Bangalore District Court
Munirathna @ Minirathnamma vs Hari on 16 June, 2016
IN THE COURT OF III ADDL.SENIOR CIVIL JUDGE AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, BENGALURU.(SCCH-18)
Dated this 16th day of June 2016.
Present: SRI.VEERANNA SOMASEKHARA
B.Com, LL.B.,
III ADDL. SENIOR CIVIL JUDGE.
COURT OF SMALL CAUSES,
BANGALORE.
M.V.C.No.4875/2012
PETITIONERS: 1. Munirathna @ Minirathnamma,
W/o Late Subramani,
Aged about 28 years,
2. Nithyashree,
D/o. Late Subramani,
Aged about 11 years,
3. Padmashree,
D/o. Late Subramani,
Aged about 9 years,
4. Vignesh,
S/o Late Subramani,
Aged about 9 years,
5. Yellappa,
S/o Late Honagurkeppa,
Aged about 65 years,
6. Ramakka
2 MVC.No.4875/2012
SCCH-18
W/o Yellappa,
Aged about 60 years
All are residing at Byramangala
Dinkanikote Taluk, Krishnagiri Dist
Tamil Nadu - 635113.
Presently residing at
No.39, C/o Munikrishnappa,
3rd cross, Rupenagrahara,
Madivala, Hosur Main road,
Bangalore - 560068.
Since petitioner 2 to 4 are minors
Rep by their mother and natural
Guardian i.e., petitioner No.1.
(By Pleader Sri.VR)
/Vs/
RESPONDENTS: 1.Hari, K
S/o Kaveri shetty
Malaichanou village,
Gengaleri post,
Krishnagiri,
Tamil nadu - 635102.
(By pleader Sri.KJ)
2. Future general India insurance co Ltd,
Padadena,
No.18/1, old NO.125A
3rd floor, above Certificate-zone,
Ashoka pillar road,
Jayanagar,
Bangalore - 560011.
(By pleader Sri.MM)
3 MVC.No.4875/2012
SCCH-18
3. Ramesh,
S/o Rajappa,
Ballur Village, Attibele hobli,
Anekal Taluk,
Bangalore Dist.
(Exparte)
4. Umashankar,
NO.36-1, Pothigal Nagar
Ward 1 Hosur,
Tamilnadu,
(Exparte)
5. Shriram General insurance co ltd.
Regional office, NO.4,
2nd floor, Monarch chambers,
Infantry road,
Bangalore.
(By pleader Sri.SM)
J U D G M E N T
The petitioners have filed this petition against the respondents U/Sec. 166 of M.V. Act for seeking compensation of Rs.30,00,000/- for the death of Sri.Subramani S/o.Yellappa in a motor vehicle accident.
2. The brief facts of the petition are as under:
On 18-7-2012, at about 1.30 a.m., when the deceased Subramani was standing on Bangalore- Hosur main road (NH-7), 4 MVC.No.4875/2012 SCCH-18 opposite to LA Classic Hotel, Attibele Hobli, Yadavanahalli, at that time, the driver of the Tata Canter bearing registration No.TN-24-K-1959, drove the same in a rash and negligent manner and dashed to the pedestrian Subramani. As a result of the said accident, the Subramani fell down on the road, then the wheel of the said canter ran over the body of subramani and as such, he has sustained grevious injuries and died on the spot. Thereafter the public gathered at the spot have shifted the dead body to the Government hospital, Attibele for postmortem. After the postmortem, the petitioners have received the dead body and conducted the funeral and obsequies ceremony by spending huge amount.
3. The contention of the petitioners is that, deceased Subramani was hale and healthy at the time of accident, aged about 35 years, working as a Fitter in Prabha Born to build, Aishwarya Contractors Tamilnadu and drawing salary of Rs.11,200/-p.m. Further the Contention of the petitioners is that, the petitioner No.1 is the wife, the petitioners no.2 to 4 5 MVC.No.4875/2012 SCCH-18 are the children and the petitioner no.5 and 6 are the parents of deceased and they are the legal heirs and dependants of deceased. Due to the unexpected death of Subramani, the petitioners have suffered lot and they have lost their bread earner.
The respondent No.1 is the owner and the respondent no.2 is the insurer of the canter bearing registration No.TN-24-K-1959. The respondent No.3 is the RC owner, the respondent no.4 is the policy holder and the respondent no.5 is the insurer of the tempo bearing registration No.KA-51-2748 and the policy was in force as on the date of accident. The accident has occurred due to rash and negligent driving of the driver of the Canter Lorry bearing registration No.TN-24-K-1959. Hence they are jointly and severally liable to pay compensation to the petitioners.
Contending the above facts, they have filed this claim petition against the respondents for seeking compensation of Rs.30,00,000/- with interest and cost.
6 MVC.No.4875/2012
SCCH-18
4. In response to the petition notice, the respondent No.1, 2 and 5 have appeared before the court through their respective counsel and filed the objection statement. On the other hand, the respondent No.3 & 4 have not appeared before the court. According, they were placed exparte.
5. The brief contents of objection statement of respondent no.1 are as under:
The respondent No.1 has admitted the alleged accident as narrated in the petition. Further he has denied the age, occupation and income of the deceased and also funeral expenses incurred by the petitioners. Further the respondent No.1 has denied the entire accident in toto. Further he contended that, he is the owner of the canter bearing registration No.TN-24-K- 1959 and the said vehicle was insured with the second respondent and the policy was in force as on the date of accident and as such, if this court grants the compensation to the petitioners, then the respondent No.2 is liable to compensation to the petitioners. Contending the above facts, he prays to dismiss the petition as against the respondent No.1. 7 MVC.No.4875/2012
SCCH-18
6. The brief contents of objection statement of respondent no.2 are as under:
The respondent No.2 has contended that, the petition filed by the petitioners is not maintainable either in law or on facts. Further he contended that, the owner and the concerned police have not complied the mandatory provision of Sec.134 (c) and 158 (6) of M.V.Act. Further the respondent No.2 contended that, the driver of the alleged canter was not having valid and effective driving licence to drive the vehicle as on the date of accident and as such, the respondent No.1 has violated the policy conditions. Further the respondent No.2 has admitted the issuance of policy to the alleged Canter lorry bearing registration No.TN-24-K-1959 and the liability if any is subject to the terms and conditions mentioned in the policy. Further the respondent No.2 has denied the part contents of petition averments in toto. Further he contended that, the accident has not occurred due to rash and negligent act of the driver of the canter. On the other hand, the accident has occurred due to negligence on the part of the driver of the 8 MVC.No.4875/2012 SCCH-18 other vehicles. Further the respondent No.2 has denied the age, occupation and income of the deceased and also relationship of the petitioners with the deceased. Contending the above facts, the respondent No.2 prays to dismiss the petition as against him with cost.
7. The brief contents of objection statement of respondent no.5 are as under:
The respondent No.5 has admitted the issuance of policy to the Tempo bearing registration No.KA-51-2748 and the liability if any is subject to the terms and conditions mentioned in the policy. Further the respondent No.5 has contended that, the owner of the vehicle and the concerned police have not complied the mandatory provision of Sec.134 (c) of 158 (6) of M.V.Act. Further he contended that, on perusal of the contents of petition, it reveals that, the accident has occurred due to sole negligence on the part of the driver of the canter, in spite of that, the petitioners have impleaded the insurer of the tempo as a respondent No.5 and as such, the petition filed by the petitioners is not maintainable for mis-joinder of parties. 9 MVC.No.4875/2012
SCCH-18 Further he contended that, after the investigation, the concerned police have filed the charge sheet against the driver of the canter and as such, if the petitioners have entitle the compensation, then they get the compensation from the owner and insurer of the said canter vehicle. Further the respondent No.5 has denied the age, occupation and income of the deceased and also relationship of the petitioners with the deceased. Further he contended that, the compensation claimed by the petitioner is exorbitant and fanciful one. Contending the above facts, the respondent No.5 prays to dismiss the petition as against him with cost.
8. On the basis of above pleadings, the following issues were framed:
1. Whether the petitioners prove that Subramani,S/o.
Yellappa, died due to injuries sustained by him in a motor vehicle accident that was taken place on 18- 07-2012, at about 1.30a.m on NH-7 Bengaluru-Hosur main road, Opposite to L. A Classic Hotel, Attibele Hobli, Anekal Taluk, Bengaluru District, involving vehicle bearing Reg.No.TN-24-K-1959 belonging to Respondent No.1 and insured with Respondent No.2? 10 MVC.No.4875/2012
SCCH-18
2. Whether the petitioners prove that they are the only legal heirs and the dependents of the deceased?
3. Whether the petitioners prove that the accident has mainly occurred due to the rash and negligent driving of the said vehicle?
4. Whether the petitioners are entitled for compensation from the respondents, If so what is the quantum?
5. What order?
9. In order to prove their case, the first petitioner has examined herself as PW-1 and got marked the documents as Ex-P-18. Further in support of her evidence, she has examined 3 witnesses as PW-2 to 4 and got marked the documents as Ex-P-19 to P-29 respectively.
10. On behalf of the fifth respondent, its assistant legal manager has been examined as RW-1, but no documents were got marked.
11. After hearing both the sides, this court has passed the Judgment vide order dated 04-01-2014 by partly allowing 11 MVC.No.4875/2012 SCCH-18 the petition by awarding compensation of Rs.17,10,000/-with interest.
12. Thereafter, the petitioners and the respondent No.2 insurance company have preferred the appeals before the Hon'ble High Court of Karnataka in MFA No.3164/2014 and 2578/2014 respectively. The Hon'ble High Court of Karnataka was pleased to set aside the judgment and award passed by this court and remanded the matter to this court with a direction to dispose of the claim petition afresh by giving an opportunity to the parties to lead their additional evidence.
13. After receipt of file from the Hon'ble High Court of Karnataka, the petitioners and the respondent No.2 & 5 have appeared before the court through their respective counsel. Thereafter both the parties were given opportunity to adduce further evidence. Then the petitioners have examined 2 witnesses as PW-5 & 6 and got marked the documents as Ex.P.30 to 32 respectively.
12 MVC.No.4875/2012
SCCH-18
14. On the other hand, the second respondent insurance company has examined one witness and also its official as RW-2 and 3 and got marked the documents as Ex.R.1 to 3 respectively.
15. Heard the arguments of both the sides and perused the records.
16. My findings on the aforesaid issues are as follows:
Issue No.1 to 3 : Affirmative Issue No.4: Partly affirmative Issue No.5: As per final order for following:
REASONS
17. Issue No.1 & 3: Both these issues are interconnected with each other. Hence in order to avoid the repetition of facts they are taken together for common consideration.
18. During the course of argument, the learned counsel for the petitioners argued by reiterating the contents of petition and also evidence put forth by PW-1 to 6. Further he 13 MVC.No.4875/2012 SCCH-18 argued that, the defence of the respondent No.2 is that, the accident has not occurred due to rash and negligent driving of the driver of the alleged canter. On the other hand, the accident has occurred due to rash and negligent driving of the driver of the tempo. To prove the said fact, though the respondent No.2 has examined one eye-witness as Pw-2, but his evidence is not supported with proper documents. On the other hand, the evidence of RW-2 is helpful to the case of the petitioners. Further he argued that, on perusal of the copy of police investigation papers produced by the petitioners, it shows that, the accident has occurred mainly due to rash and negligent driving of the driver of the alleged canter vehicle. Further he argued that, the petitioners are the wife, children and parents of deceased and also they have proved their case as contended in the petition by producing proper documents. According, he prays to allow the petition.
In support of his argument, the counsel for the petitioner has relied upon the following citations. 14 MVC.No.4875/2012
SCCH-18
1. 2014 (2) T.A.C. 744 (SC) (KalpanaRaj and others V/s. Tamil Nadu State Transport Corporation).
2. 2013 ACJ 1403 (Rajesh and others V/s. Rajbir Singh and others)
3. 2015 AIR SCW 3105 (Munna Lal Jain and another V/s. Vipin Kumar Sharma and others)
19. Per contra, the learned counsel for the respondent No.2 argued by reiterating the contents of objection statement filed by the respondent No.2. Further he argued that, on perusal of the copy of hand sketch produced by the petitioners, it shows that, before causing the accident by the alleged canter lorry, the deceased Subramani has sustained injuries due to turn turtle of the tempo. Further he argued that, on perusal of the evidence of complainant and driver of the tempo, it is clear that, the deceased Subramani was not died due to accident caused by the alleged canter lorry. Further he argued that, the petitioners have failed to prove the occupation of the deceased and also they have failed to prove their case as contended in the 15 MVC.No.4875/2012 SCCH-18 petition by producing proper documents. Accordingly, he prays to dismiss the petition as against the respondent No.2.
20. On the other hand, the learned counsel for the respondent No.5 argued by reiterating the contents of objection statement filed by the respondent No.5 and also evidence put forth by Rw-1. Further he argued that, on perusal of the copy of police investigation papers produced by the petitioners, it is clear that, the alleged accident has occurred due to sole negligence on the part of the driver of the canter vehicle bearing registration No.TN-24-K-1959. Further he argued that, the petitioners have failed to prove the occupation and income of the deceased and also failed to prove their case as contended in the petition. Further he argued that, the accident has not occurred due to negligence on the part of the driver of the Tempo bearing registration No.KA51-2748. Contending the above facts, he prays to dismiss the petition as against the respondent No.5.
16 MVC.No.4875/2012
SCCH-18
21. Before discussing the merits of the case, I intend to narrate some facts.
As stated above that, the Hon'ble High Court of Karnataka has directed this court to give an opportunity to both the parties for adducing the additional evidence and dispose of the matter afresh and as such, I intending to discuss the merits of the case afresh.
22. On perusal of the records, it appears that, to prove their case, the petitioner No.1 has examined herself as Pw-1 and she has stated in her evidence by reiterating the contents of petition. Further in support of her evidence, she has produced the documents and the same are marked as Ex.P.1 to 18.
Thereafter the counsel for the respondent No.2 & 5 have cross-examined the PW-1 at length. On perusal of the entire cross-examination, it appears that, she is not an eye-witness to the alleged incident and as such, her evidence is not much helpful regarding the rash and negligent act of the driver of the alleged canter lorry.
17 MVC.No.4875/2012
SCCH-18
23. Further to prove the rash and negligent driving of the driver of the alleged canter bearing registration No.TN-24-K-1959, the petitioners have examined one of the independent eye-witnesses, complainant and the driver of the tempo bearing registration No.KA-51-2748 as PW-2, 5 & 6 respectively.
24. The Pw-2 has stated that, he was working as an Ambulance Assistant at BETL Company and on 18-07-2012 at about 1.30 a.m. when he was under the duty, then he saw that, near Yedavanahalli village, the 407 vehicle bearing registration No.KA-51-2748 was turn turtled on the road and due to the said impact, the inmates of the tempo were sustained simple injuries, then he and other persons have tried to shift the injured to Ambulance, at that time, the driver of the alleged canter bearing registration No.TN-24-K-1959 was drove the same in a rash and negligent manner and dashed to the 407 vehicle and as such, Subramani has fell down on the road and at that time, the canter wheel was ran over on the said subramani and due to the 18 MVC.No.4875/2012 SCCH-18 same, he has sustained grevious injuries and died on the spot and the accident has occurred mainly due to rash and negligent driving of the driver of the alleged canter.
25. Thereafter the counsel for the respondent No.2 has cross-examined the Pw-2 at length. In the cross-examination dated 24-07-2013, the PW-2 has clearly stated that:
"It is not true to suggest that I have not witnessed the accident."
"It is true that vehicle bearing registration No.2748 was met with an accident and at the spot. I was not aware that who all were injured before I went the to spot. After we reached the spot, driver parked our ambulance on the side of the road and was seeing as to who all were injured in the accident at that time within 15-20 seconds, canter lorry came and hit against vehicle bearing registration No.2748 and also to our ambulance. I have also sustained injuries. The registration number of the canter lorry is TN-24-K-1959."
"It is not true to suggest that in order to help the petitioners, I am giving false evidence though I am not aware of the facts of the case."19 MVC.No.4875/2012
SCCH-18 On perusal of the above evidence, it reveals that, though the counsel for the respondent No.2 has cross-examined the Pw-2 at length, but nothing has been elicited from him to disbelieve his version regarding the rash and negligent driving of the driver of the alleged canter lorry.
26. Further the specific contention of the respondent No.2 is that, the Pw-2 is not an eye-witness to the incident. But on perusal of Ex-P-7 i.e. copy of charge sheet, wherein the PW-2 is shown as injured eye-witness to the incident. Considering the above facts, I am of the opinion that, the contention of the respondent No.2 is not acceptable one.
27. Further to prove the rash and negligent driving of the driver of the canter lorry, the petitioners have examined the complainant as Pw-5, who has stated in his evidence that, on 18-07-2012, he was working as a route petrolling officer, at about 1.00 a.m. when he reached near Law Classic Hotel, at that time, the accident has occurred due to rash and negligent driving 20 MVC.No.4875/2012 SCCH-18 of the driver of the canter bearing registration No.TN-24-K- 1959 and thereafter, he has lodged the complaint before the concerned police to that effect.
28. Thereafter the counsel foe the respondent No.2 & 5 have cross-examined the Pw-5 at length. In the cross- examination, the Pw-5 has clearly stated at page No. 3 to 7 that:
"n.J£ï-24-PÉ-1959 ªÁºÀ£ÀªÀÅ C¥ÀWÁvÀªÁ¬ÄvÉAzÀÄ ºÉüÀĪÀ ¸ÀܼÀPÉÌ §gÀĪÀ ªÉÆzÀ®Ä C¥ÀWÁvÀªÀÅ D ªÉÆzÀ®Ä ¸ÀA§«¹vÀÄÛ JAzÀgÉ ¸Àj. ªÉÄÃ¯É ºÉýzÀ C¥ÀWÁvÀªÀÅ AiÀiÁªÀ ªÁºÀ£ÀUÀ¼À ªÀÄzsåÉ DVvÉÛAzÀÄ PÉüÀ¯ÁV, D ¸ÀܼÀzÀ §½ MAzÀÄ mÉA¥ÉÇà £ÀA PÉJ-51-2748 ªÁºÀ£ÀªÀÅ ¥À°ÖAiÀiÁVvÉÛAzÀÄ ¸ÁQë ºÉüÀÄvÁÛgÉ. ¸ÀzÀj ªÁºÀ£ÀªÀÅ UÀÆqïì ªÁºÀ£À«zÀÄÝ, D ªÉüÉUÉ D ªÁºÀ£ÀzÀ°è K£ÀÆ EgÀ°®è. ¥À°Ö ºÉÆqÉzÀ PÁgÀt, D mÉA¥ÉÇÃzÀ°è ºÉÆÃUÀÄwÛzÀÝ ªÀÄƪÀjUÉ UÁAiÀÄUÀ¼ÀÄ DVzÀݪÀÅ JAzÀgÉ ¸Àj. ¸ÀzÀj 3 d£À UÁAiÀÄUÉÆAqÀ ªÀåQÛUÀ¼À°è F PÉù£À°è PÁtô¹gÀĪÀ ªÀÄÈvÀ ¸ÀħæªÀÄtô PÀÆqÁ M§â£ÀÄ JAzÀgÉ ¸Àj. ¸ÁQë ¥ÀÅ£ÀB ºÉüÀĪÀÅzÉãÉAzÀgÉ ¸ÀħæªÀÄtô EªÀjUÉ ¸Àé®à vÀgÀazÀ UÁAiÀÄ ªÀiÁvÀæ DVvÉÛAzÀÄ ºÉüÀÄvÁÛgÉ. n.J£ï-24-PÉ-1959 ªÁºÀ£ÀªÀÅ ¸ÀÞ¼ÀPÉÌ §gÀĪÀ ªÉÆzÀ®Ä UÁAiÀÄUÉÆAqÀ 3 d£ÀgÀ£ÀÆß DåA§Ä¯É£ïì£À°è ºÁPÀÄwÛzÀÄÝzÁV ºÉýzÀÄÝ, CzÀg° À è ¸ÀħæªÀÄtô PÀÆqÁ EzÀÝ£ÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è."
"n.J£ï-24-PÉ-1959 ªÁºÀ£ÀªÀÅ C¥ÀWÁvÀ ªÀiÁrvÉAzÀÄ ºÉüÀĪÀ ªÉÆzÀ®Ä DzÀ C¥ÀWÁvÀªÀÅ PÉJ-51-2748 ªÁºÀ£ÀzÀ ZÁ®PÀ£À vÀ¦à¤AzÀ DVvÉÛAzÀÄ ¸ÀÆa¸À¯ÁV , D §UÉÎ £À£ÀUÉ UÉÆwÛ®è, PÁgÀt £ÁªÀÅ ¸ÀܼÀPÉÌ ºÉÆÃUÀĪÀ ªÉÆzÀ®Ä mÉA¥ÉÇà ¥À°ÖAiÀiÁVvÉÛAzÀÄ ¸ÁQë ºÉüÀÄvÁÛgÉ." 21 MVC.No.4875/2012
SCCH-18 "CfðAiÀÄ°è PÁtô¹zÀ C¥ÀWÁvÀªÀ£ÀÄß 30 «Äà zÀÆgÀ¢AzÀ £ÉÆÃrgÀĪÀÅzÁV ºÉüÀÄwÛzÀÄÝ, D PÁgÀt¢AzÀ C¥ÀWÁvÀ AiÀiÁªÀ ªÁºÀ£ÀzÀ vÀ¦à¤AzÀ DVgÀĪÀÅzÉAzÀÄ £À£ÀUÉ w½¢®èªÉAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÁQë ¸ÀévÀB ºÉüÀĪÀÅzÉãÉAzÀgÉÃ, C¥ÀWÁvÀªÀÅ PÁåAlgï ZÁ®PÀ£À vÀ¦à¤AzÀ CVgÀĪÀÅzÉAzÀÄ ºÉüÀÄvÁÛgÉ. mÉA¥ÉÇà ¥À°Ö ºÉÆqÉzÀ PÁgÀt, ¸ÀħæªÀÄtô EªÀgÀÄ UÁAiÀĺÉÆA¢zÀÄÝ ªÀÄvÀÄÛ D UÁAiÀÄUÀ¼À PÁgÀt CªÀgÀÄ ªÀÄgÀtºÉÆA¢gÀĪÀgÉAzÀgÉ ¸ÀjAiÀÄ®è."
Further in support of evidence of PW-1, 2 & 5, the petitioners have examined the driver of the tempo bearing registration No.KA-51-2478, who has stated in his evidence that, on 18-07-2012 at about 1.30 a.m., he was driving the tempo bearing registration No.KA-51-2478 from Bangalore towards Hosur and when he reached near Yedavanahalli, then his vehicle was turned turtle on the road and as such, he has sustained simple injuries. Further he has stated that, one Subramani contacted the Ambulance service for shifting him to the Ambulance, at that time, the driver of the canter bearing registration No.TN-24-K-1959 drove the same in a rash and negligent manner and dashed to the tempo and thereafter dashed to Subramani and also to the Ambulance and as such, the 22 MVC.No.4875/2012 SCCH-18 said Subramani and others have sustained grevious injuries and the injured subramani died on the spot.
29. Thereafter the counsel for the respondent No.2 & 5 have cross-examined the Pw-6 at length. In the cross- examination, the Pw-6 has clearly stated at page No.4 to 7 that:
"¢£ÁAPÀ 18.07.2012 gÀAzÀÄ mÉA¥ÉÇà £ÉÆÃAzÀtô ¸ÀASÉåB PÉJ51- 2748 ªÁºÀ£ÀªÀ£ÀÄß £Á£Éà ZÀ¯Á¬Ä¸ÀÄwÛzÉÝ."
"£À£Àß UÁr ¥À°Ö ºÉÆqÉzÀ «µÀAiÀĪÁV £Á£ÀÄ ¥ÉÇðøÀgÀ ªÀÄÄAzÉ ºÉýPÉ PÉÆnÖgÀÄvÉÛãÉ. £À£Àß UÁrAiÀÄÄ ¥À°Ö ºÉÆqÉzÀ «µÀAiÀĪÁV £À£Àß «gÀÄzÀÝä, ¥ÀÉÆðøÀgÀÄ ¥ÀæPÀgÀt zÁR°¹gÀĪÀgÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è. £Á£ÀÄ ZÁ®PÀ£ÉAzÀÄ EzÀÝ mÉA¥ÉÇêÀ£ÀÄß £Á£ÀÄ ªÉÃUÀªÁV ZÀ¯Á¬Ä¹PÉÆAqÀÄ ºÉÆÃzÀ PÁgÀt UÁr ¥À°ÖAiÀiÁV CzÀg° À èzÀݪÀgÉ®èjUÀÆ UÁAiÀÄUÀ¼ÀÄ DzÀªÀÅ JAzÀgÉ ¸ÀjAiÀÄ®è."
"£Á£ÀÄ ZÁ®PÀ£ÉAzÀÄ EzÀÝ mÉA¥ÉÆêÀ£ÀÄß ªÉÃUÀªÁV ZÀ¯Á¬Ä¹PÉÆAqÀÄ ºÉÆÃV ¥À°ÖºÀÉÆqɹzÀ PÁgÀt, ¸ÀħæªÀÄtô EªÀjUÉ UÁAiÀÄUÀ¼ÁV CzÀjAzÀ CªÀgÀÄ ªÀÄgÀtºÉÆAzÀ®Ä PÁgÀtªÁ¬ÄvÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è."
"¸ÀħæªÀÄtô EªÀgÀÄ £À£Àß mÉA¥ÀÅÉÁà ªÀÄvÀÄÛ DåA§Ä¯É£ïì ªÀÄzÀsåzÀ°è ¹Q̺ÁQPÉÆAqÀÄ UÁAiÀĺÉÆA¢ ªÀÄgÀtºÉÆA¢zÀÄÝ, CªÀgÀÄ ªÀÄgÀtºÉÆAzÀ®Ä nJ£ï.24-PÉ-1959 ªÁºÀ£À AiÀiÁªÀÅzÉà jÃw PÁgÀtªÀ®èªÉAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÀħæªÀÄtô FvÀ£ÀÄ mÉA¥ÉÇÃzÀ°è PÉ®¸ÀUÁgÀ£ÉAzÀÄ ºÉÆÃUÀÄwÛgÀzÉÃ, ¥ÀæAiÀiÁtôPÀ£ÉAzÀÄ ¥ÀæAiÀiÁtô¸ÀÄwÛzÀÄÝ ªÀÄvÀÄÛ D jÃw ºÉýzÀ°è ¥ÀjºÁgÀ §gÀĪÀÅ¢®èªÉAzÀÄ w½zÀÄ, £ÀªÀÄä ªÁºÀ£ÀzÀ ªÀiÁ°ÃPÀgÀÄ ªÀÄvÀÄÛ £ÁªÀÅ PÀÆrPÉÄÁAqÀÄ nJ£ï.24-PÉ-1959 ªÁºÀ£ÀzÀ ZÁ®PÀ£À «gÀÄzÀÞ ¸ÀļÀÄî ¦ügÁå¢ PÉÆr¹gÀĪɪÀÅ JAzÀgÉ ¸ÀjAiÀÄ®è."23 MVC.No.4875/2012
SCCH-18 On perusal of the above evidence of PW-5 & 6, it appears that, though the counsel for the respondent No.2 has cross- examined the Pw-5 & 6 at length, but nothing has been elicited from them to disbelieve their version regarding the rash and negligent driving of the driver of the alleged Canter lorry.
30. Further as stated above that, the specific contention of the respondent No.2 is that, the accident has not occurred due to rash and negligent driving of the driver of the canter lorry. On the other hand, the accident has occurred mainly due to rash and negligent driving of the driver of the Tempo.
31. To prove the said fact, the respondent No.2 has examined one Route Petrol officer of BETL Toll as RW-2, who has stated in his evidence that, on 18-07-2012, he was working as a Route Petrolling Officer and at about 1.10 a.m. when they reached near old check post of Electronic City, at that time, one tempo has turned turtle on the road and as such, some of the 24 MVC.No.4875/2012 SCCH-18 inmates have sustained simple injuries, at that time, he and other staffs were trying to shift the injured to Ambulance, then the driver of the canter lorry drove the same in a rash and negligent manner and dashed to the tempo and ambulance and due to the said impact, Subramani and others have sustained simples as well as grevious injuries and thereafter the injured Subramani died on the spot.
32. Thereafter the counsel for the petitioners has cross-examined the RW-2 at length. In the cross-examination, the RW-2 has clearly stated at Page No.4 that:
"C¥ÀWÁvÀªÀÅ læPï £ÉÆÃAzÀtô ¸ÀASÉå nJ£ï-24-PÉ-1959 ªÁºÀ£ÀzÀ ZÁ®PÀ¤AzÀ DVgÀĪÀÅzÉAzÀÄ ¸ÀÆa¸À¯ÁV, D ªÁºÀ£ÀªÀÅ ªÉÄÃ¯É ºÉýzÀ ºÀ¼ÉAiÀÄ ZÉPï¥ÉÇøïÖ §½ mÉA¥ÉÇà ¥À°ÖAiÀÄÁVzÀÄÝ , D ªÉüÉUÉ læPï §AzÀÄ £À£ÀUÉ ªÀÄvÀÄÛ ªÉÄÃ¯É ºÉýzÀ ¥À°ÖºÉÆqÉzÀ mÉA¥ÉÇÃPÉÌ ªÀÄvÀÄÛ DåA§Ä¯É£ïìUÉ PÀÆqÁ C¥ÀWÁvÀ ªÀiÁrvÉAzÀÄ ¸ÁQë ºÉüÀÄvÁÛgÉ."
On perusal of the above evidence, it appears that, though the respondent No.2 has examined this witness on his behalf, but the evidence of RW-2 is not helpful to the defence taken by 25 MVC.No.4875/2012 SCCH-18 respondent No.2. On the other hand, the evidence of Rw-2 is helpful to the version of the petitioner.
33. Further to prove the rash and negligent driving of the driver of the alleged canter. In support of oral evidence, the petitioners have relied upon the copy of police investigation papers. On perusal of Ex.P.1 and 7 i.e., copy of FIR with complaint and charge sheet, it reveals that, Attibele Police have registered a case against the driver of Canter lorry bearing registration No.TN-25-K-1959 and after completion of investigation, the concerned police have filed the charge sheet against the driver of the said vehicle.
Considering the above facts and on perusal of evidence of PW-2, 5, 6 & RW-2 coupled with documents and for the above reason, I am of the opinion that, the petitioners have proved that, the accident has occurred mainly due to sole negligence on the part of the driver of the Canter bearing registration No.TN-25-K-1959.
26 MVC.No.4875/2012
SCCH-18
34. Further as stated above that, the respondent No.2 has disputed the involvement of the alleged canter in the accident. But as stated above that, all the witness examined by the petitioners and respondent No.2 have supported the version of the petitioners and also stated that, the alleged canter was involved in the accident and the alleged accident has occurred due to negligence on the part of the driver of the canter. Considering the above facts, I am of the opinion that, if at all, the accident has not occurred due to negligence on the part of the driver of canter lorry, then it was the duty of the respondent No.2 to examine the driver of the canter or investigation officer. But the respondent No.2 did not do so. Considering the above facts, I am of the opinion that, the contention of the respondent No.2 is not acceptable one.
35. Further on perusal of Ex.P.4 & 5 i.e. copy of Inquest panchanama and PM report, it appears that, Subramani has sustained grievous injuries in the above said accident and succumbed to the said injuries.
27 MVC.No.4875/2012
SCCH-18
36. On appreciation of evidence of the PW-1 coupled with documents and for the above reason, I am of the opinion that, the petitioners have proved the issue No.1 & 3 by producing oral and documentary evidence. Accordingly, I answer the issue No.1 & 3 are in the affirmative.
37. Issue No.2: The specific contention of the petitioners is that, the petitioner No.1 is the wife, the petitioner No.2 to 4 are the children and the petitioner No.5 & 6 are the parents of deceased and they are the legal heirs and dependents upon of the income of deceased.
On the other hand, the respondents have disputed the relationship of the petitioners with the deceased.
38. To prove their relationship with the deceased, the petitioners have relied upon the documents at Ex.P.9 to 12 and Ex.P.14 to 16 i.e. copy of ID card of petitioner No.1, deceased and the petitioner No.5 & 6 and the study certificates of petitioner No.2 to 4. On perusal of the contents of those documents, it appears that, the petitioners are the legal heirs 28 MVC.No.4875/2012 SCCH-18 and dependents of deceased. Considering the above facts and also on perusal of evidence of Pw-1 coupled with contents of those documents and for the above reason, I am of the opinion that, the petitioners have proved this issue by producing oral and documentary evidence. Accordingly, I answer this issue is in the affirmative.
39. Issue No.4: The specific contention of the petitioners is that, deceased Subramani was hale and healthy at the time of accident, aged about 35 years, working as a Fitter in Prabha Born to Build, Ishwariya Contractors, Tamilnadu and drawing salary of Rs.11,200/-p.m. Further the contention of the petitioners is that, due to unexpected death of Subramani, hey have suffered lot and also they have lost their bread earner. On the other hand, the respondents have disputed the age, occupation and income of deceased.
40. To prove the age of the deceased, the petitioners have relied upon the document at Ex.P.13 i.e. ID card issued by ESI in the name of deceased and in the said document, the date 29 MVC.No.4875/2012 SCCH-18 of birth of the deceased is shown as 09-07-1979. Looking to the above date of birth, it is clear that, as on the date of accident, the deceased was aged about 33 years. Hence, the proper multiplier applicable to the case on hand is 16.
41. Further to prove the occupation and income of the deceased, the petitioners have relied upon the document at Ex.P.8 i.e. salary certificate issued by Ishwariya Contractors. On perusal of Ex.P.8, it shows that, the Proprietor of Ishwariya Contractors has issued the said certificate contended that, the deceased Subramani was working as a Fitter in their firm and drawing salary of Rs.11,200/-p.m. On the other hand, the respondents have disputed the genuineness of the said document.
42. To prove the contents of above said document and also to prove the occupation and income of the deceased, the petitioners have examined the Manager of Prabha Engineers as PW-3, who has stated in his evidence that, he was working as a Manager in Prabha Engineers and the deceased Subramani was 30 MVC.No.4875/2012 SCCH-18 also working in Ishwariya Contractors and the said Contractors was supplying man power to Prabha Engineers and to that effect, there was an agreement between the Ishwariya Contractors and Prabha Engineers. Further he has stated that, the deceased Subramani was drawing salary of Rs.11,200/-p.m.
43. Thereafter the counsel for the respondent No.1 & 5 have cross-examined the PW-3 at length. In the cross- examination, dated 05-10-2013, the PW-3 has clearly admitted that:
"Since Aishwariya Contractors carried work under Prabha Engineers and deceased Subramani was working under Aishwariya Contractors, I was aware that payment was made to Subramani by Aishwariya Contractors."
"I have not produced any document to show that Aishwariya Contractors entered into agreement with Prabha Engineers."
"I have not produced any document to show that Prabha Engineers was paying amount directly to Aishwariya Contractors."31 MVC.No.4875/2012
SCCH-18 On perusal of the above evidence, it is clear that, the PW-3 has not produced any documents to show that, there was an agreement between the Ishwariya contractors and Prabha Engineers. Further on perusal of evidence of PW-3, it appears that, he has not issued the salary certificate and he is not the author of the said document. Considering the above facts, I am of the opinion that, the evidence of PW-3 regarding the income of deceased is not acceptable one.
On the other hand, Ex.P.4 i.e. copy of inquest panchanama, wherein the occupation of the deceased was shown as Worker in Prabha Engineers Company. Considering the above facts and looking to the contents of Inquest panchanama and in the absence of positive documents regarding the income, I am of the opinion that, if the income of the deceased is considered as Rs.7,000/-p.m. as the matter is for the year 2012, certainly it would meet the ends of justice.
44. Further as stated above that, as on the date of accident, the deceased was aged about 34 years. Hence, if view 32 MVC.No.4875/2012 SCCH-18 of the observation of the Hon'ble Apex Court in a recent citation reported in 2015 ACJ 1985 (Munna Lal Jain and another Vs. Vipin Kumar sharma and others), if 50% of the income is to be added towards the income of deceased as future prospectus, on such addition, the total income of the deceased comes to Rs.10,500/-p.m.
45. Further as stated above that, there are 6 dependents of the deceased and as such, if 1/4th of the total income of the deceased is to be deducted towards personal expenses of deceased, then the income of the deceased comes to Rs.7,875/-p.m. and the same is taken as Rs.7,900/-p.m., certainly it would meet the ends of justice.
46. Further the income of the deceased is considered as Rs.7,900/-p.m. and the multiplier 16 is applied, then the loss of dependency comes to Rs.15,16,800/- (Rs.7,900X12X16). Considering the above facts, I deem it just and reasonable to grant for compensation of Rs.15,17,000/- under the head of loss of dependency.
33 MVC.No.4875/2012
SCCH-18
47. Further the petitioner No.1 is the wife of deceased and as such, she is entitle for compensation of Rs.30,000/- under the head of loss of consortium.
48. Further the petitioners are entitle for compensation of Rs.90,000/-(i.e. Rs.15,000 each)under the head of loss of Love and Affection and also entitle for Compensation of Rs.60,000/-under the head of loss of estate.
49. Further the petitioners are entitle for compensation of Rs.25,000/- under the head of transportation of dead body, funeral and obsequies ceremony expenses.
Considering the above facts and circumstance of the case and for the above reason, I am of the opinion that, the petitioners are entitled for total compensation of Rs.17,22,000/-, under the following heads.
Compensation heads Compensation amount Towards loss of dependency Rs. 15,17,000/-
Towards loss of estate Rs. 60,000/-
Towards funeral & obsequies ceremony Rs. 25,000/-
expenses
Towards consortium Rs. 30,000/-
Towards loss of love and affection Rs. 90,000/-
Total Rs. 17,22,000/-
34 MVC.No.4875/2012
SCCH-18
50. LIABILITY: On perusal of the contents of petition and contents of objection statement, it appears that, the respondent No.1 & 2 are the owner and insurer of the alleged canter lorry bearing registration No.TN-24-K-1959. Further on perusal of Ex.R.3 i.e. copy of policy, it appears that, the policy was in force as on the date of accident. Further as stated above that, the accident has occurred mainly due to rash and negligent driving of the driver of the alleged canter lorry. Considering the above facts and for the above reason, I am of the opinion that, the respondent No.1 and 2 are jointly and severally liable to pay compensation of Rs.17,22,000/- with interest @ 9% P.A. from the date of petition till the date of deposit. However the respondent No.2 being the insurer of the canter is liable to pay the above compensation amount to the petitioners. Accordingly, I answer the issue No.4 in partly affirmative. 35 MVC.No.4875/2012
SCCH-18
51. ISSUE NO.5: In view of my discussion on issue No.1 to 4, I proceed to pass the following:
ORDER The Claim petition filed by the petitioners U/Sec.166 of M.V.Act is hereby partly allowed with cost as against the respondent no.1 and 2.
The petition as against the respondent No.3 to 5 are dismissed.
The petitioner are entitled for the compensation of Rs.17,22,000/- with interest at the rate of 9% p.a. from the date of petition till realization.
The respondents No.1 and 2 are jointly and severally liable to pay the compensation to the petitioners. However, the respondent No.2 insurance company shall deposit the same with interest within a month from the date of this order.
Out of the compensation amount, the petitioner No.1 is entitled for compensation amount of Rs.6,97,000/- the petitioner No.2 to 4 are entitled for compensation amount of Rs.2,75,000/- each, the petitioner No.5 & 6 are entitled for compensation amount of Rs.1,00,000/-each.
Out of the compensation amount awarded to the petitioner No.1, an amount of Rs.2,75,000/-shall be kept in 36 MVC.No.4875/2012 SCCH-18 FD in the name petitioner No.1, in any nationalized/schedule bank of her choice, for a period of 3 years and remaining amount with accrued interest shall be paid to her through account payee cheque after proper identification.
The entire compensation amount with accrued interest awarded to the petitioners' No.2 to 4 shall be kept in FD in their names represented by their natural guardian/mother in any nationalized/schedule bank of their choice, till they attains the age of majority. The petitioner No.1 is at liberty to draw periodical interest for the maintenance of petitioner No.2 to 4.
The entire compensation amount with accrued awarded to the petitioner No.5 & 6 shall be paid to them through account payee cheques after proper identification.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
(Dictated to the stenographer, transcribed by her, corrected, signed and then pronounced by me in open court on this 16th day of June 2016).
(VEERANNA SOMASEKHARA) III ADDL. SMALL CAUSES JUDGE & XXIX ACMM BENGALURU.37 MVC.No.4875/2012
SCCH-18 APPENDIX OF EVIDENCE List of witnesses examined for petitioner's side:
PW-1: Munirathna @ Munirathanamma PW-2: Veerabhadrappa PW-3: N. Jayaraj PW-4: Munikrishnappa PW-5: Krishnamurthy PW-6: .S. List of documents exhibited for petitioner's side:
Ex-P1 True copy of FIR with complaint Ex-P2 True copy of mahazar Ex-P3 True copy of IMV report Ex-P4 True copy of inquest Ex-P5 True copy of PM report Ex-P6 True copy of sketch Ex-P7 True copy of charge sheet Ex-P8 Salary certificate Ex-P9 Notarised copy of voter ID of petitioner No.1 [Compared
with original. The original voter ID is returned with a condition to produce the same whenever ordered.] Ex-P10 Notarised copy of voter ID of deceased [Compared with original. The original voter ID is returned with a condition to produce the same whenever ordered.] Ex-P11 Notarised copy of voter ID of petitioner No.6 [Compared with original. The original voter ID is returned with a condition to produce the same whenever ordered.] Ex-P12 Notarised copy of voter ID of petitioner No.5 [Compared with original. The original voter ID is returned with a condition to produce the same whenever ordered.] Ex-P13 ID card of deceased issued by ESI corporation Ex-P14 Study certificate of petitioner No.2 38 MVC.No.4875/2012 SCCH-18 Ex-P15 Study certificate of petitioner No.3 Ex-P16 Study certificate of petitioner No.4 Ex-P17 Quality policy issued by Chief executive of Prabha Engineers (Also given number as Ex-P-18) Ex-P19 Voter ID card Ex-P20 Authorization letter Ex-P21 Notarised copy of death certificate of deceased [Advocate for the respondent No.1 compared with original & consented for marking the same. Original is returned.] Ex-P22 Notarised copy of voter ID [Advocate for the respondent No.1 compared with original & consented for marking the same. Original is returned.] Ex-P23 Notarised copy of ration card Ex-P24 Notarised copy of tax paid receipt [Advocate for the respondent No.1 compared with original & consented for marking the same. Original is returned.] Ex-P25 Notarised copy of tax paid receipt [Advocate for the respondent No.1 compared with original & consented for marking the same. Original is returned.] Ex-P26 Notarised copy of electricity bill [Advocate for the respondent No.1 compared with original & consented for marking the same. Original is returned.] Ex-P27 Notarised copy of khata extract [Advocate for the respondent No.1 compared with original & consented for marking the same. Original is returned.] Ex-P28 Notarised copy of notice [Advocate for the respondent No.1 compared with original & consented for marking the same. Original is returned.] Ex-P29 Rental agreement Ex-P30 Notarized Copy of ID card Ex-P31 Notarized copy of Driving License Ex-P32 Notarized Copy of Election ID card 39 MVC.No.4875/2012 SCCH-18 List of witnesses examined for respondents' side:-
RW-1: R.S. Shivananda RW-2: Nagaraj RW-3: Shankar.A.C.
List of documents exhibited for respondents' side:
Ex.R.1 Authorization letter Ex.R.2 Copy of Elevated Lollway Limited Accident report Ex-R.3 Copy of Policy III ADDL.SMALL CAUSES JUDGE & XXIX ACMM.