Bangalore District Court
Smt.Kempamma vs Nataraj Kumar B on 8 February, 2017
BEFORE THE MEMBER PRL.MOTOR ACCIDENT CLAIMS
TRIBUNAL AT BANGALORE
(S.C.C.H. - 1)
DATED THIS THE 8th DAY OF FEBRUARY'2017
PRESENT : SRI H.P.SANDESH, B.A.L., LL.B,
MEMBER, PRL. M.A.C.T.
M.V.C Nos. 3561/2014 and 3562/2014
Petitioners 1. Smt.Kempamma.,
(In M.V.C. W/o.late Doddegowda
No.3561/2014) Aged about 67 years,
2. Bharath Gowda,
S/o. late Nagaraj @ Nagaraj
B.Gowda, Aged about 17 years,
3. Sharath Gowda,
S/o. late Nagaraj @ Nagaraj
B.Gowda, Aged about 15 years,
Since petitioner No.2 and 3 are
minors, Rep by their grand
mother/Kempamma/
petitioner No.1.
All are R/at Machanayakanahalli
Village, Santhenahalli Post,
Bindiganavele Hobli,
Nagamangala Taluk,
Mandya District.
(By Sri C.C.Harish and Suma,
Advocates)
Petitioners 1.Smt.Kempamma.,
(In M.V.C. W/o.late Doddegowda
No.3562/2014) Aged about 67 years,
2. Bharath Gowda,
S/o. late Nagaraj @ Nagaraj
B.Gowda, Aged about 17 years,
2 MVC.3561/14 &3562/14
3. Sharath Gowda,
S/o. late Nagaraj @ Nagaraj
B.Gowda, Aged about 15 years,
Since petitioner No.2 and 3 are
minors, Rep by their grand
mother/Kempamma/
petitioner No.1.
All are R/at Machanayakanahalli
Village, Santhenahalli Post,
Bindiganavele Hobli,
Nagamangala Taluk,
Mandya District.
(By Sri C.C.Harish and Suma,
Advocates)
Respondents: 1. Nataraj Kumar B
(Common in both C/o.Vinayaka Transport
the cases) No.194. 2nd Cross,
Nataraj building,
Rajagopalanagar
Peenya 2nd Stage,
Bangalore-58.
(RC owner of car bearing No.KA-
02/MG-2886)
Since dead Reptd., by LRs
A) Manjula
W/o.Late.Nataraj Kumar.B.,
Aged Major
B) Pooja
D/o.Late.Nataraj Kumar.B.,
Aged Major
C) Parthana
D/o.Late.Nataraj Kumar.B.,
Aged Major
D) Punith Gowda
S/o.Late.Nataraj Kumar.B.,
3 MVC.3561/14 &3562/14
Aged Major
E) Hemalatha
D/o.Late.Nataraj Kumar.B.,
Aged Major
F)Preethi
D/o.Late.Nataraj Kumar.B.,
Aged Major
G)Prashantha
S/o.Late.Nataraj Kumar.B.,
Aged Major
All are R/at
No.194, 2nd Cross
Nataraj Building,
Rajagopalanagar,
Peenya II Stage, Bangalore-58.
H) Devendra Kumar
S/o.Bhojaraj
Aged Major
I)Jagadeesh Kumar
S/o.Bhojaraj
Aged Major
H and I both R/at No.70
JDN Complex
Near Maruthi Talkies
Rajagopalnagar, Bangalore-58
(By Sri N.R.Advocate)
2.Bajaj Allianz General Insurance
Co., Limited,
No.105-A to 107-A
No.136, 1st Floor, Cears Plaza
No.136, Residency Road,
Bangalore.
(Policy NO.OG-14-1701-1801-
00063464 )
Valid from 16.01.2014 to15.01.2015)
(By Sri R.S.S. Advocate)
4 MVC.3561/14 &3562/14
COMMON JUDGMENT
The petitioners have filed both these petitions under
Section 166 of the Motor Vehicles Act, 1988, claiming
compensation of Rs.30 lakhs each from the respondents,
on account of the death of one Nagaraju @ Nagaraju B.
Gowda, the son of petitioner No.1 and father of petitioners
No.2 and 3 in MVC 3561/2014 and Manjula, W/o.Late
Nagaraju @ Nagaraju B.Gowda, the daughter in law of
petitioner No.1 and mother of petitioner No.1 and 2, in
MVC No.3562/2014, in the accident, that occurred on
08.06.2014 at 07.00 pm., on B.M. (NH 75) Road at
Bookanabetta Gate, Hirisave Hobli, C.R.Patna Taluk,
Hassan District.
2. In response to the notice, the respondents No.1 & 2
appeared through their respective Counsel and respondent
No.2 has filed statement of objections.
3. The respondent No.2, in the statement of objections,
denied the issuance of policy and contended that on the
date of alleged accident, there was no contract of insurance
between the Insurer and the owner of the alleged vehicle
involved in the accident. The petitioners have also not
5 MVC.3561/14 &3562/14
furnished the details of the policy. However, without
prejudice to the above contentions, the respondent No.2
has denied the liability and seeks protection under Section
147 and 149 of MV Act. It is also contended that the 1st
respondent has not complied the Section 134 (c) of MV Act.
The police have not complied the mandatory provision as
per Section 158(6) of MV Act. Further denied the
negligence on the part of driver of the car and also denied
nature of injuries and the death of deceased persons.
Further, their age, avocation and income is not admitted
and the petitioners have to prove the same. The
respondent No.2 also contended that the claims made by
the petitioners in both the petitions are exorbitant. Hence,
the 2nd respondent prayed to dismiss both the petitions.
4. Thereafter, issues were framed. During the course
of the proceedings, the respondent No.1 was reported to be
dead and hence, his legal heirs were brought on record. In
spite of service of notice of petition, since the LRs., of the
respondent No.1 failed to appear and contest the case, they
were placed exparte. Pursuant thereto, on 15.10.2015, a
witness on behalf of the petitioners' was examined as PW 1
6 MVC.3561/14 &3562/14
and Exhibits P.1 to P.15 were marked. On the same date,
the Counsel for the petitioners filed a Memo seeking to
delete the respondent No.2, stating that the vehicle had no
insurance and hence, the respondent No.2 was ordered to
be deleted from the proceedings. The evidence of PW 1
remained unchallenged since LRs., of respondent No.1
remained exparte and the respondent No.2 was deleted
from the proceedings and therefore, after hearing the
Petitioners' Counsel, judgment and order came to be
passed on 20.10.2015, Awarding the compensation of
Rs.11,29,200/- in MVC No.3561/2014 and Rs.12,70,000/-
in MVC No.3562/2014 respectively.
5. Thereafter, the LRs., of the deceased respondent
No.1 filed Misc.No.2/2016 in MVC No.3561/2014 and
Misc.No.3/2016 in MVC No..3562/2014, both under Order
IX Rule 13 of the Code of Civil Procedure, 1908 seeking the
Court to set aside the judgment and award dated
20.10.2015 passed in those cases, contending that they
being uneducated and children being minors, had no
knowledge of the proceedings of the MVC Cases and they
have received the information about passing of the award
7 MVC.3561/14 &3562/14
and the Tribunal, after having considered the case put
forth before the Court, by its order dated 23.05.2016, set
aside the Common Judgment and Award dated 20.10.2015
in MVC No.3561/2014 and 3562/2014 and restored the
cases.
6. Pursuant thereto, on 30.05.2016 when the cases
were called, the petitioners' Counsel appeared and the
respondent's Counsel was absent and hence, the case was
posted to 06.06.2016 for filing the written statement and
on that day, since the written statement was not filed, the
matter was posted to 10.06.2016 for filing written
statement and on that day, since written statement was
not filed, the matter was posted for petitioner's evidence to
20.06.2016 and on that day, the counsel for the
petitioners' submitted that the petitioners have no further
evidence and therefore, having taken note of the fact that
the respondents No.1 has not filed written statement, the
matter was posted for arguments to 21.06.2016. On
21.06.2016, the Counsel for the petitioners filed an
interlocutory application under Order 1 Rule 10(2) CPC
seeking to implead M/s.Bajaj Allianz General Insurance
8 MVC.3561/14 &3562/14
Co., Ltd., as respondent No.2 and the said company, in
spite of service of notice of IA, remained absent and hence,
the matter was posted for hearing on IA and on
05.07.2016, after hearing on IA, order was passed on
11.07.2016, thereby M/s.Bajaj Allianz General Insurance
Co., Ltd., was ordered to be impleaded as respondent No.2
and subsequent thereto, the petition was amended
accordingly and thereafter, notice of the petition was
served on the respondent No.2, but M/s.Bajaj Allianz
General Insurance Co., Ltd., did not appear before the
Court and hence, was placed exparte. However, on
27.08.2016, an Advocate filed an IA under Order 9 Rule 7
CPC on behalf of M/s.Bajaj Allianz General Insurance Co.,
Ltd., the respondent No.2 to recall the order passed by this
Court placing the respondent No.2 exparte, which was
allowed. On 07.09.2016, the counsel for the petitioners
submitted that PW 1 has already been examined in chief
and hence, prayed to post the case for cross of PW 1 and
accordingly, on 23.09.2016, PW 1 was cross-examined. On
08.11.2016, the respondent No.3 was examined as RW 1
and through him, Exhibits R1 to R.5 are marked. On
9 MVC.3561/14 &3562/14
28.11.2016, the respondent No.2 has examined its witness
as RW 2 and on 18.12.2016, RW 2 was further examined
in chief and Exhibits R.1 to R.12 were marked and on
10.01.2017, RW 2 was cross-examined and on 01.02.2017,
another witness was examined on behalf of respondent
No.2 as RW 3 and Ex.R.13 was marked and he was cross-
examined on the same day.
7. It is relevant to state here that since the Judgment
and Award dated 20.10.2015 passed in the above two
cases has been set aside by order dated 23.05.2016 in
Misc.No.2/2016 and 3/2016, it is incumbent now for the
Tribunal to answer the issues once again, which are as
under:-
ISSUES
1. Whether the petitioners prove that the
deceased succumbed to injuries in a motor
vehicle accident that occurred on
08.06.2014 at about 07.00 pm., on
B.M.Road (NH 75) at Bookanabetta Gate,
Hirisave Hobli, C.R.Patna, within the
jurisdiction of Hirisave Police Station on
account of rash and negligent driving of car
bearing registration No.KA.02/MG.2886 by
its driver?
10 MVC.3561/14 &3562/14
2. Whether the petitioners are entitled for
compensation? If so, how much and from
whom?
3. What order?
8. After having heard the arguments and after having
perused the record of the case, the above issues are
answered as under:
Issue No.1 : In the affirmative,
Issue No.2 : Partly in the affirmative,
Issue No.3 : As per final order, for the following:-
REASONS
9. Issue No.1 in MVC.3561/14 &3562/14:- Since
both these claim petitions are arising out of the same
accident and issue No.1 in both the petitions is regarding
the negligence of the driver of the car, they are taken up
together for discussion.
10. It is the case of the petitioners in both the
petitions that the Nagaraj and Smt.Manjula were
proceeding in the motor cycle bearing No.KA.54/H-7187 on
8/6/2014 at 7.00 p.m., on B.M road, NH-75 and when
they reached at Bookanabetta Gate, Hirisave Hobli,
11 MVC.3561/14 &3562/14
Channarayapatna, within the jurisdiction of Hirisave police
station, at that time, a car bearing No.KA.02/MG-2886
driven by its driver came in a rash and negligent manner
and dashed against the motor cycle, due to the impact,
both of them fell down and sustained grievous injuries.
11. It is the contention of the petitioners that this
accident taken place due to the rash and negligence on the
part of the driver of the car. The petitioners have also relied
upon the documents FIR, spot mahazar, sketch and IMV
report as Exs.P.1 to P.4 and also charge sheet as Ex.P.9.
These documents are unchallenged. The evidence of PW-1
remained unchallenged. In the absence of any contra
evidence, this court has to accept the version of PW-1 and
documentary evidence, which are marked as Ex.P.1 to P.4
and charge sheet at Ex.P.9.
12. On perusal of sketch, which is marked as Ex.P.3
discloses that the motor cycle on which the deceased
persons were traveling, was on the extreme left side of the
road and at that time, a car which came and dashed
against the motor cycle and Ex.P.3 has not been disputed.
Ex.P.4-IMV report also discloses that the damages caused
12 MVC.3561/14 &3562/14
to both vehicles, in the accident. The IMV inspector has
opined that this accident was not due to any mechanical
defect. For having taken note of the documentary evidence
at Ex.P.3 and P.4 and also after investigation, the police
have also filed charge sheet against the driver of the car. I
have already pointed out that the evidence of PW-1, oral as
well as documentary evidence was not challenged by the
respondents. Hence, I accept the evidence of PW-1 in both
the petitions and issue No.1 in both the petitions are
answered in the affirmative.
13. Issue No.2 in MVC Nos.3561/14 & 3562/14:-
In both the petitions, the petitioners have examined PW-1-
Kempamma, who is none other than the mother and
mother-in-law respectively and the petitioners 2 and 3 are
the minor children of the deceased. Pw-1 has relied upon
the inquest and Post mortem report of the deceased
persons, Obituary card, ration card, Lab report, referral
Letter, medical bills worth Rs.7,560/-and 7 prescriptions
in respect of Smt.Manjula.
14. In a case of death, in order to arrive at the
compensation to be awarded to the petitioners, the age,
13 MVC.3561/14 &3562/14
avocation, income and the number of dependants, play
vital role.
15. In MVC No.3561/2014, the petitioners have
claimed that the deceased Nagaraj was running hotel
business and earning Rs.30,000/-p.m. The petitioners
have not placed any materials before this Tribunal.
16. The petitioners in MVC.3562/2014 have
contended that the deceased Manjula was doing Tailoring
work and earning Rs.8,000/-p.m. No documentary
evidence is placed before this Tribunal to show that she
was doing Tailoring working and earning Rs.8,000/-p.m.
17. There are no other documents to substantiate their
avocation. For having taken note of the age of both the
deceased, in respect of son of PW-1, petitioners have relied
upon PM report and ration card. The ration card is marked
as Ex.P.11, which discloses the age of the deceased
Nagaraj as 38 years and age of the deceased Smt.Manjula
is mentioned as 30 years. This ration card was issued on
07-11-2012. Hence, the age of the deceased Nagaraju
becomes 41 years and the deceased Smt.Manjula becomes
33 years.
14 MVC.3561/14 &3562/14
18. On perusal of Ex.P.6-P.M report, the age of the
deceased Nagaraj is mentioned as 45 years. In between the
age group of 41-45 years, the relevant multiplier applicable
to the case on hand in respect of Nagaraju is 14. In
respect of deceased Smt.Manjula', the P.M.report at Ex.P.8
discloses her age as 33 years and the relevant multiplier
applicable to the case on hand is 16.
19. Thus, for having taken note of the documentary
proof regarding the avocation, even if Nagaraj is taken as
coolie, he would have earned Rs.7,000/-p.m. and the same
has been taken into consideration.
20. In view of the principles laid down in the judgment
reported in 2013 ACJ 1403 (Rajesh Vs. Rajbir Singh), relied
upon by the Counsel for the petitioners, the Apex Court
held that even if a person is self employed, loss of future
prospects has to be taken into consideration and hence, as
the deceased was aged 45 years at the time of accident,
30%, from out of his income, has to be taken as loss of
future prospects, which works out to Rs.2,100/- and thus
the total works out to Rs.9,100/-.
15 MVC.3561/14 &3562/14
21. 1/3rd out of the total income of the deceased has
to be deducted towards the personal expenses of the
deceased, had he been alive. If that be so, the monthly loss
of dependency works out to Rs.9,100/- and annually, it
works out to Rs.1,09,200/-. The same has to be multiplied
by 14 multiplier, having regard to the age of the deceased
as 45 years and therefore, the total loss of dependency
works out to Rs.72,800/-, which is rounded off to
Rs.10,19,200/-, after deducting 1/3rd personal expenses.
22. Apart from that, the petitioners are also held to be
entitled to Rs.1,00,000/- under the head compensation to
the family members (children and family members other
than wife) for loss of love and affection, deprivation of
protection, social security etc., and Rs.10,000/- towards
cost incurred on account of funeral and ritual expenses,
post mortem and mortuary charges as held in the recent
judgment reported in AIR 2014 SUPREME COURT 706
(Puttamma Vs. Narayana Reddy).
23. Thus the petitioners in MVC No.3561/2014 are
entitled to compensation as under:-
16 MVC.3561/14 &3562/14
Sl.No. Heads of Compensation Amount of
Compensation
1. Loss of dependency 10,19,200.00
2. Compensation to the family 1,00,000.00
members (children and family
members other than wife) for
loss of love and affection,
deprivation of protection, social
security
3. Cost incurred on account of 10,000.00
funeral and ritual expenses,
Total 11,29,200.00
The petitioners in MVC.3461/2014 are entitled for
compensation of Rs.11,29,200.00
MVC:-3562/2014:
24. It is the claim of the petitioners that she was
doing Tailoring work and earning Rs.8,000/-p.m. I have
already point out that no documentary evidence is placed
before this Tribunal to show that she was doing Tailoring
job. In the absence of documentary evidence regarding
income of the deceased, I have taken her income as
Rs.6,000/-p.m., assuming that she is a coolie.
25. In view of the principles laid down in the
judgment reported in 2013 ACJ 1403 (Rajesh Vs. Rajbir
Singh), relied upon by the counsel for the petitioners, the
Apex Court held that even if a person is self employed, loss
of future prospects has to be taken into consideration and
17 MVC.3561/14 &3562/14
hence, as the deceased Manjula was aged 33 years at the
time of accident, 50% from out of her income, has to be
taken as loss of future prospects, which works out to
Rs.3000/- and thus the total works out to Rs.9000/- p.m.,
and annually works to Rs.1,08,000/-.
26. 1/3rd out of the total income of the deceased has
to be deducted towards the personal expenses of the
deceased, had she been alive, since she was married and
she is left behind by her children and mother-in-law. Her
family had 3 members including herself. If that be so, the
monthly loss of dependency works out annually to
Rs.72,000/-. The same has to be multiplied by 16
multiplier, having regard to the age of the deceased as 33
years and therefore, the total loss of dependency works out
to Rs.11,52,000/-.
27. Apart from that, the petitioners are also held to be
entitled to Rs.1,00,000/- under the head compensation to
the family members (children and family members other
than wife) for loss of love and affection, deprivation of
protection, social security etc., and Rs.10,000/- towards
cost incurred on account of funeral and ritual expenses,
18 MVC.3561/14 &3562/14
post mortem and mortuary charges as held in the recent
judgment reported in AIR 2014 SUPREME COURT 706
(Puttamma Vs. Narayana Reddy).
28. The petitioners have relied upon the medical bills
at Ex.P.14 to the tune of Rs.7,560/-(9 in nos) These bills
are issued Adichunchanagiri hospital Pharma .The records
also discloses that immediately, she was taken to
Adhichunchanagiri hospital and deceased Manjula
succumbed to the injuries sustained in the accident, even
after best treatment. Hence, I round up the medical bills
to the tune of Rs.7560/- to Rs.8,000/- which has been
incurred by the petitioners prior to the death of
Smt.Manjula.
29. Thus the petitioners are entitled to compensation as
under:-
Sl.No. Heads of Compensation Amount of
Compensation
1. Loss of dependency 11,52,000.00
2. Compensation to the family 1,00,000.00
members (children and family
members other than wife) for
loss of love and affection,
deprivation of protection, social
security
3. Cost incurred on account of 10,000.00
funeral and ritual expenses,
19 MVC.3561/14 &3562/14
mortuary charges and PM
charges,
4 Medical expenses during 8,000.00
treatment period
Total Rs.12,70,000.00
The petitioners in MVC.3562/2014 are entitled for
compensation of Rs.12,70,000.00
30. As discussed above, the petitioner No.1 is the
mother of deceased in MVC No.3561/2014 and mother in
law of deceased in MVC nO.3562/2014 and petitioners
No.2 and 3 are the minor children of the deceased in both
the cases. The compensation amount is apportioned
amongst them, in both the cases, in the follwing manner:-
Petitioner No.1 - Mother 20%
Petitioner No.2 - Son 40%
Petitioner No.3 - Daughter 40%
31. Regarding the liability is concerned, it is the case
of the petitioners which is reiterated by RW 1 Jagadish
Kumar that the respondent No.2 has issued an insurance
policy in favour of the respondent No.1 pertaining to car
No.KA.02/MG.2886 and the same was valid from
16.01.2014 to 15.01.2015 and the driver of the car was
holding a valid and effective driving licence and the vehicle
20 MVC.3561/14 &3562/14
was being used as per the terms of the policy and
therefore, the 2nd respondent is liable to pay the
compensation amount. RW 1, in his evidence, got marked
B Register Extract as Ex.R.1, Driving Licence Extract as
Ex.R.2, Endorsement issued by the RTO as Ex.R.3, Policy
Copy along with Card as Ex.R.5. RW 1 has been cross-
examined by the Counsel for the petitioners, wherein it is
elicited from him that the Insurance Policy was in force as
on the date of the accident.
32. RW 1 has been cross-examined by the counsel for
the respondent No.2. In his cross-examination, he admits
that Ex.R.8 cheque is issued by his brother Nataraj Kumar
in favour of Bajaj Allianz General Insurance Company and
it is Corporation Bank cheque. He says that he does not
know about dishonouring of cheque on the ground of
insufficient funds. He was confronted with Ex.R.9 and he
read over the same and he says that the same was written
with an endorsement "Insufficient Funds". He admits that
Pooja is his brother's daughter and Ex.R.11 Postal
Acknowledgement bears the signature of Pooja dated
04.02.2014 and Ex.R.10 is written to Nataraj Kumar
21 MVC.3561/14 &3562/14
regarding cancellation of policy. It is suggested to him that
the policy was cancelled on account of dishonour of cheque
and the said suggestion has been denied by him. He
admits that Ex.R.7, there is an endorsement that the above
mentioned policy is cancelled due to non receipt of
premium amount.
33. The case of the respondent No.2 is that based on
the cheque issued by the insured, policy was issued, but
due to dishonour of cheque for want of funds, the policy
was duly cancelled with intimation to both the insured and
the RTO and hence, as on the date of the accident, there
was valid insurance in respect of the vehicle in question.
In support of its contentions, the respondent No.2 has
examined two witnesses as RW 2 and 3.
34. The respondent No.2 has examined one
Mr.Krishna Sheernalli, who is working as Deputy Manager
in its office, as RW 2 and in his evidence, deposes that the
first respondent proposed the second respondent to cover
the risk of his vehicle bearing No.KA.02/MG.2886 for the
risk from 16.01.2014 to 15.01.2015 and towards the
premium payable for coverage of said risk, the first
22 MVC.3561/14 &3562/14
respondent had handed over a cheque bearing No.689115
dated 15.01.2014 drawn on Canara Bank, Bangalore for a
sum of Rs.16,280/- and it was made clear that "in the
event of dishonour of cheque, insurance cover provided
automatically stands cancelled from the inception
irrespective of whether separate communication is sent or
not" and in the policy schedule, it is clearly mentioned as
"the validity of the certificate of insurance cum schedule is
subject to realization of cheque" and when the respondent
No.2 deposited the cheque for encashment, it was returned
by its banker as "Funds Insuffient" vide memo dated
20.01.2014 and immediately upon receipt of intimation
pertaining to dishonour of cheque, Policy No.OG.14/1701
1801 00063464 is declared as void ab initio and
accordingly, the same was communicated to the first
respondent and concerned RTO Office vide letter dated
24.01.2014 and for these reasons, RW 2 claims that there
was no valid and effective contract of insurance between
the second respondent and the first respondent covering
the risk of vehicle No.KA.02/MG.2886 and hence, the
petition is liable to be rejected against it. Apart from his
23 MVC.3561/14 &3562/14
oral evidence, RW 2 has also got marked Ex.R.6 Policy
Copy, Ex.R.7 Endorsement, Ex.R.8 - bounced cheque,
Ex.R.9 Bank Memo, Ex.R.10 Office copy of letter addressed
to owner of the car, Ex.R.11 Postal acknowledgement and
Ex.R.12 office copy of the letter addressed to RTO.
35. RW 2 has been cross-examined by the counsel for
the petitioners, wherein, it is elicited from him that they
have issued notice to RTO and the copy of the same is
produced before the Court and he also says that they have
issued notice to the owner. It is suggested to him that no
cheque is bounced and in order to avoid liability, he is
giving false evidence and the said suggestion has been
denied by him.
36. RW 2 has also been cross-examined by the
counsel for the respondent No.1, wherein he admits that
Ex.R.6 was issued through Agent. He admits that
generally if cheque is given, the agent will issue only cover
note and not the policy and generally after the issuance of
cover note, the policy will be generated and the same will
be posted to the owner of the vehicle. It is suggested to
him that the policy does not contain the terms and
24 MVC.3561/14 &3562/14
conditions of the policy. He admits that in Ex.R.5, the
policy generation date is shown as 5.1.2015 and in Ex.R.5,
there is no endorsement for cancellation. He volunteers
that they have produced separate cancellation
endorsement ie., Ex.R.7.
37. The respondent No.2 has also examined one
Shyamsundar, Manager, Corporation Bank as RW 3 to
prove the fact of bouncing of cheque. In his evidence, RW3
says that he has produced the Statement of Account of
Vinayaka Transport owned by Nataraj Kumar which is
marked as Ex.R.13 and the cheque No.689115 is bounced
with an endorsement 'for want of funds' and they have
charged Rs.169/- for bouncing of cheque and as on the
date of bouncing of cheque, the balance in the account was
only Rs.420/- and the cheque was dishonoured on
20.01.2014.
38. In the cross-examination by the counsel for the
respondent No.1, RW 3 admits that Ex.R.4 is issued by
their bank and that vehicle NO.KA.02/MG.2886 is
hypothecated to their bank. He admits that they have not
25 MVC.3561/14 &3562/14
received any notice of cancellation of policy from Bajaj
Allianz Insurance Company.
39. In this case, there is no dispute regarding the fact
that the deceased Nataraj Kumar, being the owner of the
car No.KA.02/MG.2886, had issued cheque No.689115,
which is marked as Ex.R.8 towards the insurance
premium. Ex.R.9 Bank Advise shows that the said cheque
was dishonoured for "Insufficient Funds". Pursuant
thereto, the respondent No.2, as per Ex.R.10, issued notice
to the Insured intimating him of the dishonour of cheque
for insufficient funds, which was served to the daughter of
the insured as admitted by RW 1 himself. Apart from that,
the respondent No.2 has also sent letter to the RTO Office,
regarding dishonour of cheque for want of funds and
cancellation of policy.
40. The respondent No.1 relies upon Ex.R.5 and
thereby contends that there being a valid insurance policy
issued by the respondent No.2 in the name of his deceased
brother, the owner of the car, which is valid covering the
period of accident, the liability be fastened on the
respondent No.2. This contention of the respondent No.1
26 MVC.3561/14 &3562/14
cannot be accepted for the reason that on perusal of
Ex.R.5, which is the Insurance Policy, in the front page, at
the bottom in the premium details column, it is specifically
mentioned thus "If premium paid through cheque, the policy
is void ab initio in case of dishonour of cheque". Therefore,
the suggestion made to RW 2 that the policy does not
contain the terms and conditions of the policy, is denied by
him. Moreover, RW 1 admits in his cross-examination that
Pooja is the daughter of his brother Nataraj Kumar and
Ex.R.11 Postal Acknowledgement bears the signature of
Pooja with dated 04.02.2014 and he further categorically
admits that Ex.R.10 is written to Nataraj Kumar regarding
cancellation of policy.
41. Therefore, for the reasons discussed above, even
though the Policy was issued by the respondent No.2,
pursuant to the issue of cheque at Ex.R.8 by the insured,
on account of its dishonour by banker for insufficient
funds, in due diligence, the respondent No.2 after having
served notice to the insured and intimated to the RTO,
cancelled the policy. Therefore, as there was no policy
which was in force as on the date of accident, the
27 MVC.3561/14 &3562/14
respondent No.2 cannot be made liable to indemnify the
respondent No.1 and therefore, the LRs of the owner are
liable to pay compensation to the petitioners, in the
absence of contract of indemnifying. The LRs of the 1st
respondent are bound to pay compensation to the
petitioners. Accordingly, issue No.2 in MVC No.3561/2014
and 3562/2014 are answered.
42. Issue No.3: In the result I proceed to pass the
following: -
ORDER
The petitions MVC.3561/2014 and 3562/2014 are partly allowed with costs.
The petitioners in MVC.3561/2014 have been awarded a total compensation of Rs.11,29,200/- and the petitioners in MVC.3562/2014 have been awarded compensation of Rs.12,70,000/- together with interest at the rate of 9% per annum from the date of petition till the realization from the LRs of 1st respondent.
The LRs of respondent No.1 shall deposit the compensation amount within 2 months from the date of this order, in both petitions.
The compensation amount is apportioned amongst them, in both the cases, in the following manner:-
Petitioner No.1 - Mother/mother in law - 20% Petitioner No.2 - Son - 40% Petitioner No.3 - Son - 40% 28 MVC.3561/14 &3562/14 Out of the compensation amount so awarded in favour of petitioner No.1, in both petitions, entire amount with interest is ordered to be released in her favour.
As far as petitioners No.2 and 3 in both petitions are concerned, since they are minors, their portion of compensation amount is ordered to be deposited in their respective names until they attain majority in any of the nationalized or schedule bank of the choice of petitioner No.1. Interest accrued on deposit is ordered to be released to petitioner No.1 for the maintenance of minor children quarterly.
Petition as against the respondent No.2 to 4 are dismissed.
Advocate's fee is fixed at Rs.1,000/- in each case.
Original of the judgment shall be kept in MVC No.3561/2014 and a copy of the same be retained in the remaining case.
Draw an award accordingly, in both petitions.
(Dictated to the Stenographer, transcription thereof is revised, corrected and then pronounced by me in Open Court on 08.02.2017) (H.P.SANDESH) MEMBER, PRL.MACT ANNEXURES Witnesses examined on behalf of the petitioners:
P.W.1: Kempamma., Witnesses examined on behalf of the respondents :
R.W.1: Jagadeesh Kumar
29 MVC.3561/14 &3562/14
R.W.2: Krishna Sheernalli
R.W.3: Shyamsundar
Documents marked on behalf of the petitioners:
Ex.P-1 : FIR Ex.P-2 : Spot mahazar Ex.P-3 : Sketch Ex.P-4 : IMV report Ex.P-5 : Inquest of my son Ex.P-6 : PM report of my son Ex.P-7 : Inquest of my daughter-in-law Ex.P-8 : PM report of my daughter-in-law Ex.P.9 Charge sheet Ex.P.10 Obituary card Ex.P.11 Notarised copy of ration card (original compared) Ex.P.12 Lab report of my daughter-in-law Ex.P.13 Referral letter Ex.P.14 Medical bills ( 9 in nos.) for Rs. 7,560/- Ex.P.15 7 Prescriptions
Documents marked on behalf of the respondents:
Ex.R.1: B Register Extract
Ex.R.2: Driving Licence Extract
Ex.R.3: Endorsement issued by the RTO
Ex.R.4: Letter issued by Corporation Bank
Ex.R.5: Original Policy Along with Card
Ex.R.6: Policy Copy
Ex.R.7: Endorsement
Ex.R.8: Bounced Cheque
Ex.R.9: Bank Memo
ExR.10: Office copy of letter addressed to owner of the
car
Ex.R.11: Postal acknowledgment
Ex.R.12: Office copy of the letter addressed to RTO
Ex.R.13: Account Statement of M/s.Vinayaka Transport
(H.P.SANDESH)
Member, Prl. M.A.C.T. Bangalore