Bangalore District Court
Smt.Ningamma vs Hanumantharayappa on 16 March, 2022
KABC020168862017
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS
TRIBUNAL, BENGALURU CITY
SCCH4
PRESENT: RAJU.M.., M.A., LL.B.,
Member, MACT
XVIII ADDL. JUDGE,
Court of Small Causes,
BENGALURU.
Dated this the 16th day of March2022
MVC No.7206/2017
PETITIONERS: 1. Smt.Ningamma,
W/o.Fakeerappa, Basayya,
Aged about 55 years,
2. Fakeerappa,
S/o. Late Basanna
Aged about 60 years,
3. Honnappa,
S/o.Fakeerappa,
Aged about 23 years,
4. Mallamma,
D/o.Fakeerappa,
Aged about 20 years,
SCCH4 2 MVC No.7206/2017
All are R/at Near Rajeshwari
Theatre, Rajagopalanagara,
Peenya 2nd Stage,
Bangalore - 58.
And also at Haripura Village
& Post, Sindanur Taluk,
Raichur District.
(By Sri.BMCS., Adv.,)
V/s
RESPONDENTS: 1.Hanumantharayappa,
S/o.Melagiriyappa,
No.65, Kaththirajanahalli,
Madhugiri, Tumkur.
(By Sri.MSY., Adv.,)
2. Shriram General Insurance
Co. Ltd., E8, RIICO
Industrial Area,
Sitapura, Jaipur,
Rajastan - 302022.
Policy No.
10003/31/16/662842
valid from 24.03.2016 to
23.03.2017.
(By Sri.KMR., Adv.,)
SCCH4 3 MVC No.7206/2017
JUDGMENT
The petitioners have filed this petition U/s 166 of the Motor vehicles Act claiming compensation for the death of Shivaputra @ Shivaputrappa, in a motor vehicle accident that occurred on 25.12.2016.
2. The case of the petitioner, in brief, is as follows:
On 25.12.2016 at about 9.00 a.m., the deceased Shivaputra@ Shivaputrappa was riding the Activa Scooter bearing Reg.No.KA02JJ3347 and his father was pillion rider ,while they were proceedings so to go to Modi Hospital, Peenya on the side of the road, near Sonal garments,all of a sudden driver of the Lorry bearing Reg.No.KA015047 which belonging to the 1 st respondent, driving in a rash and negligent manner and hit the motor cycle where in the deceased and his father were proceeding . Due, to the impact both fell down on the road and the wheel of the said Lorry was ran over the SCCH4 4 MVC No.7206/2017 head of the deceased. Due to the incident the deceased suffered severe head injury and died on the spot.
Immediately after the accident the deceased shifted to Sapthagiri Hospital, Bengaluru. Thereafter, postmortem was conducted and the body was handed over to the petitioner. The petitioners has spent huge amount towards funeral and obsequies.
The deceased was hale and healthy and was aged 25 years and was working as a team member in India Auto Parts Pvt. Ltd., Bengaluru and earning a sum of Rs.23,198/ per month and was contributing his entire income for welfare of his family. Due to sudden and untimely death of the deceased, the petitioners have lost love and affection. They were depending upon of the income of the deceased. The petitioners No.1 to 4 have lost love and affection and care taker.
SCCH4 5 MVC No.7206/2017 The respondent No.1 is the owner and respondent No.2 is the insurer of the offending vehicle, are jointly severally liable to pay the compensation to the petitioner.
Hence prays to award compensation of Rs.49,25,000/ with interest.
3. After service of notices the respondent No.1 and 2 have appeared through their advocates and filed their separate written statement.
The respondent No.1 has filed objection statement contending that, the cause of death was solely on accident caused due to sole rash and negligent driving of the driver of the above said offending vehicle. Further contended that, the driver of the owner of the lorry bearing Reg.No.KA015047 Ashoka Lyland the RC and FC standing in the name of this respondent. Further denied the, age, avocation and income of the deceased. The compensation claimed by the petitioners are highly SCCH4 6 MVC No.7206/2017 exaggerated, exorbitant and imaginary. Accordingly, respondent No.1 prays to dismiss the petition against him.
The respondent No.2 has filed objection statement, by admitting issuance of the policy in respect of the insured lorry bearing Reg.No.KA015047, the liability of this respondent is limited to the terms and conditions of the policy of insurance. Further contended that, the driver of the lorry has no valid and effective driving license at the time of the accident. The owner of the vehicle knowingly entrusted the vehicle to a person who has no valid and effective driving license to drive the vehicle in question, in violation of the policy conditions. Further contended that, the offending vehicle was used without having valid permit and fitness certificate. The accident was occurred only due to to the negligence of the deceased himself who was riding the motor cycle SCCH4 7 MVC No.7206/2017 recklessly. The compensation claimed by the petitioners are highly exaggerated, exorbitant and imaginary. Accordingly, respondent No.1 prays to dismiss the petition against him.
4. On the basis of the rival contentions, the following issues were framed by this court:
1. Whether the petitioners prove that, deceased Sri.Shivaputra @ Shivaputrappa was died in RTA arising out of accident alleged to have been taken place on 25.12.2016 at about 9.00 a.m., Near Modi Hospital, Peenya 2nd Stage, Bengaluru, due to the rash and negligent driving of driver of the lorry bearing Reg.No.KA 015047?
2. Whether the petitioners prove that they are legal heirs of deceased?
3. Whether the petitioners are entitled for the compensation? If so, what amount and from whom?
4. What order or award?
SCCH4 8 MVC No.7206/2017
5. In order to prove the claim petition, petitioner No.3 is examined as PW.1 and got marked the documents at Ex.P.1 to Ex.P.20. The General Manager HR at AT India Auto Parts Private Ltd., Toyota Tsusho Auto Park, Bidadi Industrial Area, Ramanagar Taluk and District is examined as PW.2 and got marked Ex.P.21 to Ex.P.26.
The respondent No.2 has examined its Legal Manger as RW.1 and got marked documents at Ex.R.1 to 4.
6. I have heard the arguments of learned counsel for both the parties and perused the material available on record.
7. My findings on the above issues are as under.
Issue No.1: In the affirmative,
Issue No.2 : In the affirmative.
Issue No.3: In the affirmative,
Issue No.4: As per the final orders
for the following.
SCCH4 9 MVC No.7206/2017
REASONS
ISSUE NO.1:
8. That by reiterating all the averments made in the petition, the petitioner No.3 has filed his affidavit in lieu of chief examination, which is considered as P.W.1. In support of his claim, he has produced certified copies of FIR, complaint, mahazar, sketch, MVA report, Inquest report, PM report, charge sheet and death certificate. These documents marked under Ex.P.1 to 9. As per these documents, Peenya Traffic Police have registered FIR against the driver of the lorry bearing Reg.No.KA01 5047 based on the statement given by the petitioner No.2 Fakeerappa, while he was taking treatment at Spthagiri hospital. After registering FIR the police have visited the place of the accident and drawn spot mahazaar as well as spot sketch which are marked under Ex.P.3 and 4. As per these documents the deceased has ridden his motor cycle on the left side of the road which SCCH4 10 MVC No.7206/2017 measures totally 15o feet and the accident is occurred at about distance of 5 feet from the left side of road margin. But the driver of the lorry bearing Reg.No.KA015047 came from right side of the motorcyclist and turned the lorry towards left side of the road and caused the accident. This fact goes to show that, the driver of the lorry drove the same on wrong side. The damages caused to the motor cycle as well as lorry are also noted in Ex.P.5 report. This document is not in dispute. Ex.P.6 is the police station case dairy where in inquest report is also noted. As per the Ex.P.7 P.m report the deceased Shivaputra died due to head injury, blunt and hard force impact in RTA. The death of Shivaputra is not in dispute. His death is not in dispute.
9. The jurisdictional police after completion of the investigation have filed charge sheet, as per Ex.P.8, against one Hanumantharoyappa, for punishable U/s SCCH4 11 MVC No.7206/2017 279, 304(A) and 338 of IPC R/w section 134(A), 187 and section 1988 under section 66(1), 56, 192 of IMV Act. In the charge sheet also it has been alleged that on 25.12.2016 at about 9.00 am., the accused being the driver of the lorry bearing Reg.No.KA015047 drove the same on 100 feet road, Peenya Industrial Area, from TVS cross road to FIT circle ,in a rash and negligent manner and dashed behind the motor cycle bearing Reg.No.KA 02JJ3347. Due to which, bike rider Shivaputra @ Shivaputrappa fell down, then the said lorry ran over the right shoulder of said Shivaputrappa and he died on the spot itself. Int the charge sheet it is also noted that, there was no FC and permit to the offending vehicle. Ex.P.9 is the death certificate of Shivaputrappa.
10. As against the evidence of the petitioner the Legal manager working in the office of respondent No.2 Insurance company is examined as RW.1. In the written SCCH4 12 MVC No.7206/2017 statement as well as examination in chief it is the defence of the respondent No.2 that, the insure lorry bearing Reg.No.KA015047 did not possess fitness certificate as on the date of the accident and thereby the respondent No.1 has violated the terms of insurance policy. Hence, the respondent No.2 is not liable to pay compensation. RW.1 has produced authorization letter issued to him to give evidence in this case at Ex.R.1. Ex.R2 is the copy of the insurance policy, Ex.R3 is the copy of deposition of one B.K.Gururaj in MVC No.44/2018 who is working as SDA in RTO office, Madhugiri. As per this document this witness has deposed that they have issued permit to the lorry bearing Reg.No.KA015047 from 12.05.2011 to 11.05.2016, again they issued permit from 12.01.2017 to 11.01.2022. The witness has also deposed that, on 25.12.2017FC was not in existence in the lorry bearing Reg.No.KA015047. As per the documents produced by the respondent No.2 it SCCH4 13 MVC No.7206/2017 shows that, the offending lorry did not possess fitness certificate as on the date of accident. This aspect will be answered at issue No.3. But the evidence of RW.1 is not relevant to decide the issue number 1.
11. The evidence of petitioners is not impeached on behalf of the respondents. In the absence of contra evidence the oral as well as documentary evidence of petitioners is to be accepted under law. Hence I come to the conclusion that Shivaputra @ Shivaputrappa died due to the accidental injuries sustained by him due to rash and negligent driving of the lorry bearing Reg.No.KA01 5047 belongings to respondent No.1. Accordingly, I answer issue No.1 in the affirmative.
ISSUE NO.2:
12. As held herein above, the petitioners have proved that Shivaputra @ Shivaputrappa died on 25.12.2016 due to the injuries sustained in RTA. The SCCH4 14 MVC No.7206/2017 said accident is caused by driver of the vehicle belonging to e respondent No.1.
13. As contended in the petition the petitioners No.1 to 4 are the mother, father, brother and sister of deceased Shivaputra @ Shivaputrappa. The petitioners to prove their relationship with deceased, have produced notarized copies of 4 Adhar cards which are marked at Ex.P.17 to 20 and Adhar card of deceased marked at Ex.P.13. During the course of evidence the original Adhar cards are compared with the notarized copies, found correct and returned the same to the petitioners. Sslc marks card and death certificate of the decesed are also produced at Ex.P.9 and 10 .These document supports the relationship stated in the petition. The petitioner No.3 and 4 are being the major brother and sister of deceased can't be considered as dependent of the deceased.
SCCH4 15 MVC No.7206/2017
14. In the claim petition, strict proof of relationship is not necessary like in civil suit. The respondent also not adduced contra evidence. Considering the documentary and oral evidence there are sufficient material to show that the petitioners No.1 to 4 being the mother, father, brother and sister are the dependents of deceased. Accordingly, I answer issue No.2 in the affirmative.
ISSUE No.3:
15. Now the quantum of compensation is to be decided. The accident took place on 25.12.2016. As per Ex.P.13 Aadhar card the date of birth of the deceased Shivaputra @ Shivaputrappa, is 01.08.1989, that means as on the date of the accident deceased was aged 28 years.
16. As stated in the petition deceased was working as a team member in India Auto Parts Pvt Ltd., Bengaluru and he was earning a sum of Rs.23,198/ per month.
SCCH4 16 MVC No.7206/2017 Further the petitioners have examined Sridhar.D.R, General MangerHR at India Auto Parts Private Ltd., Toyota Tsusho Auto Park, Bidadi Industrial Area, Bidadi, Ramanagar Taluk and District and he has produced authorization letter, notarized copy of the employee ID card, appointment letter, salary breakup, salary slip January2016 to December2016 and bank statement which are marked at Ex.P.21 to 22. The petitioners have produced SSLC marks card, marks card for apprentice issued by department of employment and training,PAN card, appointment letter issued by all India auto parts private limited, salary certificate. All these documents are at Ex.P.10 to 16. As per the documents the decesed was appointed by India Auto Parts Private Limited on monthly salary of Rs.14,823/ with effect from 19.09.2016. As on the date of death of deceased his salary was Rs. 21,874/, the professional tax is Rs.200/ deducted and SCCH4 17 MVC No.7206/2017 remaining Rs.21,674/ income of the deceased, then his annual incomes will be Rs.2,60,088/(21,674/ X 12).
As per Sarala varma case the proper multiplier applicable to the age of deceased is 17. The future loss of income is Rs.44,21,496/. Since the deceased was bachelor 50% is to be deducted towards his personal expenses, then the total loss of dependency would be Rs.22,10,748/ (Rs.21,674/ X 12 X 17= Rs.44,21,496/ minus 50% = Rs.22,10,748/).
17. In Civil Special leave petition (Civil No.25590/2014 dated 31.10.2016 (National Insurance Company Ltd., Vs. Pranay Sethi & others), the Hon'ble Supreme Court has held that "While determining the income, in case the deceased was selfemployed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased SCCH4 18 MVC No.7206/2017 was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.."
18. In another reported decision in Civil Appeal Nos.1920 of 2021 in between Kirti and Another , V/s Oriental Insurance Company Ltd., as follows;
"When it comes to the second category of cases, relating to notional income for nonearning victims, it is my opinion that the above principle applies with equal vigor, particularly with respect to homemakers. Once notional income is determined, the effects of inflation would equally apply. Further, no one would SCCH4 19 MVC No.7206/2017 ever say that the improvements in skills that come with experience do not take place in the domain of work within the household. It is worth nothing that, although not extensively discussed, this Court has been granting future prospects even in cases pertaining to notional income, as has been highlighted by my learned brother, Surya Kant, J., in his opinion (Hem Raj V. Oriental Insurance Company Limited, (2018) 15 SCC 654: Sunita Tokas V. New India Insurance Company Ltd., (2019) 20 SCC 688)".
19. As per the above decisions 40% out of loss of dependency has to be granted towards future prospects which would Rs.8,84,299/.
20. The petitioners No.1 and 2 are the mother and father of deceased. Hence I inclined to award a sum of Rs.40,000/ towards loss of consortium to the SCCH4 20 MVC No.7206/2017 petitioners, Rs.25,000/ towards loss of love and affection. Further, I inclined to award compensation of Rs.15,000/ towards funeral expenses and Rs.5,000/ towards transportation of dead body.
21. The petitioners are entitled for compensation under the following heads:
1. Loss of dependency Rs. 22,10,748/
2. Loss of future prospects Rs. 8,84,299/
3. Loss of consortium Rs. 40,000/
4. Loss of love and affection Rs. 25,000/
5. Funeral expenses Rs. 15,000/
6. Transport of dead body Rs. 5,000/ Total Rs. 31,80,047/
22. In this case, the respondent No.1 and 2 are the owner and insurer of the offending vehicle. The respondent No.2 in its objection statement admitted coverage of the insurance to the lorry bearing Reg.No.KA 015047 and true copy of insurance is also produced at SCCH4 21 MVC No.7206/2017 Ex.R.2. as held herein above the offending lorry had no fitness certificate as on the date of accident. Hence, the respondent No.1 and 2 are jointly and severally liable to pay the compensation to the petitioner and the respondent No.2 insurance company shall indemnify the compensation on behalf of the respondent No.1.
23. This court, in earlier cases, was awarded the compensation along with the interest at the rate of 12% p.a, by relying th earlier judgment of the Hon'ble supreme court. But in the recent judgment, in civil appeal No.6902/2021, in the case of Kurvan Ansari @ Kurvan V/s Shyam Kishore Murmu, the Hon'ble supreme court was pleased to award interest at the rate of 6% p.a., I answer Issue No.3 partly in the affirmative.
ISSUE NO.4:
24. For the foregoing reasons, I proceed to pass the following:
SCCH4 22 MVC No.7206/2017
ORDER
The petition filed by the petitioners U/s 166 of the Motor Vehicles Act is hereby partly allowed with cost.
The petitioner No.1 to 4 are entitled for total compensation amount of Rs.31,80,047/ with interest at the rate of 6% p.a., from the date of petition till the realization from respondents.
The respondent No.2 is directed to deposit the compensation amount within 30 days from the date of this order.
The petitioners No.1 to 4 are entitled for the compensation at the ratio of 40:40:10:10.
Out of total compensation awarded to the Petitioner No.1 and 2, 50% of shall released in their favour through Epayment on their proper identification and remaining 50% shall be kept in Fixed Deposit in any Scheduled Bank, for a period of three years, in their names.
Considering the quantum of amount awarded to petitioner No.3 and 4, it is ordered to release entire amount in their favour.
SCCH4 23 MVC No.7206/2017 Advocate fee is fixed at 1,500/.
Draw the award accordingly.
(Dictated to the Stenographer, transcribed by her, the transcript corrected and then pronounced by me in the open court on this the 16th day of March2022) (RAJU.M) XVIII ADDL.JUDGE Court of Small Causes & MACT., Bengaluru.
ANNEXURE List of witnesses examined for petitioners:
PW1 Honnappa PW2 Sri.Sridhar.D.R
List of documents marked on behalf of the petitioners:
Ex.P1 FIR Ex.P2 Complaint Ex.P3 Spot Mahazar Ex.P4 Sketch Ex.P5 MVA report Ex.P6 Inquest report Ex.P7 P.M report Ex.P8 Charge sheet Ex.P9 Death certificate Ex.P10 SSLC marks card Ex.P11 Provisional marks card SCCH4 24 MVC No.7206/2017 Ex.P12 Marks card for apprenticeship Ex.P13 Aadhar card Ex.P.14 PAN card Ex.P.15 Appointment letter Ex.P.16 Salary certificate Ex.P.17 Notarized copies of Aadhar cards to 20 Ex.P21 Authorization letter Ex.P22 Employee ID card Ex.P23 Appointment letter Ex.P24 Salary breakup Ex.P25 Salary slip January2016 to December2016 Ex.P26 Bank Statement
List of witness examined for the Respondents:
RW.1 Sri.G.L.Santosh Kumar List of documents marked on behalf of Respondents:
Ex.R1 Authorization letter
Ex.R2 Insurance Policy
Ex.R3 True copy of deposition in MVC No.44/2018
Ex.R4 True copy of permit of vehicle No.KA01
5047
XVIII ADDL.JUDGE
Court of Small Causes & MACT.,
Bengaluru.