Bangalore District Court
Vishwanath vs Star Logistics on 12 January, 2024
KABC020282752021
BEFORE THE CHIEF JUDGE, COURT OF SMALL CAUSES &
MEMBER PRL.MOTOR ACCIDENT CLAIMS TRIBUNAL AT
BENGALURU (S.C.C.H. - 1)
Dated this the 12th day of January, 2024
PRESENT : Smt. B.V. RENUKA, B.Sc., L.L.B.,
Chief Judge, Court of Small Causes &
MEMBER, PRL. M.A.C.T.,Bengaluru.
M.V.C. No. 4869/2021
PETITIONER: 1. Sri. Vishwanath,
S/o Late Shivalingaiah,
Aged about 64 years,
2. Smt. Kathyayini,
W/o Vishwanath,
Aged about 55 years,
Both are residing at:
No.650, 6th Cross, A.K.Colony,
Kotanayakanahalli,
Tiptur (Rural),
Tumkur District - 572 201.
(Represented by Sri M.R.Kumara Swamy,
Advocate)
-Vs-
RESPONDENTS:1. The Managing Partner,
Star Logistics, No.10, 2nd Main Road,
Yadavagiri, Mysore - 570 020.
Owner of Eicher Lorry bearing
reg.No.KA-09-B-4857)
(Exparte)
2. Reliance General Insurance Co.Ltd.,
2 MVC No.4869 of 2021
West Wubg Centenary Building,
M.G.Road, Bengaluru -560 001.
(Insurer of the Eicher Lorry bearing
Reg.No.KA-09-B-4851)
(Policy No.140322123340006026
Valid from 23.07.2021 to 12.07.2022)
(Represented by Sri Gururaj Salur,
Advocate)
********
JUDGMENT
This claim petition is filed by the petitioners under Section 166 of the Motor Vehicles Act, 1989 claiming compensation of Rs.50,00,000/- along with interest from the respondents on account of death of one Chidananda T.V., who is the son of the petitioners in a road traffic accident.
2. Briefly stated the case of the petitioner is as follows:-
That on 01.09.2021 at about 8.20 a.m., while the deceased was riding his motor cycle bearing registration No.KA-50-Q-5605 and when he reached Dabaspete-Doddaballapura NH-207 Road, Makankuppe gate, Thyamagondalu Hobli, Bengaluru, at that time the driver of Eicher Lorry bearing registration No.KA-09-B-4851 came with high speed in a rash and negligent manner and dashed against the motor cycle of the petitioner. Due to the impact, the deceased fell down and sustained grievous injuries and died at the spot. A case was registered 3 MVC No.4869 of 2021 against the driver of the Eicher Lorry bearing registration No.KA-09-B- 4851 in Crime No.0063/2021 of Thymagondlu police station. Hence, this petition for compensation.
3. In response to the notice, respondent No.2 appeared through its Counsel and filed written statement. The respondent No.1 remained absent and hence, he was placed exparte.
The respondent No.2 has denied the entire petition averments as false. The issuance of policy in respect of Eicher Lorry bearing registration No.KA-09-B-4851 is admitted,but the liability if any of this respondent is limited to the terms and conditions of the policy of insurance issued which is in accordance with the provisions of Motor Vehicle act. The respondent No.1 has not complied with the mandatory requirements of Section 134(c) of M.V.Act and the Police have not complied the mandatory requirements of Section 158(6) of M.V.Act. The driver of Eicher Lorry bearing registration No.KA-09-B-4851 was not holding valid and effective driving licence at the time of accident. The owner of the said vehicle had allowed the person who was not having driving licence to drive the vehicle on the date of accident. The vehicle was plying without valid permit and fitness certificate. As such, the respondent No.1 has violated the terms and conditions of the policy and hence, the second respondent is not obligated to indemnify 4 MVC No.4869 of 2021 the insured. In the alleged accident, there is no negligence on the part of the driver of the Eicher lorry bearing Reg. No.KA-09-B-4851 since the lorry was moving in extreme left side of the road by following all traffic rules, but it is the rider of the motorcycle who rode the same in high speed, rash and negligent manner and dashed against the lorry. The deceased sustained injuries and died because of his rash and negligent riding of motor cycle without wearing headgear and it is violation of Motor Vehicles Act and hence, the claim petition is not maintainable and it is liable to be dismissed. It is learnt from the police records that the deceased was married with one Smt.Sowmya @ Hemavathi, but the petitioners have not made her as a party to the proceedings. The amount of compensation claimed is highly excessive, exaggerated, arbitrary and speculative. Hence, prays to dismiss the petition with costs.
4. On the basis of the above pleadings, this Court has framed the following issues:
1. Whether the Petitioners prove that, on 01.09.2021 at about 08.20 a.m., at Dabaspete-Doddaballapura NH- 207 Road, Makankuppe gate, Thyamagondalu, the death caused to one Chidananda T.V., was due to actionable negligence act on the part of the driver of the Eicher Lorry bearing Reg.No.KA-09-B-4851 as alleged ?
2. Whether the petitioners are entitled to compensation ?
If so, how much and from whom ?
5 MVC No.4869 of 2021
5. The first petitioner is examined as PW-1 and one witness is examined as PW.2 and got marked documents at Exs.P.1 to P.36. The respondents have not chosen to adduce any oral or documentary evidence on their behalf.
6. Heard the arguments on both sides.
7. My findings on the above issues are as under :
Issue No.1 ... In the Affirmative, Issue No.2 ... Partly in the affirmative, holding that the Petitioners are entitled for compensation of Rs.52,81,960/- from the respondents No.1 & 2.
Issue No.3 ... As per final order, for the following:-
REASONS
8. Issue No.1: The petitioners in order to prove this issue, are relying upon the evidence of PW.1 and documentary evidence such as FIR with complaint, spot panchanama, IMV Report, PM Report and chargesheet as per Exs.P.1 to P.5. PW.1 being the father of deceased Chidananda T.V., has deposed in his evidence about the manner in which his son met with an accident and accident was due to the rash and negligent act on the part of the driver of the Eicher Lorry bearing registration No.KA-09-B-4851. The first respondent being the owner of the offending vehicle has remained exparte. The second respondent being the insurer has denied the accident and also the negligence 6 MVC No.4869 of 2021 aspect by contending that there is no negligence on the part of the driver of the Eicher Lorry bearing registration No.KA-09-B-4851 in occurring of the accident, but the accident took place due to the negligence of the deceased in riding the motorcycle with high speed and in a rash and negligent manner.
9. Admittedly, PW.1 has not seen the accident. PW.1 has deposed that one Niranjan who is the complainant, has not seen the accident. As such, the documentary evidence placed by PW.1 has to be taken into consideration. Ex.P.1-FIR with complaint discloses that on the basis of the complaint lodged by one Niranjan, a criminal case was registered against the driver of the Eicher Lorry bearing registration No.KA-09-B-4851 on the date of accident itself. As per PW.1, when his son was riding his motorcycle bearing registration No.KA-50-Q-5605 on 01.09.2021 at about 8.20 a.m. at Dabaspet- Doddaballapura NH-207 road, Makankuppe Gate, Thyamagondalu Hobli, Bengaluru, at that time Eicher Lorry bearing registration No.KA- 09-B-4851 being driven by its driver in a rash and negligent manner came and dashed against the motorcycle of his son and as a result, his son died on the spot by sustaining grievous injuries. Even in the complaint annexed to FIR, the said facts are mentioned. In the complaint, it is mentioned that the lorry has hit the front portion of the 7 MVC No.4869 of 2021 motorcycle of the deceased and as such, the motorcycle has been completely damaged.
10. Ex.P.2 is the spot mahazar which reveals the state of affairs at the accident spot. As per Ex.P.2, the place of accident is near Makankuppe gate of Dabaspet-Doddaballapura road, i.e., NH-207 road. The width of NH-207 is about 20ft., and it runs east to west and the place of accident is at the northern side edge of the road. The petitioners have not produced the sketch of the accident spot. Though the second respondent in its written statement has contended that the spot sketch prepared by the police clearly shows the negligence of the deceased, but it has not chosen to produce the said sketch before the court. Such being the case, only the spot mahazar has to be taken into consideration. PW.1 admits that Dabaspet-Doddaballapura road is a National Highway. PW.1 has denied that on the date of accident, the lorry was coming on the left side, but his son was riding the motorcycle on the wrong side of the road. In order to consider this suggestion, the spot sketch is not placed before the court by the second respondent. Except the denial of the suggestions by PW.1, nothing worth is elicited from his mouth to disbelieve the occurring of the accident due to the rash and negligent act on the part of the driver of the Eicher Lorry bearing registration No.KA-09-B-4851.
8 MVC No.4869 of 2021
11. Ex.P.3 is the IMV Report wherein the damages caused to both the vehicles involved in the accident are shown. In Ex.P.3, it is mentioned that front bumper right side and right side head light and indicator of the lorry were damaged, whereas front mudguard, front fork, head light assembly, handle bar, crash guard, fuel tank show shield, seat, rear tail lamp and all four indicators of the motorcycle of the deceased were damaged on account of accident. Even in the spot mahazar-Ex.P.2, the damages caused to both the vehicles are mentioned. From Exs.P.2 & P.3, it can be safely held that as the front portion of the lorry in question has hit the motorcycle of the deceased, the damages mentioned in Exs.P.2 & P.3 were caused to the said vehicles. Hence, from Exs.P.2 & P.3, it can be safely held that accident has occurred due to the rash and negligent act on the part of the driver of the Eicher Lorry bearing registration No.KA-09-B-4851 and not due to the negligence of the deceased as contended by the second respondent.
12. PM Report-Ex.P.4 discloses that the death of the deceased was due to the cardio respiratory arrest as a result of shock and hemorrhage due to multiple injuries sustained as a result of RTA. Chargesheet-Ex.P.5 discloses that the police after detailed investigation, have filed the chargesheet against the driver of the 9 MVC No.4869 of 2021 Eicher Lorry bearing registration No.KA-09-B-4851. But the said chargesheet has not been challenged by the said driver. This conduct of the driver of the lorry in question itself is sufficient to draw an adverse inference against him that as the accident took place due to his negligent act, he has remained silent. The second respondent except denying the case of the petitioners, has not put forth any cogent evidence to rebut the evidence placed by the petitioners. Even the second respondent has not chosen to summon the driver of the Eicher Lorry bearing registration No.KA-09-B-4851 to prove its contention. Such being the case, by considering all these aspects, I am of the opinion that the petitioners by producing satisfactory evidence have proved that the deceased met with an accident resulting in his death due to the rash and negligent act on the part of the driver of the Eicher Lorry bearing registration No.KA-09-B-485. Accordingly, I answer Issue No.1 in the Affirmative.
13. Issue No.2 : The petitioners claim that they are the parents of the deceased Chidananda. T.V. In order to prove the same, PW.1 has produced the Aadhaar cards of the petitioners and the deceased as per Exs.P.6 to P.8. These documents disclose that the petitioners are the parents and legal heirs of the deceased Chidananda.T.V. 10 MVC No.4869 of 2021
14. The second respondent in the written statement has contended that as per the police records, the deceased was married with one Smt.Sowmya @ Hemavathi, but the petitioners have not made her as a party to the proceedings and hence, the claim is liable to be dismissed for non-joinder of necessary parties, such as the wife of the deceased. In this regard, PW.1 was also cross-examined by the second respondent's counsel. PW.1 in his cross-examination has deposed that earlier to accident, i.e., in the year 2020, there was divorce between the deceased and his wife Smt.Sowmya and as such, there is no question of making her as a party in this petition. In this regard, PW.1 has produced the certified copy of the order sheet, petition, decree and memorandum of agreement in MC No.19/2020 as per Exs.P.33 to P.36. These documents disclose that earlier to the accident itself, divorce has taken place between the deceased and Smt.Sowmya @ Hemavathi. In view of the application filed by the second respondent's counsel, notice was issued to the said Smt.Sowmya @ Hemavathi and she has appeared before the court and submitted that she is not interested to prosecute this case. In view of the submission of Smt.Sowmya @ Hemavathi, the application filed by the second respondent came to be dismissed. Hence, in view of divorce between the deceased and his earlier wife Smt.Sowmya @ 11 MVC No.4869 of 2021 Hemavathi, I am of the opinion that she is not a necessary party to the proceedings and she is not the legal heir of the deceased.
15. PW.1 in his cross-examination has admitted that his second son Lokesh is working in Toyota Kirloskar Company Ltd., and his third son is working in a private company. As per the versions of PW.1, the petitioners are residing along with their sons. It appears that as the sons of the petitioners are majors and as they are working in private companies, the said sons were not made as parties in the petition. When the sons of the petitioners are working by having their own income, I am of the opinion that they are not the dependents on the income of the deceased. Hence, by considering all these aspects, I am of the opinion that at present, only the petitioners are the dependents on the income of the deceased.
16. PW.1 has deposed that his son was working as a member at INDO-MIM Private Ltd., and he was earning Rs.45,000/- per month and he was contributing his income to the maintenance of the family. In support of his version, PW.1 has produced Offer Letter and Confirmation Letter issued by the Company, Salary slip as per Exs.P.11 to P.13. PW.1 has also produced the SSLC marks Card, Diploma Marks Card of the deceased and the certificates for having undergone training under National Apprenticeship Training Scheme by the 12 MVC No.4869 of 2021 deceased as per Exs.P.14 to P.21. These documents disclose that the deceased had completed Diploma in Mechanical Engineering and he has undergone Apprenticeship and also training.
17. The petitioners in order to prove the avocation and income of the deceased, have examined HR Group Manager of INDO-MIM Tech Private Limited as PW.2. PW.2 has deposed that the deceased was an employee in his Company and the deceased was getting total gross salary of Rs.4,14,228/- per annum. In support of his evidence, he has produced the Offer Letter and Confirmation Letter of the deceased, salary slips, attendance extract and Form-16 for the Assessment year 2020-21, as per Exs.P.28 to P.32. The competency of PW.2 in giving evidence was questioned by the second respondent's counsel by making suggestions to him. All the suggestions were denied by PW.2. As per PW.2, the salary of the workers will be looked after by him. Such being the case, PW.2 is competent person to speak about the avocation and income of the deceased.
18. The Offer & Confirmation Letters issued by the Company to the deceased clearly establish that the deceased was working as an employee in INDO-MIM Tech Pvt.Ltd. Ex.P.30 (1 to 4) are the salary slips of the deceased for the months of May 2013, August 2021, July 2021 and June 2021. In the Certificate at Ex.P.13 produced by PW.1, it 13 MVC No.4869 of 2021 is mentioned that the deceased was working as a Member at Machine Shop department from 21.05.2012 and his salary details are given as Rs.4,14,228/- per annum. The deceased met with an accident on 01.09.2021. As such, the salary slips at Ex.P.30 (2 to 4) have to be taken into consideration to ascertain the income of the deceased earlier to his death. These salary slips disclose that the deceased was drawing salary of Rs.28,439/-, Rs.28,959/- and Rs.32,433/- in the months of June, July and August 2021. In these documents, the net salary of the deceased is shown by deducting the gross deductions.
19. PW.1 has pleaded ignorance that the salary was paid to the bank account of the deceased, but he has stated that he can produce the bank statement or the bank pass book in this regard. But, PW.1 has not produced either the passbook or the bank statement of the deceased. However, from the evidence of PW.2 and also from the documents produced before the court, it can be safely held that the deceased was an employee in INDO-MIM Tech Pvt.Ltd., earlier to accident. PW.2 has admitted that for the months of June, July and August 2021, the basic pay of the deceased was Rs.11,773/-. Apart from the basic pay, HRA and other allowances are shown in the salary slips. PW.2 admits that in the gross salary of the deceased, four special allowances are included in Ex.P.30. He also admits that performance 14 MVC No.4869 of 2021 linked bonus is also added to gross salary. On perusal of the salary slips, it is noticed that there is some variations in the gross salary of the deceased for the months of June, July and August 2021 because of performance linked bonus and shift allowance.
20. Ex.P.31 is the attendance extract of the deceased which also discloses that he was an employee in INDO-MIM Tech Pvt.Ltd. Ex.P.32 is the Form-16 for the assessment year 2021-2022. In Ex.P.32, the gross salary of the deceased is shown as Rs.3,79,940/- per annum. Hence, by considering all the documents produced by PWs 1 and 2 before the court, the average salary of the deceased is taken at Rs.29,000/- per month. It is pertinent to note that from the gross salary, only the deduction pertaining to professional tax has to be deducted to consider the income of the deceased. After deducting Rs.200/- from Rs.29,000/-, it comes to Rs.28,800/- per month.
21. PW.1 has deposed that his son was aged about 32 years as on the date of accident. In order to prove the same, he has produced Aadhaar Card and DL of the deceased as per Exs.P.8 and P.9. In these documents, the date of birth of the deceased is shown as 28.03.1989. By considering this date of birth of the deceased, it can be said that the deceased was aged about 32 years as on the date of accident. PW1 has deposed that his son had a permanent job. As such, as per 15 MVC No.4869 of 2021 the principles laid down by the Hon'ble Apex Court reported in 2017 ACJ 2700 (National Insurance Company Ltd., Vs. Pranay Sethi and others), 40% of the income of the deceased has to be taken as future prospects. 40% of the present income of Rs.28,800/- is Rs.11,520/-. If the same is added to his personal income, it comes to Rs.40,320/-.
22. As per Sarla Verma's Case reported in 2009 ACJ 1298, 1/3rd of the income of the deceased requires to be deducted towards the personal expenses of the deceased. 1/3 rd of Rs.40,320/- would be Rs.13,440/-. After deducting the same from Rs.40,320/-, the balance comes to Rs.26,880/-. The annual income of the deceased works out to Rs.3,22,560/-. As I have already discussed above, as on the date of accident deceased was aged about 32 years. As per the decision reported in 2009 ACJ 1298 (Sarala Verma Vs. Delhi Transport Corporation) the multiplier applicable to the present case is 16. If we multiply the annual income of the deceased by 16 multiplier, the same works out to Rs.51,60,960/-. Hence, the petitioners are entitled to Rs.51,60,960/- towards loss of notional income and this amount would be awarded to the petitioners under the head Loss of Dependency.
16 MVC No.4869 of 2021
23. As per the ratio laid down by the Hon'ble Apex Court in 2017 ACJ 2700 (National Insurance Company Ltd., Vs. Praney Sethi and others) under the conventional heads, the petitioners are awarded Rs.16,500/- towards loss of estate and Rs.16,500/- towards funeral expenses.
24. As per the ratio laid down in the decision reported in (2018)18 SCC 130 ( Magma General Insurance Co.Ltd., Vs. Nanu Ram Alias Chuhru Ram and Others) loss of filial consortium has to be awarded to the petitioners. Hence, I am of the opinion that the petitioners being the parents of the deceased are entitled for loss of filial consortium at Rs.44,000/- each and as such the petitioners are awarded Rs.88,000/- towards loss of filial consortium.
25. In view of the above said reasons, I am inclined to award compensation to the petitioners under the following heads:
Sl.No Heads of Calculation Amount/Rs
Compensation Rs.
i Monthly Income 28,800-00
Add: 40% future 11,520-00
prospects
Total 40,320-00
ii Deduction of 40,320-00
1/3rd of income 13,440-00
of the deceased 26,880-00
towards personal
expenses
17 MVC No.4869 of 2021
iii Annual income of 26,880x12
the petitioner 3,22,560/-
iv Compensation 3,22,560x16 51,60,960-00
after multiplier
applied
v Loss of estate 16,500-00
vi Funeral expenses 16,500-00
vii Loss of filial 88,000-00
consortium to
petitioners No.1
& 2 at
Rs.44,000/- each
Total 52,81,960.00
Thus, the petitioners are awarded compensation of
Rs.52,81,960/- with interest at the rate of 6% p.a from the date of the petition till realisation.
26. So far as the liability is concerned, according to the petitioners, first respondent is the owner and second respondent is the insurer of the Eicher Lorry bearing registration No.KA-09-B-4851. The first respondent has remained exparte. The second respondent being the insured has admitted the issuance of policy in respect of Eicher Lorry bearing registration No.KA-09-B-4851. The petitioners have produced copy of the policy which discloses that it was valid from 13.07.2021 to 12.07.2022. Accident occurred on 01.09.2021. Hence, it can be said that the policy was valid as on the date of accident. So, the respondents No.1 and 2 are jointly and severally liable to pay 18 MVC No.4869 of 2021 compensation of Rs.52,81,960/- to the petitioners along with interest at 6% p.a. from the date of the petition till realization. Accordingly, I answer Issue No.2 partly in the affirmative.
27. Issue No.3 : In view of my findings on issues No.1 and 2 and for the reasons stated therein, I proceed to pass the following: -
ORDER The claim petition filed by the petitioners is allowed in part with costs against the respondents No.1 and 2, awarding compensation of Rs.52,81,960/- (Rupees Fifty Two Lakhs Eighty One thousand Nine Hundred and Sixty only) with interest at 6% p.a., from the date of petition till the date of deposit in Court.
The respondents No.1 & 2 are jointly and severally liable to pay the compensation amount with interest to the petitioners. However, the respondent No.2, being the Insurance Company, is directed to deposit the compensation amount in Court within 3 months from the date of this order.
After deposit of the compensation amount, 50% with proportionate interest shall be deposited in the names of the petitioners No.1 & 2 in any of the nationalized or scheduled bank of their choice for a period of 3 years. Remaining 50% with proportionate interest is ordered to be released to the petitioners No.1 and 2. 19 MVC No.4869 of 2021
Advocate's fee is fixed at Rs.1,000/- .
Draw an Award accordingly.
(Dictated to the Stenographer Gr.I, transcribed by her, corrected, signed and then pronounced by me in the Open Court on this the 12th day of January, 2024.) (B.V.RENUKA) Chief Judge, Court of Small Causes & Member, Prl. M.A.C.T. Bangalore.
ANNEXURES Witnesses examined on behalf of the petitioners:
P.W.1 : Vishwanath P.W.2 : Santhosh G.P.
Documents marked on behalf of the petitioners:
Ex.P-1: Certified copy of FIR with complaint Ex.P-2: Certified copy of Spot Panchanama Ex.P-3: Certified copy of IMV report Ex.P-4: Certified copy of PM Report Ex.P-5: Certified copy of Chargesheet Exs.P-6 Notarized copies of Aadhaar Cards to P-8 :
Ex.P-9 : Notarized copy of DL of deceased
Ex.P-10 : Notarized copy of RC Book
Ex.P-11 : Offer Letter issued by INDO-MIM Tech
Pvt.Ltd.
Ex.P-12 : Confirmation Letter dated 21.05.2013
Ex.P-13 : Salary slip
Ex.P-14 : SSLC Marks Card
Exs.P-15 Notarized copies of Marks Cards of
to P-18 : Diploma in Mechanical Engineering
Exs.P-19 Notarized copies of Provisional National
& P-20 : Trade Certificates
20 MVC No.4869 of 2021
Ex.P-21 : Notarized copy of marks card issued by National Apprenticeship Exs.P-22 Notarized copies of Pan Cards to P-24 :
Ex.P-25 : Authorization Letter Ex.P-26 : Notarized copy of ID Card of witness Ex.P-27 : Details of the witness Ex.P-28 : Offer Letter of deceased Ex.P-29 : Confirmation Letter of deceased Ex.P-30 : Salary slips (4) Ex.P-31 : Attendance Extracts (3) Ex.P-32 : Form No.16 for the Assessment Year 2021-2022 Ex.P-33 : Certified copy of Order sheet in MC No.19/2020 Ex.P-34 : Certified copy of Petition in MC No.19/2020 Ex.P-35 : Certified copy of Decree in MC No.19/2020 Ex.P-36 : Certified copy of Memorandum of Agreement in MC No.19/2020 Witnesses examined on behalf of the respondents :
- NIL -
Documents marked on behalf of the respondents:
- NIL -
(B.V.RENUKA) Chief Judge, Court of Small Causes & Member, Prl. M.A.C.T. Bangalore