Bangalore District Court
In Mvc 1. Smt. Gayathri M vs In 1. Venugopal on 4 February, 2016
Before the Motor Accident Claims Tribunal at Bangalore
(SCCH-8)
Present: Shri P.J. Somashekar B.A., LL.B.,
XII Additional Small Causes Judge
and Member, M.A.C.T., Bangalore.
Dated this the 4th day of February 2016
M.V.C. Nos.4252/2014 and 4399/2014
Petitioners in MVC 1. Smt. Gayathri M.,
No.4252/2014 Wife of Late Ashok K.,
Aged about 35 years,
2. Kum. Punya A.,
Daughter of Ashok K.,
Aged about 8 years,
Minor represented by her
natural guardian mother
Smt. Gayathri M.,
3. Smt. Rukmini Krishna Nairy,
Wife of S.Krishna Nairy,
Aged about 69 years,
All are residing at C-6 Anjanadri
Building,
Netaji Circle,
Mathikere,
Bengaluru-560 054.
(Shri M.Rudraiah, Advocate)
Petitioner in MVC Shri K.Venkatesh,
No.4399/2014 Son of Krishna Murthy,
Aged about 37 years,
No.601,LIG 707,
4th Phase,
Yelahanka New Town,
SCCH-8 MVC No.4252/2014 and 4399/2014
Bengaluru-560 064.
(Shri M.Rudraiah, Advocate)
V/s.
Respondents in 1. Venugopal,
both the cases Son of Shri Krishnachar,
Major,
Residing at Vinayakanagar,
Bashettihalli,
Doddaballapura Taluk,
(Owner of the vehicle)
(Shri S.A.Khadri, Advocate)
2. Shri Nagaraja,
Son of Ramegowda,
Aged about 42 years,
Residing at Alipura Village and
post, Gowribidanur District.
(Driver of the Canter vehicle
bearing No.KA-02-C-9608)
(Shri S.A.Khadri, Advocate)
3. Shriram General Insurance
Company Limited,
No.E-8, EPIP Sitapur Industrial
Area, Jaipur, Rajasthan-302
022.
(Insurer of the vehicle) (Policy
No.10003/31/14/544233 period
of insurance from 28.11.2013 to
27.11.2014)
(Shri B.T.Rudra Murthy,
Avocate)
SCCH-8 MVC No.4252/2014 and 4399/2014
COMMON JUDGMENT
These claim petitions filed by the legal heirs and
financial dependents of the deceased K. Ashok in MVC
No. 4252/2013 and the injured in MVC No.4399/2014,
against the respondents under Section 166 of Motor
Vehicles Act, 1989, for seeking compensation of
Rs.1,02,55,000/- and Rs.30,30,000/- respectively for the
death of K.Ashok and the injuries sustained by
K.Venkatesh in a road traffic accident.
2. The brief facts of the claim petitions in MVC
Nos.4252/2014 and 4399/2014 are as under:
The petitioners being said to be the legal heirs and
financial dependents of the deceased Ashok K. and
injured in MVC No.4399/2014 in their claim petitions
were alleged that on 3.7.2014 at about 1.40 p.m. the
deceased Ashok and the petitioner in MVC 4399/2014
working as Assistant Manager-Engineering
(Mechanical)/Associate Trainer (Asia) Filters Learning
centre and Assistant Manager at ITC ESSENTRA
SCCH-8 MVC No.4252/2014 and 4399/2014
respectively, after taking food, they were coming to ITC
company on the left side of the road with another
employee, the driver of the canter bearing registration
No.KA-02-C-9608 has drove the same in a rash and
negligent manner came from opposite direction and
dashed against the Ashok and Venkatesh and dashed
against the compound of Avalakondaraya Temple and
they were sustained grievous injuries, so, immediately
Ashok was shifted to Columbia Clinic, Doddaballapura,
wherein he took the treatment, but in spite of best
treatment Ashok was succumbed due to the accidental
injuries. So, post mortem was conducted and dead body
was handing over to them, they were shifted the dead
body to their house and conducted the funeral and
obsequies by spending huge amount. The petitioner in
MVC 4252/2014 has been shifted to Columbia hospital,
Doddaballapura, wherein he took the first aid treatment,
due to the fracture of both bones of right leg again he was
shifted to Hosmat hospital, wherein he took the
SCCH-8 MVC No.4252/2014 and 4399/2014
treatment as inpatient and underwent surgery by
spending huge amount.
3. Prior to the accident the deceased Ashok K. was
working as Technical Specialist (senior)Mechanical at ITC
ESSENTRA Limited, Survery No.139/140, Veerapura
Village, Doddaballapura taluk by drawing salary of
Rs.39,924/- per month at the time of his death. The
deceased started his career as a trainee in production of
ITC ESSENTRA in the year 1998. Subsequently he was
confirmed in the services as mechanic co-ordinator and
was a hard worker, honest, punctual and intelligent
employee of the company. The management was very
much impressed for his services to the organization and
his service was always been a star performer and had
secured two up-gradations, first as a team leader and
then as a Technical Specialist and he was visited and
supported filter making operations at ESSENTRA at
Dubai and ESENTRA, U.K. based upon his performance
and track record as a technical specialist and production
SCCH-8 MVC No.4252/2014 and 4399/2014
management abilities and the company was considering
him for Shift Manager in the near future and he would
have secured atleast three more upgradations/promotion
in remaining part of his service and it can be safely said
that his salary would have more than Rs.1,50,000/- per
month at the time of his retirement and they have spent
Rs.30,000/- towards obsequies and Rs.25,000/- has
spent towards ambulance and other incidental expenses.
The petitioner No.1 is the wife, the petitioner No.2 is the
daughter and the petitioner No.3 is the mother of the
deceased. Due to the untimely death they were put into
deep mental shock and agony and they lost the love and
affection and earning member of the family.
4. The petitioner in MVC 4399/2014 prior to the
accident he was hale and healthy working in ITC
ESSENTRA Limited, Doddaballapur as Assistant
Manager-Engineering (Mechanical)/Associate Trainer
(Asia)-Filers learning Centre and he started working in
ITC ESSENTRA since 6.1.1977 as a Trainee. In view of
SCCH-8 MVC No.4252/2014 and 4399/2014
his hard work and industriousness, he developed as a
expert resource and had secured four up-gradations first
as Technical Specialist and then as an Executive,
Sr.Executive and Assistant Manager and he underwent
several internal and external training programmes to
upgrade his expertise and managerial acumen. In view of
the expertise the company had asked him to visit several
of its global locations, where he supported filter making
operations. In recognition of his experience and his
proficiency in filter machine maintenance and
production, he was given additional responsibility of an
Associate Trainer for Asia Region in January 2014. So,
the petitioner prior to the accident he was drawing a
salary of Rs.50,657/- per month. After the accident he
was unable to move around and was confined to bed for
three weeks and needed an attendant to help him out
with his daily needs and he was unable to walk and he
was advised to walk with the help of walker and he
cannot do the work as before and he has also visited the
SCCH-8 MVC No.4252/2014 and 4399/2014
company's office in Dubai for training this year and was
required to attend other offices. In view of the accidental
injuries he could not work as earlier. The accident in
question was taken place on the rash and negligent
driving of the canter driver. Thereby, Doddaballapura
Rural Police have registered the case against the
offending vehicle driver in their police station crime
No.205/2014 for the offences punishable u/s 279, 337
and 304(A) of IPC and Section 187 of M.V. Act. The
respondent Nos.1 to 3 being the owner, driver and
insurer are jointly and severally liable to pay the
compensation and prays for allow the claim petitions.
5. In response of the notice, the respondents were
appeared through their respective counsel and filed their
independent written statement.
6.The respondent Nos.1 & 2 being the owner and
the driver of the offending vehicle in their written
statement have alleged that the claim petitions filed by
the petitioners are not maintainable in law or on facts
SCCH-8 MVC No.4252/2014 and 4399/2014
and they have denied the age, avocation and income of
the deceased and the injured in MVC 4399/2014 and
they have also denied that the deceased and the injured
by name Venkatesh were proceeding along with another
employees of the ITC ESSENTRA Limited, the driver of
the offending vehicle has drove the same in a rash and
negligent manner dashed against them, as a result, they
were fell down and sustained grievous injuries and they
were shifted to Columbia hospital, wherein they took the
treatment and inspite of best treatment Ashok K. was
succumbed due to the accidental injuries and Venkatesh
has been shifted to Hosmat hospital, wherein he took the
treatment as inpatient by spending huge amount and he
has alleged that rough sketch produced by the petitioner
reflects that the driver of the offending vehicle was taking
reverse and the deceased and the petitioner have their
own negligence came to the back wheel of the vehicle and
sustained injuries, due to the said injuries Ashok was
succumbed and Venkatesh was sustained injuries on
SCCH-8 MVC No.4252/2014 and 4399/2014
their own negligence and they have denied that the
deceased and the injured having future prospects,
because of the injuries and death of Ashok were lost
future prospects and they have denied that the salary
drawn by the deceased and the Venkatesh as alleged in
the claim petition and they have alleged that they have
insured the offending vehicle with the third respondent
and the policy was valid from 26.11.2013 to 27.11.2014
and the accident was taken place on 3.7.2014. So, as on
the date of alleged accident the policy was in existence
and they are not liable to pay the compensation and as
on the date of alleged accident respondent No.2 was
holding valid and effective driving license and the
accident was not occurred on his rash and negligent
driving and prays for reject the claim petitions.
7. The respondent No.3 being the insurer of the
offending vehicle in his written statement has alleged
that the claim petitions filed by the petitioners are not
maintainable in law or on facts but he has admitted
SCCH-8 MVC No.4252/2014 and 4399/2014
about the issuance of the policy infavour of the
respondent No.1 in respect of offending vehicle and its
liability is subject to terms and conditions of the policy
and as on the date of the alleged accident, the offending
vehicle driver was not holding valid and effective driving
licence and the first respondent has entrusted the vehicle
to the person who was not holding valid and effective
driving licence. So, the first respondent has contravened
the terms and conditions of the policy. So, he is not
liable to pay any compensation to the petitioners and
either the owner of the offending vehicle nor the
jurisdictional police have not complied the mandatory
provisions under Section 134(C) and 158(6) of the M.V.
Act in furnishing better particulars and he has denied
the deceased Ashok and injured along with another
employees of ITC ESSENTRA Limited were proceeding by
the side of the road, the driver of the offending vehicle
has drove the same in a rash and negligent manner and
dashed against them, though they were shifted to
SCCH-8 MVC No.4252/2014 and 4399/2014
Columbia hospital, Ashok was succumbed due to the
accidental injuries and injured Venkatesh has been
shifted to Hosmat hospital, wherein he took the
treatment as inpatient by spending huge amount and he
has alleged that the accident was not occurred on
account of rash and negligent driving of the offending
vehicle driver. The accident was occurred due to the
negligence of the deceased Ashok and injured by name
Venkatesh since they were walking on the road without
using the footpath, no negligence on the part of the
canter driver and he has denied the age, avocation and
income of the deceased and the injured as well as their
income as alleged in the claim petitions and prays for
reject the claim petitions.
8. On the basis of the pleadings of the parties the
following issues are framed:
MVC No. 4252/2014
1. Whether the petitioners prove that the
deceased Ashok K died in a road traffic
accident on 3.7.2014 at about 1.40 p.m.
SCCH-8 MVC No.4252/2014 and 4399/2014
near Bashettihalli area, Doddaballaprua
Taluk, Bengaluru District, due to the rash
and negligent driving of the driver of the
canter bearing registration No.KA-02-C-
9608?
2.Whether the petitioners are entitled for
any compensation? If so to what extent and
from whom?
3.What Order or Award?
MVC No. 4399/2014
1. Whether the petitioner proves that he has
sustained grievous injuries as mentioned in
column No.11, in a road traffic accident on
3.7.2014 at about 1.40 p.m. near
Bashettihalli Industrial Area,
Doddaballapura Taluk, Bengaluru District
due to the rash and negligent driving of the
driver of the canter bearing registration
No.KA-02-C-9608?
2. Whether petitioner is entitled for any
compensation? If so to what extent and
from whom?
3. What Order or Award?
SCCH-8 MVC No.4252/2014 and 4399/2014
9. The learned counsel for the petitioners has filed
memo on 22.7.2015 and prays for club the MVC
4399/2014 in MVC 4252/2014 on the ground that these
claim petitions are arising out of the same accident.
Accordingly the said memo was came to be accepted and
MVC 4399/2014 is clubbed with MVC 4252/2014 for
recording of common evidence and for disposal of the
cases.
10. The petitioners in order to prove their claim
petitions, the petitioner No.1 in MVC 4252/2014 has
examined herself as PW1 and got marked the documents
as Ex.P1 to Ex.P16 and the petitioner in MVC 4399/2014
has examined himself as PW2 and got marked the
documents as Ex.P17 to Ex.P26, Ex.P34 and Ex.P35. The
petitioners have examined three more witnesses on their
behalf as PW3 to PW5 and got marked the documents as
Ex.P27, Ex.P28 to Ex.P30, Ex.P31 to Ex.P33.
SCCH-8 MVC No.4252/2014 and 4399/2014
11. The respondent No.1 being the owner has
examined himself as RW1 and the driver has been
examined as RW2. They have not marked any documents
on their behalf and the respondent No.3 has not
examined any witness nor marked any document.
12. Heard arguments on both side.
13. My findings to the above issues are as under:
Case No. Issue No.1 Issue No.2 Issue
No.3
MVC
4252/2014
MVC In the Partly in the As per the
4399/2014 affirmative affirmative final order
REASONS
14. Issue No.1 in both the claim petitions.
The petitioners in MVC 4252/2014 and MVC
4399/2014 being said to be the legal heirs and financial
dependents of the deceased Ashok K. and the injured
were approached the court on the ground that on
3.7.2014 at about 1.40 p.m. they were working as a
technical specialist and assistant Manager at ITC
SCCH-8 MVC No.4252/2014 and 4399/2014
ESSENTRA Limited after taking food were coming to ITC
company on the left side of the road, the offending vehicle
driver has drove the same in a rash and negligent
manner and dashed against the canter, as a result, they
were sustained grievous injuries, though they were
shifted to Columbia hospital at Doddaballapur, but
inspite of best treatment Ashok was died in the hospital
and the injured has been shifted to Hosmat hospital,
wherein he took the treatment as inpatient by spending
huge amount. Thereby, the petitioners in MVC
No.4252/2014 being the legal heirs and financial
dependents of the deceased and the petitioner in MVC
No.4399/2014 being injured have filed the instant claim
petitions against the respondents.
15. The PW1 being said to be the wife of the
deceased Ashok has filed her affidavit as her chief
examination as PW1 in which she has stated that on
3.7.2014 her husband was met with an accident at about
1.40 p.m. when her husband after taking food was
SCCH-8 MVC No.4252/2014 and 4399/2014
coming to ITC company on the left side of the road with
other two employees, the driver of the canter bearing
registration No.KA-02-C-9608 has drove the same in a
rash and negligent manner came from opposite direction
and dashed against her husband. Thus, he has
sustained injuries, though he was shifted to Columbia
hospital, Doddaballapur, but inspite of best treatment
her husband was succumbed due to the accidental
injuries. The accident in question was taken place on the
rash and negligent driving of the canter driver. Thereby,
Doddaballapura Rural Police have registered the case
against the offending vehicle driver in their police station
crime No.205/2014 for the offences punishable u/s 279,
337 and 304(A) of IPC and section 187 of M.V. Act. The
PW1 in her cross examination has admitted that she has
not witness to the accident, but she came to know that
the accident was occurred on account of rash and
negligent driving of the offending vehicle driver and she
SCCH-8 MVC No.4252/2014 and 4399/2014
has denied that the accident was occurred on account of
negligence of her husband.
16. The PW2 being said to be the injured in his
evidence has stated that on 3.7.2014 at about 1.40 p.m.
after taking food was coming to ITC company along with
Ashok on the left side of the road, the driver of the canter
bearing registration No.KA-02-C-9608 has drove the
same without observing the traffic rules and regulations
dashed against them, as a result, they were fell down and
sustained grievous injuries. So, immediately they were
shifted to Columbia hospital, due to the accidental
injuries sustained by the Ashok was succumbed in the
hospital and he took the treatment at Hosmat hospital,
wherein he took the treatment as inpatient by spending
huge amount. So, the accident in question was taken
place on the rash and negligent driving of the offending
vehicle driver. The PW2 in his cross-examination has
admitted that as on the date of alleged accident himself
and the Ashok were walking on the left side of the road
SCCH-8 MVC No.4252/2014 and 4399/2014
and prior to the accident he was not seen the lorry and
he has denied that the accident was occurred on their
negligence since they were proceeding by talking each
other without seeing the movement of the vehicles and
the accident was not occurred on account of rash and
negligent driving of the driver of the offending vehicle.
17.The PW3 being said to be the eye witness, in his
evidence has stated that on 3.7.2014 at about 1.40 p.m.
after taking food he was walking near ITC Company,
Basettihalli Industrial Area on the left side of the road
with other employees i.e., Ashok K. and K.Venkatesh, the
driver of the canter bearing registration No.KA-02-C-9608
has drove the same in a rash and negligent manner
without observing the traffic rules and regulations
dashed against him and other two employees, due to the
said impact the two employees were sustained grievous
injuries. So, immediately they were shifted to Columbia
Hospital, Doddaballapur and Ashok was succumbed due
to the accidental injuries and another injured by name
SCCH-8 MVC No.4252/2014 and 4399/2014
Venkatesh has been shifted to Hosmat hospital. The
accident was occurred on account of rash and negligent
driving of the offending vehicle driver. The PW3 in his
cross-examination has admitted that he has seen the
lorry with a distance of 10 feet before the accident and he
has denied that the accident was not occurred on
account of rash and negligent driving of the offending
vehicle driver. But he has admitted that he was escaped
from the accident, but the accident was occurred against
the Ashok and Venkatesh and he has denied that he was
not the witness to the accident, in order to help the
petitioners has deposing the false facts.
18. The petitioners in support of their oral evidence
have produced the documents marked as Ex.P1 to
Ex.P35. Ex.P2 is the information filed by one S.Ravish, in
which has stated that on 3.7.2014 at about 1.40 p.m. he
was supplied the meals to the ITC company, when he
was standing infront of temple, three employees of the
ITC company were proceeding by the side of the road, one
SCCH-8 MVC No.4252/2014 and 4399/2014
canter vehicle was came from opposite direction with a
rash and negligent manner without observing the traffic
rules and regulations dashed against the employees and
again dashed against the compound of the Avalakoppa
Temple. So, he rushed to the spot and found that the
employees were sustained injuries. So, immediately they
were shifted the injured to the Columbia hospital,
Doddaballapur and found that the canter vehicle number
KA-02-C-9608 which caused the accident, the driver has
stopped the vehicle and ran away from the spot and came
to know that the injured by name Ashok, Venkatesh and
Shekar, but inspite of treatment at Columbia hospital
Ashok was succumbed due to the accidental injuries.
So, Venkatesh has been shifted to Hosmat hospital. The
accident was occurred on account of rash and negligent
driving of the canter driver. So based on the information
Doddaballapur Rural Police have registered the case
against the offending vehicle driver in their police station
crime No.42/2013 for the offences punishable u/s 279,
SCCH-8 MVC No.4252/2014 and 4399/2014
337 and 304(A) of IPC and section 187 of M.V. Act. The
learned counsel for the respondent has suggested the
PW1, who is said to be the wife of the deceased Ashok
that the accident was occurred on account of her
husband negligence for which she has denied the same
and he has also suggested to the PW2, who is said to be
the injured that the accident was occurred on their
negligence, for which he has denied the same. If at all,
the accident was taken place on the negligence of the
deceased and the injured nothing is prevented to the
respondent to examine the witnesses who are cited in the
charge sheet to show that the accident was occurred on
the negligence of the deceased and the injured, if that is
so, the matter would have different. The respondent in
his written statement has alleged that the driver of the
offending vehicle while taking the canter in a reverse
direction, the deceased and the injured without observing
the traffic rules and regulations dashed against the
canter, so on their negligence the accident was occurred.
SCCH-8 MVC No.4252/2014 and 4399/2014
Except taking the defence the respondents have not
placed any materials on record to substantiate their
defence. Though RW2 being the driver of the offending
vehicle in his evidence has stated that as on the date of
alleged accident he was took the vehicle in a reverse by
putting horn, the deceased and the injured were came to
back side and dashed to the canter, as a result they
sustained injuries. But in his cross-examination has
admitted that before the accident he was not seen either
deceased nor the injured. But whereas informant in
Ex.P1 nowhere stated that the driver of the offending
vehicle while taking the vehicle in a reverse the accident
was taken place, if that is so, the matter would have
different. Except taking the defence nothing is placed on
record to show that the accident was occurred while the
offending vehicle was taking in a reverse direction and
moreover the respondents have not challenged the FIR
and the charge sheet filed against the offending vehicle
driver on the ground that informant has filed the false
SCCH-8 MVC No.4252/2014 and 4399/2014
complaint against the offending vehicle driver. So, Ex.P1
& Ex.P2 are remained unchallenged. Ex.P3 and Ex.P4
are the panchanama and sketch drawn by the I.O. clearly
reflects that the accident was occurred on the extreme
western side of the road, though there is a sufficient
space to avoid the accident, but the reasons best known
to the offending vehicle driver did not taken minimum
care to avoid the accident. So on his own negligence the
accident was occurred and Ashok K had lost his breath
due to the accidental injuries and Venkatesh has
sustained injuries. So, Ex.P3 & Ex.P4 are corroborate
the evidence of PW1 & PW2. Ex.P5 is the post mortem
report, Ex.P7 is the death certificate, Ex.P17 is the
discharge summary, Ex.P21 to Ex.P34 are reflects that
the deceased and the injured soon after the accident got
admitted to the hospital and took the treatment at
Columbia hospital, Doddaballapur, but inspite of best
treatment Ashok was succumbed due to the accidental
injuries and the injured Venkatesh has been shifted to
SCCH-8 MVC No.4252/2014 and 4399/2014
Hosmat hospital and took the treatment as inpatient and
underwent surgery. Ex.P6 is the charge sheet filed by
the I.O., clearly reflects that the I.O., has conducted the
investigation and found that the accident in question was
taken place on the rash and negligent driving of the
offending vehicle driver, that is the reason why, he has
charge sheeted against the offending vehicle driver. So,
the documents marked as Ex.P1 to Ex.P35 are coupled
with the oral evidence of the PW1 and PW2. Though, the
respondent Nos. 1 & 2 have examined themselves as
RW1 & RW2, but their evidence will not help, to prove
their defence. On the other hand, the petitioners have
proved their case through oral and documentary evidence
that the accident in question was taken place on the rash
and negligent driving of the offending vehicle driver.
Hence, the issue No.1 in both the claim petitions is
answered as affirmative.
SCCH-8 MVC No.4252/2014 and 4399/2014
19. Issue No.2 in MVC 4252/2014:
The PW1 being said to be the wife of the deceased
Ashok K. in her evidence has stated that on 3.7.2014 her
husband has met with an accident when he was
proceeding by walk on the left side of the footpath, the
offending vehicle driver has caused the accident. Though
her husband has been shifted to Columbia hospital,
Doddabalapur but inspite of best treatment her husband
was succumbed to the accidental injuries.
20.Prior to the accident her husband was hale and
healthy, aged about 37 years and working as a Technical
Specialist (Senior) Mechanical at ITC ESSENTRA situated
at survey No.139/140, Veerapura Village, Kasaba Hobli,
Doddaballapura Taluk by getting monthly income of
Rs.39,924/- and he was contributing entire income to
the family maintenance, due to the sudden death of her
husband, they were put into deep mental shock and
agony and her husband started his career as a trainee in
production department of ITC ESSENTRA in the year
SCCH-8 MVC No.4252/2014 and 4399/2014
1998, subsequently he was confirmed in the services as
mechanic co-ordinator and her husband having bright
future and he would have remained in the service, his
salary would have been more than Rs.1,50,000/- per
month at the time of his retirement, since he had about
22 years of service left with him and she has spent
Rs.30,000/- towards funeral and obsequies and
Rs.25,000/- towards ambulance and other incidental
charges. Herself and the second petitioner are none other
than the wife and daughter of the deceased and the third
petitioner is none other than the mother of the deceased
and they are the financial dependants of the deceased.
PW1 in her cross-examination has denied that her
mother-in-law was not the dependant of the deceased
and herself and her daughter were not depending on the
income of her husband and her husband was income tax
assessee and she has denied that she has not produced
any documents to show that her husband was income
SCCH-8 MVC No.4252/2014 and 4399/2014
tax assessee and she has no impediment for production
of income tax returns for 3-4 years.
21. The PW4 who is said to be the Plant Manager on
ITC ESSENTRA Limited in his evidence has stated that
on 3.7.2014 at about 1.40 p.m. the deceased Ashok and
along with two other employees one K.Venkatesh and
Shekar met with an accident due to the rash and
negligent driving of the driver of the canter bearing
No.KA-02-C-9608 and the deceased Ashok had started
his career as a trainee in production department of ITC
ESSENTRA in the year 1998, subsequently he was
confirmed in the service, he was having bright future and
he would have drawing salary of Rs.1,50,000/- at the
time of his retirement since he had about 22 years of
service left with him. The PW4 in his cross-examination
has denied that he has created the documents and
placed it before the court and he is not the competent
person to give evidence on Ex.P18 and Ex.P19 and he
has denied that he has created Ex.P31 & Ex.P32.
SCCH-8 MVC No.4252/2014 and 4399/2014
22. The PW1 being said to be the wife of the
deceased Ashok K. in her evidence she has stated that
her husband was hale and healthy working as a
Technical Specialist (Senior) Mechanical at ITC
ESSENTRA Limited by drawing salary of Rs.39,924/-.
The PW4 being the Plant Manager at ITC ESSENTRA
Limited in his evidence has stated that prior to the
accident the deceased was working as a mechanic co-
ordinator and he was having bright future and he would
have drawn salary of Rs.1,50,000/- at the time of his
retirement as he was having 22 years of service. So, the
evidence of PW4 corroborate the evidence of PW2 to show
that the prior to the accident the deceased was working
as a Mechanic co-ordinator at ITC ESSENTRA Limited.
Ex.P9 is the salary certificate issued by ITC ESSENTRA
Limited in which it is clear that the deceased prior to the
accident was working as a technical Specialist by getting
monthly salary of Rs.39,924/- and who is the permanent
employee of the said ITC ESSENTRA Limited. So, one
SCCH-8 MVC No.4252/2014 and 4399/2014
thing is clear from the oral and documentary evidence on
record that prior to the accident the deceased was
working as a Mechanica co-ordinator at ITC ESSENTRA
Limited and he was the permanent employee by getting
monthly salary of Rs.39,924/-. The petitioners in their
claim petitions were shown the income of the deceased as
39,924/- per month. So, the evidence of PW4 and Ex.P9
corroborate the claim of the petitioners as shown in the
claim petition. So, the deceased monthly salary is taken
into consideration as Rs.39,924/- per month prior to the
accident.
23. The learned counsel for the petitioners in his
arguments has submitted that the deceased prior to the
accident was working as a Machanic Co-ordinator by
getting monthly income of Rs.39,924/- and he was
permanent employee. So, he comes under the age group
of below 40 years as he was born on 17.9.1977 and at
the time of accident he was aged about 37 years. So,
50% of the future prospects is to be taken into
SCCH-8 MVC No.4252/2014 and 4399/2014
consideration while calculating of the monthly income of
the deceased and drawn the court attention on the
judgement of the Hon'ble Supreme Court reported in
Civil Appeal No.3860/2013 in between Rajesh and
others Vs. Rajbir Singh and others.
24.On careful perusal of the above said decision in
the said decision, their lordship held that in case of self
employed or persons with fixed wages, in case, the
deceased victim was below 40 years, there must be an
addition of 50% to the actual income of the deceased
while computing future prospects.
25. In the instant case the deceased was permanent
employee by drawing monthly salary of Rs.39,924/- prior
to the accident and he comes below age group of 40
years.
26.Thus, this court drawn its attention on the
judgment of the Hon'ble Supreme Court reported in
(2015) 6 Supreme Court Cases 347 in between Munna
SCCH-8 MVC No.4252/2014 and 4399/2014
Lal Jain and another Vs. Vipin Kumar Sharma and
others, which reads like thus;
(A) Motor Vehicles Act, 1988 - Ss. 166 and
168 - Fatal accident - Compensation -
Determination of - Just compensation -
Future prospects - Self employed persons -
Addition to be made to income of -
Following three-Judge Bench decision in
Rajesh, (2013) 9 SCC 54, in case of self-
employed persons also, if deceased victim
is below 40 yrs, there must be addition of
50% to actual income of deceased while
computing future prospects - Deceased
being of 30 yrs, 50% is required to be
added.
27. On careful perusal of the above said decision, in
the said decision also, the deceased was aged about 30
years, was self employed working as Pandit and he was a
bachelor, his parents were filed the claim petition.
Tribunal awarded an amount of Rs.6,59,000/- from the
date of petition. So, they filed the appeal before the
Hon'ble High and the Hon'ble High court enhanced the
SCCH-8 MVC No.4252/2014 and 4399/2014
compensation by considering the income at the rate of
12,000/- per month by adding 30% towards future
prospects and deducted 50% towards personal and living
expenses by applying multiplier of 13 and the
compensation fixed at Rs.12,61,800/- with interest at the
rate of 7.5%. So, they filed the appeal before the Hon'ble
Supreme Court and the Hon'ble Supreme Court held that
future prospects is to be taken into consideration, if the
deceased is aged below 40 years, 50% is to be taken into
consideration.
28.In the said decision, their lord hip held that
where the deceased comes within age group of 40 years,
future prospects is to be taken into consideration as
50%. So, by virtue of the decision relied by the learned
counsel for the petitioner and by virtue of the said
decision it is clear that where the deceased comes within
age group of 40 years and his future prospects 50% is to
be taken into consideration to the actual monthly income
of the deceased while calculating future prospects as the
SCCH-8 MVC No.4252/2014 and 4399/2014
deceased was born on 17.9.1977 as per Ex.P15. So, he
was aged about 37 years as on the date of alleged
accident. So, if 50% is to be added to the actual salary of
the deceased of Rs.39,924/-+Rs.19,962/-, in total it
comes to Rs.59,886/-. Then the yearly income comes to
Rs.7,18,632/- (Rs.59,886X12).
29.The Ex.P5 and Ex.P14 are reflects that the
petitioner Nos.1 to 3 are none other than the wife,
daughter and mother of the deceased and they are
financial dependants of the deceased. So, by virtue of
decision reported in 2009 ACJ 1298 in between
Sarlaverma Vs. Delhi Transport Corporation where the
number of dependants 2 to 3, 1/3rd has to be deducted
as his personal and living expenses of the deceased. In
the instant case there are three dependants to the
deceased. So, 1/3rd has to be deducted towards his
personal and living expenses, so it comes to
Rs.4,79,088/-. Ex.P15 is reflects that the deceased was
born on 17.9.1977, as on the date of date of alleged
SCCH-8 MVC No.4252/2014 and 4399/2014
accident he was aged about 37 years. So as per
Sarlaverma Vs. Delhi Corporation Ltd in 2009 ACJ 1298
the multiplier 15 is applicable. So, Rs.4,79,088X15=
Rs.71,86,320/- towards loss of dependency. So the
petitioners are entitled for the said amount towards loss
of dependency.
30. The petitioner No.1 is none other than the wife
of the deceased. So, she lost her husband at the age of
35 years. So, Rs.1,00,000/- is awarded under the head
of loss of consortium. The petitioner No.2 being the minor
daughter has lost the love and affection and care taker at
the age of 8 years. So, by virtue of the decision of Hon'ble
Supreme Court reported in 2014 STPL (Web) 340
Rs.1,00,000/- is awarded under the head of loss of love
and affection and care taker of petitioner No.2.
Rs.10,000/- is awarded under the head of loss of estate
and Rs.40,000/- is awarded towards loss of love and
affection to the petitioner Nos.1 and 3. Rs.30,000/- is
SCCH-8 MVC No.4252/2014 and 4399/2014
awarded towards transportation of dead body and funeral
and obsequies.
31. Thus, the total award stands as follows:
1.Loss of dependency Rs.71,86,320-00
2.Loss of consortium Rs. 1,00,000-00
3.Loss of love and affection Rs. 1,40,000-00
and care taker
4.Loss of estate Rs. 10,000-00
5.Transportation of dead Rs. 30,000-00
body and funeral expenses
Total Rs.74,66,320-00
32. Issue No.2 in MVC 4399/2014:
The PW2 being the injured in his evidence has
clearly stated that on 3.7.2014 at about 1.40 p.m. after
taking food was coming to ITC company on the left side of
the road with other two employees, the driver of the
canter bearing registration No. KA-02-C-9608 has drove
the same in a rash and negligent manner without
observing the traffic rules and regulations dashed against
him, as a result, he was fell down and sustained
following injuries;
SCCH-8 MVC No.4252/2014 and 4399/2014
1) Fracture of both tibia and fibula of his right
leg.
33. So, immediately he was shifted to Columbia
Hospital, Bangalore, wherein he took the first aid
treatment, later on he was shifted to Hosmat hospital,
wherein he took the treatment as an inpatient and x-rays
were taken and found that he has sustained Type I open
both bones fracture of right leg mid and distal 1/3rd
junction. So, he was underwent open reduction with
IMIL nailing right tibia and discharged from the hospital
with an advise for follow-up treatment. Inspite of best
treatment he could not do the work as before.
34. Prior to the accident he was hale and healthy
working in ITC ESSENTRA Limited, Doddaballapura as
Assistant Manager Engineering (Mechanical)Associate
Trainer (Asia)--Filters learning Centre by getting monthly
income of Rs.50,657/- apart from other benefits, due to
the accidental injuries, he could not do the work as
before, as he took the complete bed rest as per the advice
of the doctors and he was unable to walk without the
SCCH-8 MVC No.4252/2014 and 4399/2014
assistance, unable to stand for long time. So, the doctor
advised not to bear weight on his right leg. So, his future
prospects has been affected and he is unable to meet his
responsibilities as an Associate Trainer for Asia Region.
The PW2 in his cross-examination has admitted that
injuries are heal up, but still there is processing for
uniting of fracture and he has admitted that after the
accident he has been continued in the company still he is
working in the same company. But he took six months
leave and he has admitted that during the leave period he
has drawn the salary and he has admitted that now he is
drawing same salary as earlier, at the time of accident he
was drawing salary of Rs.50,690/- now he is drawing
salary of Rs.55,000/- and he has not given any notice to
the company stating that he is unable to do the earlier
work but he has denied that the injuries are heal up and
he is not facing any difficulties due to the accidental
injuries and he can do the work as earlier and he has
admitted that he has reimbursed the amount towards his
SCCH-8 MVC No.4252/2014 and 4399/2014
treatment out of the medi claim policy as he has
reimbursed the amount of Rs.96,000/- out of the medi
claim policy and bills which was submitted for
reimbursement from medi claim policy has not been
produced before the court.
35.The PW4 being said to be the Plant Manager at
ITC ESSENTRA Company in his evidence has stated that
on 3.7.2014 at about 1.40 p.m. the petitioner was met
with a n accident and sustained injuries and got
admitted to the Columbia hospital, later on he was
shifted to Hosmat hospital and took the treatment as
inpatient and underwent surgery. The petitioner
underwent several internal and external training
programmes and he has having bright future. After the
accident he was on leave till 1.12.2014. The PW2 and
PW4 in his evidence they have stated that after the
accident the injured was on leave i.e., PW2 till 1.12.2014.
But whereas PW2 in his cross-examination has
categorically admitted that he took six months leave
SCCH-8 MVC No.4252/2014 and 4399/2014
during the leave period he was drawing salary, but he
lost leave. But the reasons best known to the petitioner
has not produced any documents to show that he has
lost the six months leave, however, he has admitted that
during the leave period he was drawn the salary. Even
PW4 has not produced any documents to show that the
petitioner has took six months leave, so he lost leave
which was in the account of the petitioner. If that is so,
the mater would have different. Though the PW2 and
PW4 have stated that he has resumed the duty on
1.12.2014, but on record nothing is placed to show that
he lost the leave for a period of six months.
36. The PW5 being the Orthopaedic Surgeon of
Hosmat hospital in his evidence has stated that the
petitioner has met with an accident said to have been
taken place on 3.7.2014 as he has sustained following
injuries;
Open fracture both bones of right leg
SCCH-8 MVC No.4252/2014 and 4399/2014
37. So, he was underwent interlocking nailing of
right tibia on 3.7.2014 and he was discharged on
5.7.2014 with an advise for follow-up treatment.
Recently on 4.8.2015 he has examined the petitioner for
assessment of disability and found that the petitioner has
sustained permanent physical impairment of right lower
limb 39.2% and whole body disability of 14%. PW5 in his
cross-examination has admitted that fracture is not
united, but it is under processing and he has stated that
only after union of fracture, is proper to say about the
disability and he has admitted that after union of
fracture there is a chances of reducing of disability and
he has denied that he has stated more disability in order
to help the petitioner.
38. The PW2 being the injured in his evidence has
stated that he has sustained fracture of both bones of
right leg and he took the treatment as inpatient and
inspite of best treatment still he is facing difficulties. The
PW5 being the Orthopaedic Surgeon and treated doctor
SCCH-8 MVC No.4252/2014 and 4399/2014
in his evidence has clearly stated that union of fracture is
under processing and after union of fracture there is a
chances of reducing of disability. So, the evidence of PW5
corroborate the evidence of the PW2. Ex.P22 is the
wound certificate in which it is clear that the petitioner
has sustained the following injuries;
Fracture of both bones of right leg
39. So, the above said injury is grievous in nature.
Ex.P17 is the discharge summary clearly reflects that the
petitioner soon after the accident has got admitted to the
Hosmat Hospital, wherein he took the treatment as an
inpatient from 3.7.2014 to 5.7.2014 as he has sustained
following injury;
Type I open both bone fracture mid and distal
1/3rd junction
40. So, he was underwent open reduction IM IL
nailing of right tibia and took the treatment as inpatient
for a period of three days. Ex.P21, Ex.P25 and Ex.P34
are reflects that the petitioner has took the treatment in
connection of the injuries sustained by him in a road
SCCH-8 MVC No.4252/2014 and 4399/2014
traffic accident. Ex.P21, Ex.P26, Ex.P28 to Ex.P30 are
reflects that the petitioner has took the treatment in
connection of the injuries sustained by him and
underwent surgery and took the treatment as inpatient
and outpatient. So, considering the oral and
documentary evidence on record, it is just and necessary
to grant just compensation to the petitioner in the
following heads;
a)Pain and suffering.
The PW2 being the injured in his evidence has
clearly stated that he has sustained fracture of both
bones of right leg, so, he was underwent surgery, inspite
of best treatment he could not come to normal position,
still he is facing difficulties due to the accidental injuries.
PW5 being the Orthopaedic Surgeon in his evidence has
clearly stated that the petitioner has sustained fracture
and underwent surgery still he is facing difficulties, due
to the non-union of fracture as it is under processing and
he has also stated about the treatment taken by the
SCCH-8 MVC No.4252/2014 and 4399/2014
petitioner as inpatient and outpatient. So considering the
evidence of the PW2 and PW5 and the injuries sustained
by the petitioner as well as the duration of treatment, he
would have sustained pain and agony for which, it is just
and necessary to award compensation of Rs.60,000/- for
the above head, it will meet the ends of justice. Hence,
Rs.60,000/- is awarded for the above head.
b) Loss of income during laid up period:
The PW2 being the injured in his evidence has
stated that prior to the accident, he was hale and healthy
working as a Assistant Manager Engineering
(Mechanical) Associate Trainer (Asia) Filters Learning
Centre at ITC ESSENTRA by getting monthly income of
Rs.50,657/- and he took the leave for a period of six
months, so he lost the income. But in his cross-
examination has categorically admitted that he has
received the salary during the leave period. Though he
has stated that he has lost the leave for a period of six
months but nothing is placed on record to show that he
SCCH-8 MVC No.4252/2014 and 4399/2014
has lost the leave for a period of six months. In the
absence of the materials on record and admission of PW2
during his cross-examination clearly reflects that the
petitioner has not sustained any financial loss during the
laid up period. So, question of granting just
compensation under the above head does not arise.
c) Medical expenses
The PW2 being the injured in his evidence has
stated that he has sustained fracture and got admitted to
the Hosmat Hospital and took the treatment as an
inpatient and underwent surgery by spending huge
amount towards his treatment. PW2 in his cross-
examination has admitted that the amount which was
spent towards his treatment has been reimbursed in the
medi claim policy, but he has denied that he has
reimbursed the entire amount which was spent for his
treatment. But he has admitted that Rs.96,000/- has
been reimbursed out of the amount which was spent
towards his treatment. The respondents have not placed
SCCH-8 MVC No.4252/2014 and 4399/2014
any materials to show that the petitioner has reimbursed
the entire amount which was spent for his treatment as
the petitioner has produced the medical bills marked as
Ex.P21, Ex.P25 and Ex.P34 for Rs.15,805/- + Rs.1,050/-
and Rs.880/- in total it comes to Rs.17,735/-. Though
the learned counsel for the respondent has disputed the
medical bills produced by the petitioner on the ground
that the medical bills produced by the petitioner are
created and fabricated, but nothing is placed on record to
show that the medical bills produced by the petitioner
are created nor fabricated in order to get the
compensation. So, in the absence of the materials on
record, it is clear that the petitioner has took the
treatment in connection of the injuries sustained by him
in a road traffic accident. Therefore, Rs.17,735/- is
granted for the above head.
SCCH-8 MVC No.4252/2014 and 4399/2014
d) Loss of future earning:
The PW1 being the injured in his evidence has
stated that he has sustained fracture of both bones of
right leg and underwent surgery and took the treatment
as an inpatient and outpatient. But inspite of best
treatment, he could not come to the normal position, still
he is facing difficulties. The PW5 being the Orthopaedic
Surgeon in his evidence has clearly stated about the
complaints and disability of the petitioner after the
accident. According to him the petitioner has sustained
whole body disability to an extent of 14%. The PW3 in his
cross examination has admitted that the fracture is not
united it is in the processing and after union of fracture
there is a chances of reducing of disability. The PW2 in
his cross-examination has categorically admitted that
after the accident he has been continued in service by
drawing salary of Rs.55,000/-, earlier he was drawing
salary of Rs.50,690/-. So, one thing is clear from the
oral and documentary evidence after the accident he was
SCCH-8 MVC No.4252/2014 and 4399/2014
drawing more salary than he was drawing the salary as
earlier. So, the question of loss of future earning does
not arise. Thus this court drawn its attention on the
decision reported in ILR 2010 KAR 2439 in between
Subash Vs. The New India Assurance Co. Ltd.,
represented by its Manager and Others, which reads
like thus;
Motor Vehicles Act, 1988--Accident Claim--
Judgement and Award---Inadequacy of
compensation---Appealed against by the
Claimant---Insurance Company appeal seeking
reduction in compensation---Claimant
continued in the services after the accident---
Award of compensation towards loss of future
income by the Tribunal---Legality of -Held,
The Tribunal has grossly erred in awarding
compensation towards loss of future income,
resulting in serious miscarriage of justice,
when in fact, the claimant has been continued
in the services of the Corporation as
"Conductor'. If the claimant is continued in
service, then, the question of awarding
compensation towards loss of future income
SCCH-8 MVC No.4252/2014 and 4399/2014
does not arise----Therefore, compensation
awarded towards loss of future income is
liable to be set aside---Judgement and Award
is modified.
On perusal of the said decision, in the above said
decision his lordship held that if the claimant is
continued in service, then, the question of awarding
compensation towards loss of future income does not
arise.
In the instant case PW2 being the injured in his
evidence has categorically admitted that after the
accident he has been continued in the service and
drawing salary of Rs.55,000/-. So, one thing is clear that
after the accident he has been continued in the service.
So, the decision as stated above is directly applicable to
the case on hand and the petitioner is not entitled for any
compensation under this head.
e) Loss of amenities, conveyance, food and
nourishment, attendant charges:
The PW2 being the injured in his evidence has
clearly stated that he has sustained fracture of both
SCCH-8 MVC No.4252/2014 and 4399/2014
bones of right leg in a road traffic accident and took the
treatment as an inpatient for a period of 3 days and he
was underwent surgery, even after the discharge, he took
the treatment as an outpatient. The PW5 being the
Orthopaedic Surgeon in his evidence has clearly stated
about the injuries sustained by the petitioner and the
surgery which was underwent by the petitioner due to
the accidental injuries and he has also stated about the
treatment taken by the petitioner as an inpatient and
outpatient. So, considering the evidence of PW2 and PW5
and duration of treatment as well as the complaints and
disability of the petitioner after the accident, it is just and
necessary to grant Rs.40,000/- for the above head, it will
meet the ends of justice. So Rs.40,000/- is granted for
the above head.
f) Future medical expenses:
The PW2 being the injured in his evidence has
clearly stated that he has sustained grievous injuries and
underwent surgery and implants are in situ. So, he has
SCCH-8 MVC No.4252/2014 and 4399/2014
to undergo one more surgery for removal of implants. The
PW5 being the Orthopaedic Surgeon in his evidence has
stated that one more surgery is required for removal of
implants and it may cost of Rs.20,000/-. So considering
the injuries sustained by him in a road traffic accident
and the evidence of the PW2 and PW5, it is just and
necessary to grant Rs.15,000/- for the above head, it will
meet the ends of justice. So, Rs.15,000/- is granted for
the above head.
41. Thus the total award stands as follows:
1.Pain and suffering Rs. 60,000-00
2.Loss of income during laid NIL
up period
3.Medical bills Rs. 17,735-00
4.Loss of future earning NIL
5.Loss of amenities, Rs. 40,000-00
conveyance, food and
nourishment, attendant
charges etc.
6.Future medical expenses Rs. 15,000-00
Total Rs.1,32,735-00
SCCH-8 MVC No.4252/2014 and 4399/2014
42. The learned counsel for the respondent while
canvassing his arguments has submitted that there is a
contributory negligence on the part of the deceased and
the injured as the driver of the offending vehicle while
taking the offending vehicle in a reverse, the deceased
and the injured were came back of the wheel and on their
negligence the accident was occurred. So, it was not
taken place on the negligence of the offending vehicle
driver. It is an admitted fact that the respondents have
not placed any materials to show that the offending
vehicle driver was taking the vehicle in a reverse, the
deceased and the injured were came back, on their
negligence the accident was occurred, if that is so the
matter would have different as the Ex.P1 is the
information filed by the informant in which nowhere
appears that the driver of the offending vehicle while
taking the vehicle in a reverse, the deceased and the
injured were proceeding on the back side of the wheel, so
the accident was occurred on their own negligence. It is
SCCH-8 MVC No.4252/2014 and 4399/2014
an admitted fact that the offending vehicle driver was
came from opposite direction and dashed against the
deceased and the injured as they were walking on the
extreme western side of the road. Ex.P4 is the sketch
reflects that the accident was occurred on account of
rash and negligent driving of the offending vehicle driver.
So, the arguments advanced by the learned counsel for
the respondent on this aspect holds no water. Thus,
question of contributory negligence on the part of the
deceased and the injured does not arise.
43.The respondent No.3 being the insurer of the
offending vehicle has admitted about the issuance of the
policy in respect of the offending vehicle in favour of the
first respondent. But he has not stated the policy
number and its validity. But the respondent Nos. 1 & 2
being the owner and the driver of the offending vehicle in
their written statement have admitted about the policy
and validity of the policy from 26.11.2013 to 27.11.2014.
The petitioners have shown the policy number and its
SCCH-8 MVC No.4252/2014 and 4399/2014
validity in the cause title of the claim petition. But the
reasons best known to the respondent No.3 has not
disputed the policy as shown in the cause title of the
claim petition. The accident was occurred on 3.7.2014.
So one thing is clear that as on the date of the alleged
accident, the policy was in existence.
44.The respondent No.3 has taken up the
contention that as on the date of the alleged accident, the
offending vehicle driver was not holding valid and
effective driving license, but the reasons best known to
the third respondent has not placed any materials on
record nor examined any authority i.e., RTO or ARTO to
show that as on the date of the alleged accident the
offending vehicle driver was not holding valid and
effective driving licence and Ex.P6 is the final report filed
by the I.O., nowhere discloses that the offending vehicle
driver was not holding valid and effective driving licence
as on the date of the alleged accident. If at all the driver
of the offending vehicle was not holding the valid and
SCCH-8 MVC No.4252/2014 and 4399/2014
effective driving licence the I.O., would have charge
sheeted against the offending vehicle driver for the
offence punishable under Section 181 of MV Act. So, on
record there is no material to show that the offending
vehicle driver was not holding valid and effective driving
licence as on the date of the alleged accident. So, one
thing is clear that as on the date of alleged accident the
offending vehicle driver was holding valid and effective
driving license.
45. It is an admitted fact that the petitioners have
filed the petitions against the owner, driver and the
insurer. The first respondent being the owner has
admitted that the second respondent was the driver of
the offending vehicle as on the date of alleged accident.
So, vicarious liability is on the respondent No.1. So, the
question of fixing the liability on the respondent No.2
does not arise. So, the claim petitions against the
respondent No.2 is deserves for dismissal. So, as on the
date of accident the respondent No.1 being the owner and
SCCH-8 MVC No.4252/2014 and 4399/2014
the respondent No.3 being the insurer are jointly and
severally liable to pay the compensation. But in view of
the valid insurance policy the respondent No.3 is liable to
pay the compensation to the petitioners with interest at
the rate of 8% p.a. in view of the decision of the Hon'ble
Supreme Court reported in 2012 KLJ 292 from the
date of petitions till its realization. In the result, the issue
No.2 in both the claim petitions is answered as partly in
the affirmative.
46. Issue No.3 in both the claim petitions.
In view of my finding on issue Nos.1 and 2 in both
claim petitions, I proceed to pass the following:
ORDER
The claim petitions filed by the petitioners in MVC.Nos.4252/2014 and 4399/2014 u/s 166 of the M.V. Act as against the respondent No.2 is hereby dismissed.
SCCH-8 MVC No.4252/2014 and 4399/2014 The claim petitions filed by the petitioners in MVC.Nos.4252/2014 and 4399/2014 u/s 166 of the M.V. Act as against the respondent Nos.1 & 3 are allowed in part with costs.
The compensation in both the cases has been awarded as mentioned here under:
Compensation Sl. MVC Awarded No. Number (in Rupees) 1 4252/2014 Rs.74,66,320-00 2 4399/2014 Rs. 1,32,735-00 Interest is granted at the rate of 8% per annum from the date of the petitions till the date of payment/bank deposit, in both the claim petitions.
In both the claim petitions, respondent Nos. 1 & 3 are jointly and severally held liable to pay the compensation. In view of the valid insurance policy the respondent No.3 being the insurer in both the claim petitions is hereby directed to deposit the amount awarded in the above petitions within one month from the date of award.
SCCH-8 MVC No.4252/2014 and 4399/2014 On deposit of the compensation amount together with interest in MVC 4252/2014, 40% is allotted to the share of petitioner No.1 and 25% each is allotted to the share of petitioner Nos.2 and 3 by way of apportionment of compensation amount.
Out of the share amount of petitioner Nos.1 & 3 in MVC 4252/2014, 40% of the amount shall be deposited in their names in any nationalised or scheduled bank of their choice for a period of three years and the remaining 60% shall be released to them by means of a/c payee cheque on proper identification. However, they are at liberty to withdraw the periodical interest accrued on their deposit amount from time to time.
Out of the share amount of petitioner No.2 being the minor entire amount shall be deposited in any nationalised or scheduled bank till she attains age of majority. After attaining the age of majority the entire amount shall be paid to the petitioner without any further proceedings. However, the petitioner No.1 being SCCH-8 MVC No.4252/2014 and 4399/2014 the natural guardian of the petitioner No.2 is at liberty to withdraw periodical interest accrued on her deposit amount from time to time.
On deposit of the compensation amount together with interest in MVC 4399/2014, 40% of the amount shall be deposited in the name of the petitioner in any nationalised or scheduled bank of his choice for a period of three years and the remaining 60% shall be released to him by means of A/c payee cheque on proper identification. The petitioner is at liberty to withdraw the periodical interest accrued on his deposit amount from time to time.
The expenses to be incurred for future medication shall not carry any interest.
Advocate fee is fixed in each of the petition at Rs.1,000/-.
The original judgment copy shall be kept in MVC No.4252/2014 and copy of the same shall be kept in MVC 4399/2014.
SCCH-8 MVC No.4252/2014 and 4399/2014 Draw award accordingly.
(Dictated to the stenographer, transcribed by him, corrected by me and then pronounced in the open court on this the 4th day of February 2016) (P.J. Somashekar) XII Addl. Small Causes Judge, Member-M.A.C.T., Bangalore.
ANNEXURE List of the witnesses examined on behalf of petitioner:
PW1 Smt. Gayathri M. 8.6.2015 PW2 Shri K.Venkatesh 11.6.2015 PW3 Shri Shekar 7.8.2015 PW4 Shri Ajith Gopinath 7.8.2015 PW5 Dr.Chethan A. 18.8.2015 List of the documents exhibited on behalf of petitioner:
Ex.P1 True copy of Complaint Ex.P2 True copy of FIR Ex.P3 True copy of Panchanama Ex.P4 True copy of Spot sketch Ex.P5 True copy of P.M.report Ex.P6 True copy of Charge sheet Ex.P7 Death certificate Ex.P8 ITC ESSENTRA document SCCH-8 MVC No.4252/2014 and 4399/2014 Ex.P9 Pay slip Ex.P10 Document pertains to ITC ESSENTRA Ex.P11 Pay slip Ex.P12 Medical certificate Ex.P13 Columbia hospital document Ex.P14 Invitation Ex.P15 Pass port Ex.P16 Identity card of the deceased Ex.P17 Discharge summary Ex.P18 Pay slip Ex.P19 Pay slip Ex.P20 X-rays Ex.P21 Medical bills Ex.P22 Wound certificate Ex.P23 Income tax returns Ex.P24 ITC Essentra document Ex.P25 Medical bills Ex.P26 CD Ex.P27 Photograph and CD Ex.P28 X-rays Ex.P29 Inpatient record Ex.P30 Outpatient record Ex.P31 Meeting copy Ex.P32 Authorisation letter Ex.P33 Identity card SCCH-8 MVC No.4252/2014 and 4399/2014 Ex.P34 Medical bills Ex.P35 True copy of IMV Report List of the witnesses examined on behalf of respondents:
RW1 Sri Venugopal 28.9.2015 RW2 Sri Nagaraj 3.12.2015
List of the documents marked on behalf of respondents:
NIL (P.J. Somashekar), XII Addl. Judge-Member, MACT, Bangalore.