffered fatal injuries and died on the way from
R.L.Jalappa Hospital to Bowring Hospital.
9. Petitioners pleads that, deceased of Asif Javeed was
working as a Director of the Company, where, he was working
and earning of Rs.3,00,000/- to 4,00,000/- p.m. and other
deceased had left behind their legal heirs in the respective
petitions. Petitioners pleads that the injured were shifted to
Mulbagal Hospital from there to R.L.Jalappa Hospital and Mallya
Hospital.
10. Petitioners plead that, jurisdictional Mulbagal Police
registered Crime No.134/2010 against the driver of the Lorry.
Accordingly, seeks petition relief in all the petitions respectively.
11. On service of summons, Respondents have appeared
through their counsel and filed written statement.
12. Respondent No.1 has filed written statement
submitting that, he came to know that, on 25.05.2010 his vehicle
met with an accident near Mulabagal Taluk of Kolar District. He
pleads ignorance as to inmates of the Car being suffered fatal
injuries. He denies the petition averments and submits that the
driver of the Canter had valid driving licence and he had obtained
insurance policy from the Respondent No.2, which was valid and
9 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
effective. Accordingly, seeks indemnification in case of any award
being made.
13. Respondent No.2 in the objection statement has
categorically denied the petition averments as to incident and
victim had suffered fatal injuries and succumbed in the incident.
This Respondent categorically denies the injuries suffered by the
Petitioners in respective cases. This Respondent pleads that,
Petitioners be put to strict proof of the petition averments. This
Respondent submits that, neither the insured nor the Investigating
Officer had informed this Respondent about the incident, as such,
this Respondent may be able to absolve from any liability. This
Respondent contends by denying the loss of earnings of
Rs.1,01,000/- p.m. of Asif Javeed. This Respondent denies the
death of the victims is only due to fault of the Lorry driver. This
Respondent categorically denies all the petition averments and
the claim made by the Petitioners being excessive, exorbitant and
unreasonable one.
14. The Respondent No.2 after further written statement
submits that, as per the Spot Sketch, there is no deviation in the
spot, the Car driver had taken Car from left side of the road
towards road side crossing the median and was driving against on
10 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
coming traffic. Therefore, there is 100% negligence on the part of
driver of the Car and as such, driver of the Lorry though conscious
and was driving properly due to fault made by the Car driver, the
incident did happened due to which, this Respondent is not liable
to pay any compensation. Accordingly, seeks dismissal of
petitions with cost.
15. On the basis of these materials, my predecessor in
office has framed the following issues:
Common Issues In MVC No.6894, 8548/2010 and
6206/2010
1. Whether the Petitioners proves that on
25.05.2010 at about 11.45 am, near V.
Guttahalli gate of Mulbagal Taluk on NH-4 road,
i.e., Chennai-Bangalore road in between Kolar -
Mulabagal of Kolar Dist., he met with an
accident and died was due to the actionable
negligence act on the part of the driver of Goods
vehicle bearing Reg.No.KA-05-D-8428 as
alleged?
2. Whether the Petitioners prove that they are the
Legal Representatives of Deceased?
3. Whether the petitioners are entitled for
compensation? If so, what amount and from
Whom?
4. What Order?
11 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
Common Issues In MVC No.6897, 6898 and 8547/2010
1. Whether the Petitioners prove that on
25.05.2010 at about 11.45 a.m. near
V.Guttahalli Gate of Mulabagal Taluk on NH-4,
i.e., Chennai-Bangalore road in between Kolar-
Mulbagal of Kolar District, they met with an
accident and sustained injuries was due to
actionable negligent act on the part of the driver
of the Goods Vehicle bearing Reg.No.KA-05-D-
8428 as alleged?
2. Whether the Petitioners are entitled for
compensation? If so, how much and from
whom?
3. What order?
16. At trial, Petitioners and Doctors have been clubbed
and led evidence namely PW-1 to 9 were injured and Medical
Officers, who have treated the injured persons and have given
opinion about the disability. Petitioners have got exhibited Ex.P.1
to P.47 (a). In response, the Respondents have examined as RW-
1 to RW-3 and got marked documents at Ex.R.1 to R.4.
Ex.P.1 to Ex.P.8 have marked separately before clubbing in
MVC No.6206/2010, which is transferred from SCCH No.11.
17. On hearing, both sides the case is reserved for
judgment.
18. The above issues are answered as follows:
12 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
Issue No.1 in all the : Partly in the Affirmative
cases
Issue No.2 in : In the Affirmative
MVC No.6894/2010,
8548/2010 and
6206/2010
Issue No.3 in : The Petitioners are entitled for
MVC No.6894/2010 compensation of Rs.85,63,200/-
with interest at the rate of 6% p.a.
from the date of petition till
realization of same from
Respondents.
Issue No.2 in : The Petitioner is entitled for global
MVC No.6897/2010 compensation of Rs.60,000/- with
interest at the rate of 8% p.a. from
the date of petition till realization of
same from Respondents.
Issue No.2 in : The Petitioner is entitled for
MVC No.6898/2010 compensation of Rs.4,00,894/-
with interest at the rate of 8% p.a.
from the date of petition till
realization of same from
Respondents.
Issue No.2 in : The Petitioner is entitled for
MVC No.8547/2010 compensation of Rs.1,97,570/-
with interest at the rate of 8% p.a.
from the date of petition till
13 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
realization of same from
Respondents.
Issue No.3 in : The Petitioners are entitled for
MVC No.8548/2010 compensation of Rs.8,67,000/-
with interest at the rate of 6% p.a.
from the date of petition till
realization of same from
Respondents.
Issue No.3 in : The Petitioners are entitled for
MVC No.6206/2010 compensation of Rs.9,47,000/-
with interest at the rate of 6% p.a.
from the date of petition till
realization of same from
Respondents.
Issue No.3 in : As per final order for the following:
MVC No.6897,
6898, and
8547/2010 and
Issue No.4 in
MVC No.6894,
8548/2010 and
6206/2010
REASONS
19. Issue No.1 in all the cases: Petitioners in all the
cases have made similar plea that, the victims were moving in the
14 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
Car bearing Reg.No.KA-03-MD-1223 belonging to Mr.M.R.Javeed
Iqbal driven by Atif Javeed was moving from Bangalore towards
Tayalur of Mulbagal Taluk to attend a family function, near
V.Guttahalli, the Canter bearing Reg.No.KA-05-D-8428 came
from opposite direction and struck the Car head on resulting in
fatal and grievous injuries to the inmates of the Car. Petitioners
specifically plead that, the complainant Ayesha S. has given
complaint before the Police immediately as she was shifted to
R.L.Jalappa Hospital. The Police by registering crime 134/2010
against the driver of the Canter had charge sheeted. In the written
statement, Respondent No.1 has admitted the incident, but he
does not dispute the particulars given by the Petitioners with
regard to incident. In para No.2, the Respondent No.1 submits
Petitioners are put to strict poof of the petition averments, since
his driver is not at fault. The Respondent No.2 in the additional
written statement filed has specified that the incident happened
due to fault of the Car driver, who had driving in the opposite
direction by crossing over the median.
20. At trial PW-1 in her affidavit evidence has reiterated
about the incident in page No.2 and 3. Similarly, other Petitioners
namely eyewitness PW-2 has also reiterated the incident being
15 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
happened due to fault of the Canter in page No.2 of his affidavit
evidence. The Petitioners have examined PW-8, Afshad Pasha,
who is witness to the spot mahazar. This witness reiterates about
the incident being happened as pleaded by the Petitioners. In the
cross-examination, he pleads ignorance about one Mohammed
Wasim, being eye witness, who present at the time of the
mahazar. He denies the suggestions made by the learned
Respondent counsel.
21. The Insurance Company has got examined the driver
of the Canter as RW-3, who also deposes about the incident. In
the cross-examination of PW-1, about the incident in page No.3
middle portion she gives the descriptions where, who was sitting
in the Car and she denies the accident happened due to
negligence of the Car driver. In her further examination at page
No.5, she has produced reply given by NAHAI as per Ex.P.46 and
Ex.P.47 is the letter written by Lanco with regard to situation of
the spot. In page No.8 she deposes that, the Car was moving
from cross road to main road. She replies they were moving from
Bangalore to Mulabagal. She pleads ignorance about the spot
sketch. She deposes the spot sketch prepared by the Police as
per Ex.R.2. She volunteers that there were diversion in the left
16 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
side, which is not shown. She pleads ignorance that, spot
mahazar was drawn in presence of eye witness, in this case. She
pleads ignorance about the eye witness and also spot mahazar
witness. To the specific question that the Car was moving on right
side as per spot sketch, she deposes due to impact Car was
thrown to right side. She admits there was road divider as per
spot sketch and there is no diversion shown. She denies Car
driver was driving in the wrong way before the impact. She denies
purposefully she has not produced spot sketch.
22. PW-2 in page No.2 deposes that, he was driving Car
at the time of the accident. He denies the road is a small one, he
deposes road is a two way road. He denies that road was not
blocked.
23. PW-8 in his cross-examination admits that, he has
signed Ex.P.3 as per Ex.P.3(a), but he deposes he does not know
Mohammed Wasim. He admits the boundaries mentioned in the
spot mahazar is correct.
24. In the evidence of driver of Canter, he deposes his
vehicle was loaded with heavy goods. He was moving at 40 k.m.,
Car came from opposite direction in very high speed. He deposes
there was no construction going on in the right side of the road
17 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
leading from Mulabagal towards Bangalore. He deposes incident
happened about 10.00 to 10.30 a.m. He deposes road was 4
lane. He deposes Cleaner was also present on that day in his
vehicle. He denies the suggestions that road was under repair on
the other portion leading from Bangalore to Mulabagal.
25. In the written arguments, Petitioner counsel has
argued vehemently about the incident being happened due to
fault of the Canter driver only and road was closed due to repair
work.
26. On going through documents placed on record,
evidence, Police records are very clear and it does not disclose
that, as admitted by the witnesses there is no any diversion
shown for the vehicles to go in to and fro. If at all, there is a
diversion and vehicles are actually moving to and fro in the spot,
Investigating Officer cannot ignore the same in the entire
investigation.
27. Therefore, the prayer of the Petitioners that, road was
closed on the other side leading from Bangalore to Mulabagal
cannot be considered is my firm view. In the case on hand, as per
the Spot Sketch there is a space of 6 ft. from the spot to the
centre median. In fact, impact has occurred as the Car went
18 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
straight towards the Truck and both vehicles colluded head on,
they have changed their direction one towards right and other
towards left. The impact and injuries to the victims and death of
the victims discloses that, the Car driver has taken to left side of
the Truck, to which, left portion of both vehicles have struck head
on. The learned Respondent counsel argues if at all the Car is
actually moving in to and fro way due to diversion even for
argument sake, then definitely Car would have been to the
extreme left of the road and impact if at all happened head on,
would be between Car right portion and Truck right portion. The
damages to the vehicle as per IMV Report produced by the
Respondent and Petitioners in MVC No. 6206/2010 discloses
front and left portion of the Car, in entirety has been damaged.
The Lorry left and front portion has been extensively damaged. All
these facts discloses that, the Car driver had ventured into right
side of the road and further tried to take the Car towards extreme
right. In the event, impact has occurred is evident. Considering
the person sitting the left to the driver and behind him were killed
in the incident discloses that, entire force of the Car and the Truck
has transgressed towards left portion of the Car only seems that,
driver and behind him one passenger along with baby are safe,
19 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
rather less injured. Therefore, the arguments of learned
Respondent counsel that the Car driver is also negligent resulting
in the incident is evident. Under these circumstances, irrespective
of the fact that, there was any deviation or not, the impact has
occurred on one side of the road and the careful and cautious
driving would have saved lives.
28. In this regard, the learned Petitioners counsel has
produced the following citations:
i) 2009 ACJ 1314 between Usha Rajkhowa and
others V/s. Paramount Industries and others, wherein it is held
that,
Negligence-Contributory negligence-Res ipsa
loquitur-Collision between a truck and car coming from
opposite directions resulting in death of car driver and a
passenger and another passenger sustained injuries-
Injured passenger deposed that truck was coming from
opposite direction at high speed and hit the car which
was going on its correct side but he could not clearly
say as to which vehicle was at fault - Insurance
company of truck failed to bring panchanama of spot
showing tyre marks caused by brakes and panchnama
of damaged vehicles- No evidence to suggest any
failure of car driver in taking care or that he had
breached his duty in any manner-Impact by truck to the
car was so powerful that two persons in the car died on
20 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
the spot-Tribunal has not given any finding of
contributory negligence of the deceased car driver-
Words 'contributory negligence' nowhere appear in the
award of the Tribunal-Tribunal awarded to the
claimants half of the amount assessed from where
inference could be drawn that Tribunal gave a finding of
contributory negligence- High Court referring to the
evidence of the witness confirmed contributory
negligence of the car driver-Apex Court applying the
doctrine of res ipsa loquitur held that accident took
place due to negligence of truck driver and there was
no negligence of car driver.
ii) 2013 ACJ 2141 between Jiju Kuruvila and others
V/s. Kunjujamma Mohan and others, wherein it is held that,
Negligence-Contributory negligence-Head-on collision
between a car and bus coming from opposite directions
resulting in death of car driver-Claimants contended
that accident occurred due to rash and negligent driving
of bus driver-Eyewitness who was accompanying the
deceased stated that bus hit the car and accident
occurred due to rash and negligent driving of bus
driver-F.I.R. was lodged against bus driver and police
after investigation filed charge sheet against bus driver-
neither owner of bus nor its driver had denied before
the Tribunal and High Court the allegation of the
claimants against the bus driver-insurance company of
bus relying upon post-mortem report contended that
21 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
accident took place due to negligent driving of the
deceased who was in intoxicated condition-No
evidence to suggest any negligence of the deceased-
Scene mahazar does not suggest any negligence on
his part-Post mortem report suggests that deceased
had taken liquor but on this basis no definite finding can
be given that deceased was driving the car rashly and
negligently-Mere suspicion based on scene mahazar
and post-mortem report cannot take the place of direct
evidence of eyewitness, F.I.R. and charge sheet-
Tribunal apportioned liability for the accident in the ratio
of 75:25 between driver of bus and the deceased which
was modified by High Court as 50:50 -Apex Court
reversed the finding on negligence and held that there
was no negligence of the deceased and bus driver was
solely negligent in causing the accident.
iii) 2014 ACJ 627 between Syed Sadiq and others V/s.
Divisional Manager, United India Insurance Co. Ltd., wherein it
is held that,
Negligence-Contributory negligence-Tractor-trailer
came on the right side of its road and hit 3 persons who
were proceeding on the left side of their road pushing a
punctured motor cycle and all 3 persons sustained
injuries-Tribunal concluded that though charge-sheet
has been filed by police against tractor driver, injured
persons contributed to the accident to the extent of 25
per cent-Tribunal's finding upheld by High Court-
22 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
Whether the Tribunal was justified in concluding that
claimants are liable for contributory negligence without
the same being proved by the opposite parties-Held:
no; finding set aside.
iv) 2014 ACJ 2550 between Kiran V/s. Sajjan Singh
and others, wherein it is held that,
Negligence-Contributory negligence-Collision between
a tractor and motor cycle coming from opposite
directions and motor cyclist and two minor children on
pillion sustained injuries-Accident occurred in the
middle of road and Tribunal presumed that motorcyclist
was rash and negligent and found that both the drivers
were equally negligent-High Court modified the blame
for the motorcyclist and tractor driver to 25:75-Apex
Court observed that motor cyclist would have taken
sufficient caution since he was traveling with his two
minor children-No evidence of negligence on the part of
motor cyclist-Apex Court reversed the finding of
negligence and held that tractor driver was solely
responsible for the accident as he was driving a heavier
vehicle.
v) 2014 ACJ 2648 between Ashvinbhai Jayantilal Modi
V/s. Ramkaran Ramchandra Sharma and another, wherein it is
held that,
23 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
Negligence-Contributory negligence-Hitting from
behind-Truck hit a two-wheeler from behind, dragged it
to a distance of 20-25 ft. and rider of two-wheeler
sustained fatal injuries-Impact on two-wheeler shows
that truck must have been traveling at a high speed and
its driver did not have sufficient control over his vehicle-
Truck driver was driving a heavy motor vehicle and
should have taken sufficient caution-No direct evidence
showing negligence of the deceased that led to the
accident-Tribunal found that two-wheeler rider
contributed to the accident to the extent of 20 per cent
and it was affirmed by High Court-Apex Court set aside
the finding of contributory negligence and held that
truck driver was solely responsible for the accident.
vi) (2014) Acci.C.R.469 (S.C.) between Meera Devi and
another V/s. H.R.T.C. and others, wherein it is held that,
Motor Vehicles Act, 1988-Section 168 and 173-
Negligence- contributory negligence-Fatal accident-
Amount of compensation reduced by High Court from
Rs.3,17,200/- to Rs.1,58,600/- on ground of
contributory negligence-Collision of Scooter with Truck-
To prove contributory negligence there must be cogent
evidence-There is no specific evidence to prove that
accident has taken place due to rash and negligent
driving of deceased scooterist-Doctrine of common law
cannot be applied in present case-At the site where
24 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
there was a curve, bus driver did not blow horn and bus
was being driven at a very high speed-Reasoning given
by High Court has no basis and compensation
awarded by Tribunal was just and reasonable-Appeal
allowed.
vii) ILR 2015 KAR 2669 between Smt. Reshma S. Ganga V/s.
Benagonda Erappa Biradara and others, wherein it is held that,
MOTOR VEHICLES Act, 1988 - SECTION 166 - Accident
claim - Judgment and Award allowing the claim in part -
Appealed against by the Insurer and the Claimant- Tribunal
fixing the entire negligence on the part of the driver of the bus
- Respondent-appreciation of evidence on record -
Respondent-assessment of income of the Claimant - HELD,
The Tribunal, placing reliance on the contents of FIR,
complaint, Spot panchanama, IMV report and other
documents. Ex.P1, Exs.P2 and 3 has observed that, the
documents produced by the claimant clearly establish that
the front left tyre of the bus has ran over on the legs of the
claimant and the witnesses who have seen the accident have
stated before the Police that driver of the bus was
responsible for the accident. - The Tribunal has recorded a
finding of fact that the entire negligence is on the part of the
driver of the bus. The said finding of fact recorded by the
Tribunal after critical evaluation of the oral and documentary
evidence and after recording the finding of fact is just and
reasonable and therefore, it does not call for interference.
25 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
Further Held, On account of the injuries sustained by
the claimants, she has taken treatment as inpatient for 117
days and underwent two surgeries. On account of the injuries
sustained by the claimant she has suffered permanent
disability and to prove the same, she examined the Doctor.
On going through the citations the panchanama was not
placed before Trial Court, as such, Hon'ble Supreme Court has
applied res ipsa loquitur principle. However, in this case the plea
of the petitioners differ from the Police records. They plead road
was closed leading from Bangalore to Mulabagal by a diversion.
in fact, Investigating Officer never mentioned about diversion in
spot. Therefore, the citation cannot be followed as facts pleaded
are to be proved.
viii) 2013 ACJ 1423 between B.U.Chaitanya V/s.
Managing Director, Bangalore Metropolitan Transport
Corporation and another, wherein it is held that,
Negligence-Hitting from behind-Corportion bus hit
a scooter from behind and scooterist and 2 minor girls
on pillion fell down and sustained injuries and scooterist
succumbed to his injuries-Defence that bus was not
being driven in a rash and negligent manner, scooterist
came from left side cross road, suddenly entered main
road without noticing bus and dashed against it-Pillion
rider deposed that bus hit the scooter from behind and
26 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
she denied that accident had occurred due to rash and
negligent riding of scooter by her father-Perusal of FIR.,
sketch and panchanama indicates that bus hit against
the scooter-Case was registered against bus driver-
Tribunal recorded a finding that driver of bus was
responsible for the accident-Tribunal's finding upheld.
The above citation cannot be followed since the impact has
occurred between vehicles moving in same direction.
29. Under these circumstances, this Court is obliged to
saddle contributory negligence on the part of driver of the Car to
an extent of 25% and Truck driver is saddle with contributory
negligence of 75% resulting in the incident. Accordingly, Issue
No.1 is answered partly in the affirmative in all cases.
30. Issue No.2 in MVC No.6894/2010, 8548/2010 and
6206/2010: In proof of Issue No.2, Petitioners being legal
representatives of the deceased in MVC No.6894/2010,
8548/2010 and 6206/2010 have specifically pleaded in column
No.22 about the incident and relationship in their affidavit
evidence.
31. PW-1 in MVC No.6894/2010 has reiterated the same
facts. She has placed Ex.P.8 and 9 Passport of Petitioners No.1
and 2 respectively. She has also produced Ex.P.3 Inquest
27 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
Mahazar and Ex.P.4 P.M.Report, wherein it is clearly mentioned
father name of the deceased Asif Javeed.
32. PW-3 in MVC No.8548/2010 has reiterated the same
facts. He has produced Ex.P.25 Inquest Mahazar and Ex.P.26
P.M.Report, wherein it is clearly mentioned Petitioner's name as
husband of the deceased Smt.Nayeemunnisa.
33. PW-7 in MVC No.6206/2010 has reiterated the same
facts. He has produced Ex.P.4 Inquest Mahazar and Ex.P.5
P.M.Report, wherein it is clearly mentioned Petitioner No.5 name
as husband of the deceased Smt.Naseemunnisa. On going
through documents, Petitioners have placed documents in proof
of the identification with regard to relationship with the respective
deceased. Accordingly, Issue No.2 is answered in the affirmative
in the above cases.
34. Issue No.4 in MVC No.6894/2010: Petitioners plead
that, deceased was Software Engineer and earning Rs.1,01,000/-
p.m. with allowances. Petitioners plead due to untimely death of
the victim in road traffic accident, they have lost bread earner of
the family. In this regard, Petitioner No.1 has entered witness box
as PW-1. She has deposed by placing documents namely Ex.P.3
Inquest Mahazar, Ex.P.4 P.M. Report of the deceased. Petitioner
28 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
has also placed Ex.P.41 Employment Letter issued by the Target
Company, Ex.P.43 is the Salary particulars of the deceased and
Ex.P.44 Judgment copy in C.C.NO.351/2010, Further, Petitioner
got examined herself and placed Ex.P.45, the Account Extract of
the deceased husband to prove the salary and incentives
received by her husband.
35. On going through the materials on record, as per the
documents placed and the evidence of PW-1, the Petitioner has
also examined PW-7, Nehal Khadeer, Executive of the Target
Corporation of India Pvt. Ltd., who has deposed that as per
Ex.P.43 Payslip, deceased was earning. In his cross-examination,
he admits the salary will be disbursed through account only. The
witness also admits the salary includes perks and allowances out
of gross salary will be credited to the account and the salary will
vary from the month of May.
36. The learned Petitioner counsel argues the salary of
the deceased is to be considered at Rs.1,01,000/- as pleaded
since he had very bright future and he would have attained
Directorship of the Company, he was very young at the time of the
incident. Therefore, the plea of the Petitioners are proper, same is
to be considered. The learned Respondent counsel argues as per
29 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
Ex.P.45, Account Statement discloses salary is of Rs.86,400/-
only. Therefore, in support of incentives and other amount
released by the company cannot be considered as salary, The
incentives will be given only to the performance of the person,
who is working. In Ex.P.45 as on 31.03.2009 salary of the
deceased was shown as Rs.49,719/- only and in the month of
August as on 31.08.2009 it is shown as 34,942/- only and as on
26.02.2010 salary is shown as Rs.62,571/-. Therefore, it is
variable and it is not fixed. Therefore, Rs.1,00,000/- salary
pleaded by the Petitioners cannot be considered as basis for loss
of earnings. The materials on record discloses that, deceased
was earning Rs.86,700/- prior to the date of the incident, as such,
same is considered. The allowances and other perks, which are
not part of the salary as argued by the learned Respondent
counsel is a reasonable prayer. Accordingly, the salary of the
deceased is considered as Rs.86,700/- p.m.
37. In this regard, the learned Petitioners counsel has
produced the following citations:
i) 2014 ACJ 903 between Amulya Reddy and others
V/s. New India Assurance Co. Ltd. and another, wherein it is
held that,
30 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
Quantum-Fatal accident-Deceased aged 35,
Senior Systems Engineer in multinational company,
drawing Rs.1,05,400 p.m. - Claimants: widow, minor
child and parents-Tribunal assessed income at
Rs.20,000 p.m., deducted 1/3rd for personal
expenses of the deceased, adopted multiplier at 16
and awarded Rs.43,38,000/- Appellate court
assessed income of Rs.1,05,000 p.m. added 50 per
cent of income for future prospects, deducted
Rs.47,410/- p.m. for income tax and Rs.200 p.m., for
professional tax and fixed income at Rs.1,10,670
p.m., deducted ¼ th for personal expenses of the
deceased assessed dependency at Rs.82,853 p.m.,
adopted multiplier of 16 and awarded Rs. 1,59,07,776
plus Rs.45,000 under conventional heads-Award of
Rs.43,38,000 enhanced to Rs.1,59,52,776.
ii) (2015) Acci.C.R.624 (S.C.) between Munna Lal Jain and
another V/s. Vipin Kumar Sharma and others, wherein it is held
that,
Motor Vehicles Act, 1988-Section 168-Compensation-
Computation of-Accidental death-Deceased aged 30
years, was bachelor and self-employed-Deduction of
50% towards personal and living expenses is not to
be disturbed-Multiplier is to be used with reference to
age of deceased-Multiplier in case of age of deceased
between 26 to 30 years is 17-There is no grievance
on fixation of monthly income as Rs.12,000/- by High
Court-Amount of compensation enhanced to
Rs.18,36,000/-.
38. The learned Respondent No.2 counsel has produced the
following citations:
i) Special Leave C.C. No.8058/2014 between National
Insurance Co. Ltd., V/s. Pushpa and others, wherein it is held
that,
31 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
Be it noted, though the decision in Reshma
(supra) was rendered at earlier point of time, as is
clear, the same has not been noticed in Rajesh
(supra) and that is why divergent opinion have been
expressed. We are of the considered opinion that as
regards the manner of addition of income for future
prospects there should be an authoritative
pronouncement. Therefore, we think it appropriate to
refer the matter to a larger bench.
ii) M.F.A. No.4332/2013 (M/V) between New India
Assurance Co. Ltd., V/s. Sri. K. Pushparaj and ors.
In the case on hand, as per the documents placed, the
learned Respondent counsel by relying on the unreported citation
MFA No.4332/2013 submits when document is not placed to
prove age of the deceased, then youngest parent age as per the
Hon'ble High Court of Karnataka order is to be considered.
39. On going through entire documents though PW-1
Ayesha Noorulla specifically admits the PAN Card, Passport and
other documents of deceased Asif are available, they have not
been placed. however, in this case on hand, to apply the MFA
observations, the mother of the deceased is also died in the same
incident. Therefore, this Court cannot consider the prayer of the
learned Respondent counsel. However, the age of the deceased
is more than 30 years is evident from Inquest and other
32 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
documents. Accordingly, '16' multiplier is applicable as per the
decision of Hon'ble Supreme Court of India reported in 2009 ACJ
1298 in case of Sarla Verma & Others V/s. Delhi Transport
Corporation & Another. As there are three dependents, out of
income of Rs.86,700/-, 1/3rd of the same to be deducted towards
personal expenses. As such, monthly income of deceased comes
to Rs.57,800/- (1/3rd of Rs.86,700/-= Rs.28,900/-) per month.
Therefore, loss of dependency would be Rs.57,800/- x 12 x 16 =
Rs.1,10,97,600/-. Further, 1st petitioner is entitled for
compensation of Rs.50,000/- towards loss of consortium. It is
awarded Rs.1,20,000/- (Rs.40,000/- each to Petitioners No.1 to 3)
towards loss of love & affection and loss of estate. Rs.50,000/-
towards loss of care and protection for Petitioner No.2, minor child
and Rs.20,000/- towards funeral and incidental expenses.
40. In all, Petitioners in MVC No.6894/2010 are entitled
for total compensation of Rs.1,13,37,600/- for the death of Asif
Javeed.
41. Out of the compensation amount, 25% is deducted
towards contributory negligence of the Car driver, as the owner
and insurer of the Car being not made party, as such, final award
is Rs.85,63,200/-
33 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
42. Issue No.2 in MVC No.6897/2010: The Petitioner is
minor aged about 3 years. In column No.22 it is specifically plead
that, this Petitioner suffered injuries in the road traffic accident.
PW-1 in her affidavit evidence has deposed about the injuries
suffered by the Petitioner and she has placed Wound Certificate
as Ex.P.15, Discharge Summary as Ex.P.16 and Ex.P.18 Medical
Bills. On going through the document Wound Certificate as
Ex.P.15, this Petitioner has suffered displaced right clavicle
fracture, which is grievous one. Accordingly, Petitioner has been
awarded global compensation of Rs.80,000/- including medical
bills.
43. The Petitioner Sadiya Fathima in MVC
No.6897/2010 is entitled for global compensation of Rs.80,000/-.
44. Out of the compensation amount, 25% is deducted
towards contributory negligence of the Car driver, as the owner
and insurer of the Car being not made party, as such, final award
is Rs.60,000/-
45. Issue No.2 in MVC No.6898/2010: The Petitioner
has specifically plead that, he has suffered grievous injuries in the
incident. The Respondent has categorically denied the same.
During the course of trial, Petitioner got examined himself as PW-
34 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
2 and he had placed Ex.P.19 Wound Certificate, Ex.P.20
Discharge Summaries of Mallya Hospital and Fortis Hospital
along with medical bills of Rs.3,84,525/-. He had underwent
surgery and even for removal of implants.
46. This Petitioner in proof of his injuries had examined
PW-4, who had also opined about disability suffered by this
Petitioner. He has placed 2 Case Sheets, Scan Report. Further
PW-5 Dr.Surendranath Shetty is examined, who deposed about
disability of the Petitioner to an extent of 15% to the whole body.
In the cross-examination this witness admits that, Petitioner has
suffered injuries to his wrist. This witness denies the suggestions
made by the learned Respondent counsel.
47. On going through the materials on record, injuries
suffered by the Petitioner, he had suffered about 6 injuries among
them 2 injuries are grievous. The fractures to the ribs and left
shaft humerus are grievous in nature.
48. Petitioner has been awarded an amount of
Rs.1,00,000/- towards pain and suffering. Medical bills to the tune
of Rs.3,84,525/- is allowed, as prayed. This Petitioner has
pleaded in his petition that, he has suffered non-getting of
employment immediately in the month of May to which, he has to
35 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
join. In the cross-examination of PW-2 to that effect he deposes
he has been now employed and getting his salary as Senior
Software Engineer. Under these circumstances, plea of the
Petitioner to that effect cannot be considered is my firm view.
Petitioner has been awarded an amount of Rs.50,000/- towards
loss of amenities.
49. The Petitioner Atif Javeed in MVC No.6898/2010 is
entitled for compensation of Rs.5,34,525/-.
50. Out of the compensation amount, 25% is deducted
towards contributory negligence of the Car driver, as the owner
and insurer of the Car being not made party, as such, final award
is Rs.4,00,894/-.
51. Issue No.2 in MVC No.8547/2010: The Petitioner
has specifically pleaded in column No.22 that, she suffered
fracture of both bones of right arm, inferior ramus left side. She
first took treatment at R.L.Jalappa Hospital and she was shifted to
Bangalore, where she took treatment as inpatient in Mallya
Hospital. As per Ex.P.10 she had suffered 3 injuries among them
injury No.1 and 3 are grievous in nature. On X-ray right forearm
comminuted fracture of both bones middle 1/3rd and inferior pubic
rami fracture of left pelvis is observed. On going through Ex.P.11
36 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
Discharge Summary and photographs which discloses, a scalp on
her hand.
52. The Petitioner has also summoned PW-6
Dr.P.V.Manohar, who deposes about the injuries suffered and this
witness deposes implants are in situ and it is opined that
Petitioner has suffered 12% disability to the whole body. It is
admitted that, there is no reference made from Mallya Hospital
about need of another surgery. On going through materials on
record, the Petitioner plea that, she was Software Engineer
previous to the birth of the child namely Sadiya, due to child birth
she left her job, but she has aspiring to join job. But, due to
fracture to her right hand, she is unable to work. She has also
produced Ex.P.47(a) Bank Account Statement. It is pleaded that,
disability is to be considered and she was able to earn.
Accordingly, she seeks compensation as to her qualification.
53. On going through documents and materials on record,
Petitioner has been awarded an amount of Rs.1,00,000/- towards
pain and suffering. She has produced Ex.P.13 Medical Bills to the
tune of Rs.93,426/- and the same has been allowed as prayed
towards medical expenses. Petitioner for the disability suffered
and also loss of amenities, has been awarded an amount of
37 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
Rs.50,000/-. For future medical expenses, the Petitioner has been
awarded an amount of Rs.20,000/-.
54. The Petitioner Shariff Ayesha Noorulla in MVC
No.8547/2010 is assessed compensation of Rs.2,63,426/-.
55. Out of the compensation amount, 25% is deducted
towards contributory negligence of the Car driver, as the owner
and insurer of the Car being not made party, as such, final award
is Rs.1,97,570/- excluding future medical expenses of Rs.20,000/-
56. Issue No.3 in MVC No.8548/2010: In the case on
hand, Petitioners have specifically pleaded in column No.22 about
the death of the victim in road traffic accident. In that regard,
Petitioners got examined Javeed Iqbal, husband of the deceased
as PW-3. In consonance with the plea, in the affidavit evidence
they have reiterated the same facts. He has produced Ex.P.24
Inquest Mahazar and Ex.P.25 P.M.Report. On going through
inquest mahazar and P.M.Report, victim succumbed in the road
traffic accident. Hence, I am of the firm opinion that, Petitioners
have placed sufficient materials to prove that the victim
succumbed in a road traffic accident. Petitioners have specifically
pleaded that, deceased was a House Wife. Under these
circumstances, considering the deceased as house wife, this
38 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
Court is obliged to consider her loss of service to the family. By
relying on the decision reported in AIR 2011 SC 2951, in case of
Ramachandrappa V/s Royal Sundaram Allianz Insurance
Company Limited, the monthly income of deceased is taken at
Rs.6,000/-. As her entire service would be for the family, no
deductions are made as to personal. The deceased was aged
about 50 years as per Ex.P.24 Inquest Mahazar and Ex.P.25
P.M.Report. For the age group of 46 - 50 years, '13' multiplier is
applicable as per the decision of Hon'ble Supreme Court of India
in the case of Sarla Verma Vs. Delhi Transport Corporation,
reported in (2009) 6 SCC 121. Therefore, loss of dependency
would be Rs.9,36,000/- (Rs.6,000/- x 12 x 13). Accordingly, this
Court is obliged to award an amount of Rs.9,36,000/- towards
loss of dependency. Further, 1st Petitioner is entitled for
compensation of Rs.25,000/- towards loss of consortium. Further,
Petitioners are awarded Rs.60,000/- (Rs.20,000/- each to
Petitioners 1 to 3) towards loss of love and affection, Rs.60,000/-
towards loss of estate (Rs.20,000/- each to Petitioners 1 to 3) and
1st Petitioner has been awarded an amount of Rs.20,000/-
towards funeral and incidental expenses.
39 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
57. In all, Petitioners in MVC No.8548/2010 are entitled
for compensation of Rs.11,01,000/- for the death of
Nayeemunnisa.
58. Out of the compensation amount, 25% is deducted
towards contributory negligence of the Car driver, as the owner
and insurer of the Car being not made party, as such, final award
is Rs.8,67,000/-.
59. The 2nd and 3rd Petitioners are entitled for
compensation of Rs.80,000/- (Rs.40,000/- each) only and the rest
of the award amount is to be given to 1st Petitioner.
60. Issue No.3 in MVC No.6206/2010: In the case on
hand, Petitioners have specifically pleaded in column No.22 about
the death of the victim in road traffic accident. In that regard,
Petitioners got examined Zahid Ali Khan, son of the deceased as
PW-9. In consonance with the plea, in the affidavit evidence they
have reiterated the same facts. He has produced Ex.P.4 Inquest
Mahazar and Ex.P.5 P.M.Report. On going through inquest
mahazar and P.M.Report, victim succumbed in the road traffic
accident. Hence, I am of the firm opinion that, Petitioners have
placed sufficient materials to prove that the victim succumbed in a
road traffic accident. Petitioners have specifically pleaded that,
40 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
deceased was a Tailor and she was earning Rs.8,000/- to 9,000/-
p.m. During the course of trial, they have not placed any
document to that effect. Under these circumstances, considering
the deceased as house wife, this Court is obliged to consider her
loss of service to the family. By relying on the decision reported in
AIR 2011 SC 2951, in case of Ramachandrappa V/s Royal
Sundaram Allianz Insurance Company Limited, the monthly
income of deceased is taken at Rs.6,000/-. As her entire service
would be for the family, no deductions are made as to personal.
The deceased was aged about 48 years as per Ex.P.4 Inquest
Mahazar and Ex.P.5 P.M.Report. For the age group of 46 - 50
years, '13' multiplier is applicable as per the decision of Hon'ble
Supreme Court of India in the case of Sarla Verma Vs. Delhi
Transport Corporation, reported in (2009) 6 SCC 121.
Therefore, loss of dependency would be Rs.9,36,000/- (Rs.6,000/-
x 12 x 13). Accordingly, this court is obliged to award an amount
of Rs.9,36,000/- towards loss of dependency. Further, 5th
Petitioner is entitled for compensation of Rs.25,000/- towards loss
of consortium. Further, Petitioners are awarded Rs.1,00,000/-
(Rs.20,000/- each to Petitioners 1 to 5) towards loss of love and
affection, Rs.1,00,000/- towards loss of estate (Rs.20,000/- each
41 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
to Petitioners 1 to 5) and 5th Petitioner has been awarded an
amount of Rs.20,000/- towards funeral and incidental expenses.
61. In all, Petitioners in MVC No.6206/2010 are entitled
for compensation of Rs.11,81,000/- for the death of
Naseemunnisa.
62. Out of the compensation amount, 25% is deducted
towards contributory negligence of the Car driver, as the owner
and insurer of the Car being not made party, as such, final award
is Rs.9,47,000/-.
63. The Petitioner No.1 to 4 Petitioners are entitled for
compensation of Rs.1,60,000/- (Rs.40,000/- each) only and the
rest of the award amount is to be given to 5th Petitioner.
64. As per the decision of our Hon'ble High Court of
Karnataka, reported in ILR 2009 Kar 385, in case of Nazeera
Banu, Petitioners in MVC No.6897/2010, 6898/2010 and
8547/2010 are entitled for interest at the rate of 8% p.a. from the
date of petition till its realisation.
65. In the case on hand, the vehicle of the Respondent
No.1 is duly insured with the Respondent No.2. Accordingly the
Respondent No.1 is liable to pay 75% of the compensation
42 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
which shall be indemnified by the Respondent No.2.
Accordingly, these Issues are answered in affirmative.
66. Issue No.3 in MVC No.6897, 6898 and 8547/2010
and Issue No.4 in MVC No.6894, 8548/2010 and 6206/2010:
On the basis of discussions made on above Issues, I am obliged
to allow the petition in part and proceed to pass the following:
ORDER
Claim petition of Petitioner's in MVC 6894, 6897, 6898, 8547, 8548 and 6206/2010 is partly allowed with cost.
Petitioners in MVC No.6894/2010 are entitled for compensation of Rs.85,63,200/- (Rupees Eighty Five Lakhs Sixty Three Thousand Two Hundred Only) with interest at the rate at the rate of 6% p.a. from the date of petition till realization of same from Respondents.
Petitioner in MVC No.6897/2010 is entitled for global compensation of Rs.60,000/- (Rupees Sixty Thousand Only) with interest at the rate at the rate of 8% p.a. from the date of petition till realization of same from Respondents.
43 MVC No.6894,6897,6898,8547,
8548 and 6206/2010 Petitioner in MVC No.6898/2010 is entitled for compensation of Rs.4,00,894/- (Rupees Four Lakhs Eight Hundred and Ninety Four Only) with interest at the rate at the rate of 8% p.a. from the date of petition till realization of same from Respondents.
Petitioner in MVC No.8547/2010 is entitled for compensation of Rs.1,97,570/- (Rupees One Lakh Ninety Seven Thousand Five Hundred Seventy Only) with interest (excluding on the future medical expenses of Rs.20,000/-) at the rate at the rate of 8% p.a. from the date of petition till realization of same from Respondents.
Petitioners in MVC No.8548/2010 are entitled for compensation of Rs.8,67,000/- (Rupees Eight Lakhs Sixty Seven Thousand Only) with interest at the rate at the rate of 6% p.a. from the date of petition till realization of same from Respondents.
Petitioners in MVC No.6206/2010 are entitled for compensation of Rs.9,47,000/- (Rupees Nine Lakhs Forty Seven Thousand Only) with interest at 44 MVC No.6894,6897,6898,8547, 8548 and 6206/2010 the rate at the rate of 6% p.a. from the date of petition till realization of same from Respondents.
2nd Respondent, who is vicariously liable to indemnify the risk of 1st Respondent, has to deposit the compensation amount with interest, within a month from today.
Out of the compensation, Petitioner's in MVC No.6894/2010 shall be apportioned in the ratio of 60:30:10. After the compensation being deposited, 60% to be released in favour of Petitioners No.1 and 3 and remaining 40% to be kept in fixed deposit in any nationalized or scheduled bank, in their respective names, for a period of three years. Entire compensation of 2nd Petitioner to be kept in FD in any nationalized or scheduled bank in the name of Petitioner No.2, till she attains majority. Accrued interest on the share of minor Petitioner No.2 to be given to 1st petitioner.
Entire compensation of Petitioner in MVC No.6897/2010 to be kept in FD in any nationalized or scheduled bank in the name of Petitioner, till she 45 MVC No.6894,6897,6898,8547, 8548 and 6206/2010 attains majority. Accrued interest on the share of minor Petitioner No.2 to be given to 1st petitioner.
Out of the compensation to the Petitioners in MVC No.6898/2010 and 8547/2010, has been directed to be released 60% and balance 40% shall be kept in FD for a period of three years, in any nationalized or scheduled bank.
Out of compensation to the Petitioners in MVC No.8548/2010, entire compensation pertaining to each Petitioners has been directed to be released 60% and balance 40% shall be kept in FD for a period of three years, in any nationalized or scheduled bank.
The 2nd and 3rd Petitioners are entitled for compensation of Rs.80,000/- (Rs.40,000/- each) only and the rest of the award amount is to be given to 1st Petitioner.
Out of compensation to the Petitioners in MVC No.6206/2010, entire compensation pertaining to each Petitioners has been directed to be released 60% and balance 40% shall be kept in FD for a period of three years, in any nationalized or scheduled bank. 46 MVC No.6894,6897,6898,8547,
8548 and 6206/2010 The Petitioners No.1 to 4 are entitled for compensation of Rs.1,60,000/- (Rs.40,000/- each) only and the rest of the award amount is to be given to 5th Petitioner.
Fee of counsel for petitioner is fixed at Rs.1,000/- in all the cases.
Original judgment shall be kept in MVC 6894/2010 and copy of the same in all the cases.
Draw award accordingly in all the claims. (Dictated to the stenographer, transcript thereof is corrected and then pronounced by me in the Open Court on this the 31st December, 2015) (K. RAJESH KARNAM) VIII ADDL. SMALL CAUSES JUDGE MEMBER, MACT ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONERS IN ALL THE CASES:
PW-1 : Smt. Shariff Ayeesha Noorulla PW-2 : Sri. M. Atif Javeed PW-3 : Sri. M.R. Javeed Iqbal PW-4 : Dr.Syed Saleemuddin PW-5 : Dr.Surendranath Shetty PW-6 : Dr.P.V.Manohar 47 MVC No.6894,6897,6898,8547, 8548 and 6206/2010 PW-7 : Sri. Nehal Khadeer PW-8 : Sri. Afshad Pasha PW-9 : Sri. Zahid Ali Khan LIST OF WITNESSES EXAMINED ON BEHALF OF THE RESPONDENTS IN ALL THE CASES:
RW-1 : Sri. Sandeep Sri. Krishna Raj (evidence is rejected) RW-2 : Sri. Raj Kiran RW-3 : Sri. K. Raghu LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONERS IN ALL THE CASES:
Ex.P.1 : Copy of FIR with Complaint Ex.P.2 : Copy of Mahazar Ex.P.3 : Copy of Inquest mahazer Ex.P.4 : Copy of P.M.Report Ex.P.5 : Copy of IMV report Ex.P.6 : Copy of Charge sheet Ex.P.7 : Pay slip for the month of March & April Ex.P.8 : Copy of Pass port Ex.P.9 : Copy of passport of minor Petitioner by name Sadiya Fathima Ex.P.10 : Copy of Wound certificate Ex.P.11 : Discharge Summary Ex.P.12 : Copy of Certificate of Engineer Ex.P.13 : 9 medical bills Ex.P.14 ; 9 Photographs with respective CD Ex.P.15 : Copy of Wound Certificate Ex.P.16 : Discharge Summary Ex.P.17 : 3 photographs Ex.P.18 : 10 medical bills Ex.P.19 : Copy of Wound Certificate Ex.P.20 : 2 Discharge Summaries Ex.P.21 : Copy of Driving Licence Ex.P.22 : Copy of Appointment Letter Ex.P.23 : Copy of Degree certificate Ex.P.24 : 30 Medical Bills Ex.P.25 : Copy of Inquest Mahazar Ex.P.26 : Copy of P.M. Report 48 MVC No.6894,6897,6898,8547, 8548 and 6206/2010 Ex.P.27 : Copy of Election ID Card Ex.P.28(a) : 2 Case sheet & Ex.P28(b) Ex.P.29 : Scan report Ex.P.30 : 2 x-ray films and 2 scan films Ex.P.31(a) : 2 Case sheets & Ex.P.31(b) Ex.P.32 : Scan report Ex.P.33 : 22 x-ray films and 10 CT scan films Ex.P.34(a) : 2 Case sheets & Ex.P.34(b) Ex.P.35 : Scan report Ex.P.36 : 4 x-rays films and 2 CT scan films Ex.P.37 : 2 case sheet Ex.P.38 : 2 x-ray with one report Ex.P.39 : Clinical Notes Ex.P.40 : 5 X-rays Ex.P.41 : Authorization Letter Ex.P.42 : Employment Particulars of Asif Javeed Ex.P.43 : Pay Slip for the month of May 2012 Ex.P.44 : Copy of Judgment of C.C.No.351/2010 Ex.P.45 : Bank Account Statement Ex.P.46 : Reply given by NHAI dated 11.02.2015 & 09.03.2015 Ex.P.46(a) : Postal Cover Ex.P.47 : Letter written by LANCO dated 10.10.2013 Ex.P.47(a) : Bank Account of Statement LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONERS IN MVC NO.6206/2010:
Ex.P.1 to Ex.P.8 have marked separately before clubbing in MVC No.6206/2010, which is transferred from SCCH No.11.
Ex.P.1 : Copy of FIR
Ex.P.2 : Copy of Complaint
Ex.P.3 : Copy of Statement
Ex.P.4 : Copy of Inquest Mahazar
Ex.P.5 : Copy of P.M.Report
49 MVC No.6894,6897,6898,8547,
8548 and 6206/2010
Ex.P.6 : Copy of IMV Report
Ex.P.7 : Copy of Complaint to PSI, Siddapur Ex.P.8 : Copy of Form No.142 LIST OF DOCUMENTS MARKED ON BEHALF OF THE RESPONDENTS IN ALL THE CASES:
Ex.R.1 : Letter of Authorization Ex.R.2 : Sketch along with Mahazar Ex.R.3 : Policy copy with terms & conditions Ex.R.4 : Photographs (K. RAJESH KARNAM) VIII ADDL. SMALL CAUSES JUDGE MEMBER, MACT