Bangalore District Court
Smt.Thara.S vs Sri.Siddappa Odeyar on 29 January, 2021
SCCH - 11 1 MVC.No.184/2019
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
BANGALORE. (SCCH11)
DATED THIS 29th DAY OF JANUARY, 2021
PRESENT: SMT. B.S. RAYANNAWAR, B.A., L.L.B.
I ADDL.SMALL CAUSES JUDGE & MACT
M.V.C No.184/2019
PETITIONERS: 1. Smt.Thara.S.,
W/o.Late Vijaya Kumar,
Aged about 23 years.
2. Smt.Parvathamma,
W/o.Marilingaiah,
Aged about 44 years.
3. Sri.Marilingaiah,
S/o.Late Kunnaiah,
Aged about 45 years.
All are resident of:
# 245/3, C.A.Kere Hobli,
Bharathinagar, Madduru Taluk,
Mandya District.
Now the 1st Petr is residing at
Channasandra Layout,
Uttarahalli Hobli, RR Nagar,
Bangalore560 098.
(Sri.K.T.M Advocate)
SCCH - 11 2 MVC.No.184/2019
VS
RESPONDENTS: 1. Sri.Siddappa Odeyar,
S/o.Mahadevappa Odeyar,
Thalagavadi Village,
Kiragaval Post,
Malavalli Taluk,
Mandya District.
(Owner of TATA Sumo No.KA09N8184.)
(Exparte)
2. The New India Assurance Co., Ltd.,
Regional Office, No.9/2, 2nd floor,
Mahalakshmi Chambers,
M.G.Road, Bangalore01.
(Policy No.67101031180200000620
Valid from 22.05.2018 to 21.05.2019.)
(Sri.S.M Advocate)
JUDGMENT
This petition is filed by the petitioners under Section 166 of M.V. Act against the respondents claiming compensation of Rs.25,00,000/ for the death of the husband of petitioner No.1, son of petitioner No.2 & 3 in the accident that occurred on 16.09.2018.
SCCH - 11 3 MVC.No.184/2019
2) The brief facts of the petitioner case as averred in the petition are as under:
That on 16.09.2018 at about 6.00 p.m., while the deceased was riding his motorcycle bearing Reg.No.KA11EH200 towards Maddur on extreme left side of Maddur - Mallavalli Main Road, near Doddarasinakere village gate, Maddur Taluk, Mandya District. At that time, a TATA Sumo bearing Reg.No.KA09N8184 driven by its driver in a rash and negligent manner so as to endanger to human life came at a high speed in the opposite direction from maddur side to his extreme right side of the said road and dashed against the said motor cycle. Due to the impact, the deceased fell down sustaining grievous injuries all over the body. Immediately, he was shifted to Government Hospital, KM Doddi where the duty doctor declared brought dead. Later on next day, the duty doctor conducted postmortem on the dead body of the deceased and handed over the body to the petitioners. The petitioners SCCH - 11 4 MVC.No.184/2019 carried the dead body to their native place by hiring an ambulance by paying a sum of Rs.5,000/ and performed his last rites, which incurred them a sum of Rs.50,000/.
The deceased Vijaya Kumar was aged about 26 years at the time of accident. He was working as a mason under different employers and earning of Rs.15,000/ per month. He used to contribute the entire earnings for the maintenance of the petitioners. He had a bright future prospects and he would have earned more than Rs.15,000/ per month in future if he was alive today. As a result of the tragic death of the deceased, the petitioners are put to great shock, untold mental agony and great financial loss.
The K.M.Doddi Police have registered a case in CR.No.263/2018, U/s.279, 337, 304(A) of IPC against the driver of the said Tata Sumo bearing Reg.No.KA09N8184. At the time of accident, the first respondent was R.C.Owner and SCCH - 11 5 MVC.No.184/2019 second respondent was insurer of TATA Sumo bearing Regn.No.KA09N8184. Hence, both respondents are jointly and severally liable to pay the compensation to the petitioners.
Therefore, they prayed for allowing the petition.
3) Inspite of service of summons, Respondent No.1 did not appear before the court hence first respondent placed exparte.
Respondent No.2 have appeared through their advocate and contested the claim of the petitioner by filing respective objection statement wherein, they denied the allegations made in the petitions as false and frivolous. They have further disputed the manner of the accident, age of the deceased and quantum of the compensation claimed under different heads. They have further contended that, the alleged accident occurred not due to the negligent act of the offending vehicle.
2nd respondent had admitted the issuance of policy in favor of 1st respondent in respect of Car bearing No.KA09N8184 SCCH - 11 6 MVC.No.184/2019 vide Policy No.67101031180200000620 valid from 22.05.2018 to 21.05.2019 and the liability if any is subject to the terms and conditions of the policy. Further contended that the owner of the vehicle i.e., the 1st respondent has not submitted the claim form and other documents like RC, DL, FC, permit and route map etc., for verification.
Further contended that, the husband of the petitioner No.1 i.e., driver of the motorcycle bearing No.KA11EH0200 was not holding valid and effective driving license to drive the same and the rider of the motor cycle was not wearing ISI helmet at the time of accident, as such the alleged accident occurred not due to the negligent act of the deceased himself, hence, it is a violation motor vehicles act, hence, this respondent is not liable to pay any compensation and petition against this respondent is liable to be dismissed. The amount claimed by the petitioners is highly exaggerated, excessive, speculative, fanciful, unreasonable and has no legal basis. Further contended that SCCH - 11 7 MVC.No.184/2019 the alleged accident occurred due to negligent act of deceased himself who was riding the motorcycle along with two other pillion riders, who was not in position to ride the motorcycle, rode his motor cycle in rash and negligent manner in the middle of the road to exceeding seating capacity has lost control over his motor cycle and caused the accident and it is head on collusion and deceased was not holding the valid license and insurance policy as on the date of the accident as such alleged accident occurred due to the negligent act of deceased himself and not due to the negligent of driver of the insured vehicle and on this ground alone the petition has to be dismissed against this respondent.
Further contended that on the date of the accident, the car bearing No.KA09N8184 was being driven in a reasonable speed and careful manner and there was no rashness or negligence on the part of the driver of said vehicle. The accident occurred due to the negligence on the part of the deceased SCCH - 11 8 MVC.No.184/2019 himself who was riding the motorcycle along with two other pillion riders, who was not in a position to ride the motor cycle, rode his motor cycle in rash and negligent manner in the middle of the road, due to exceeding seating capacity has lost control over his motor cycle and caused the accident. The said accident occurred due to the sole negligence on the part of the rider of the motor cycle. Hence, they prayed for dismissal of the petition.
4) On the basis of the above rival pleadings, the following issues have been framed:
1. Whether the petitioner proves that, the accident occurred due to rash and negligent act of driver of TATA Sumo bearing registration number: KA09N8184 and in the said accident petitioner sustained injuries?
2. Whether the petitioners are entitled for compensation ? If so, what is the quantum?
From whom ?
3. What order or award?
5) To prove the petitioners case, petitioner No.2/mother
SCCH - 11 9 MVC.No.184/2019
of deceased Sri.Vijaya Kumar filed affidavit in lieu of
examination in chief and examined as PW.1. Besides her evidence, she has produced 12 documents and got them marked as Ex.P.1 to 12 and Petitioner No.1/wife of deceased examined as PW.2 and got marked documents at Ex.P.13 to 16. One eyewitness got examined himself as PW.3 and no documents have been marked on his behalf and closed their side evidence. The Legal Assistant with 2 nd respondent company got examined as RW.1 and got marked 4 documents at Ex.R.1 to R.6 and closed his side evidence.
6) Heard the arguments of learned counsel appearing for the Petitioners and respondents. The learned counsel for petitioner has furnished the Judgment in MFA.No.1935/2018, MFA.No.25099/2013,MFA.No.31807/2011, MFA.No.2345/2015 and MFA.No.3477/2017. Learned counsel for second respondent relied on Judgment in MFA No.10860/2007 and MFA 2255/2014.
SCCH - 11 10 MVC.No.184/2019
7) My answers to the above said issues are as follows:
Issue No.1 In the Affirmative;
Issue No.2 Partly Affirmative;
Issue No.3 As per final order, for the following :
:REASONS:
8) ISSUE No.1: Petitioners assert that due to rash and
negligent act of the driver of TATA SUMO bearing Reg.No.KA09 N8184 , deceased Vijayakumar died. In order to prove these aspects, petitioner No.2 examined herself as PW.1 and reiterated petition averments in her examinationinchief affidavit. In addition that, she has produced Ex.P.1 true copy of FIR, Ex.P.2 is complaint, Ex.P.3 is crime details form, Ex.P.4 Rough sketch prepared by police, Ex.P.5 is IMV Report, Ex.P.6 is PM Report, Ex.P.7 is Inquest report and charge sheet as per Ex.P.1 to 7 & 16. Father of deceased by name Marilingaiah has lodged the complaint as per Ex.P.2 on the basis of which K.M.Doddi Police have registered case in crime No.263/2018.
SCCH - 11 11 MVC.No.184/2019 Petitioners have produced PM Report at Ex.P.6 and Ex.P.7 Inquest report. All these documents shows that there is an accident in which the husband of first petitioner died. Complaint lodged by the complainant has undergone the test of investigation and investigating officer has come to the conclusion that, the accident occurred due to rash and negligent driving of the offending vehicle owned by the First respondent. In Ex.P.3 crime details and spot mahazar the details of manner of accident have been stated.
9) Ex.P.2 crime details and spot mahazar wherein it is stated that, road on which accident took place is 40 feet wide, 4 feet distance from footpath. There is leakage of water pipe and water flowing in the middle of the road, hence both side of vehicles were passing from right side of the road, at that time the driver of TATA SUMO came from opposite side and dashed to motorcycle, thereby motorcyclist fell down and sustained grievous injuries and Vijaykumar died. No evidence is led by the SCCH - 11 12 MVC.No.184/2019 respondent to disprove this contention. Second respondent company is examined Assistant Manager as RW.1. she has reiterated the contents of written statement. However, she denied that accident occurred due to rash and negligent driving of the driver of offending vehicle. Further it is the contention of second respondent that, as per the wound certificate and MLC of the other injured person who are pillion rider along with deceased person at the time of accident, the deceased and two pillion riders who were under the influence of the alcohol and not in position to ride or sit in the motor cycle at the time of accident and rode his motor cycle in rash and negligent manner in the middle of the road, due to influence of alcohol the deceased has lost control over motorcycle and caused the accident. The said accident occurred due to the rash and negligence on the part of the deceased that is rider of the motor cycle which is selfaccident and in the wound certificate/MLC of the pillion riders it is clearly mentioned that, the breath smell of SCCH - 11 13 MVC.No.184/2019 alcohol and as such the claim petition to be dismissed. But no where in medical records it is mentioned that the deceased was under the influence of alcohol. Only on the ground that in wound certificate of pillion riders it is mentioned that, the breath of smell, without any document only on presumption cannot believe that the deceased was also under the influence of alcohol. No where in police documents or in medical documents of deceased no where it is mentioned that, at the time of accident deceased was under the influence of alcohol,. Hence the contention of second respondent not believable. Secondly it is not in dispute that the deceased was traveling in a motor cycle with two pillion riders. Learned counsel for second respondent relied on Judgment in M.F.A No.10860/2007(MV)
- where in lordships held that, The said action on the part of the claimants itself is in violation of Section 128 of the Motor Vehicles Act, which prescribes that no driver of a two wheeler motor cycle shall carry more than one person in addition to SCCH - 11 14 MVC.No.184/2019 himself on the motor cycle. Also relied on judgment in M.F.A No.2255/2014(MV) lordships held that, the rider of the motorbike also contributed for the accident carrying two pillion riders, though the motorbike is built for riding only two persons. Hence contributory negligence taken. In the present case charge sheet filed by the police in the said crime number against the driver of the TATA SUMO. Moreover, accident in question has undergone test of investigation by the I.O who ultimately came to the conclusion that accident in question had occurred due to rash and negligent driving of the driver of said TATA SUMO. In addenda of this, in a claim for compensation under section 166 of Motor Vehicles Act, 1988, the claimant is to prove the incident only on preponderance of probabilities and the standard of proof beyond reasonable doubt is not required as held by Hon'ble Supreme Court in the decision reported in 2011 SAR (CIVIL) 319 (Kusum and others V/s Satbir and others). Hence this tribunal is of the opinion that the accident SCCH - 11 15 MVC.No.184/2019 occurred due to negligence of driver of TATA SUMO. Some part of negligence on the part of deceased that, he ridden his motor cycle with two pillion riders. The said action on the part of the deceased itself is in violation of section 128 of the Motor Vehicles. Hence in view of the above discussion Issue No.1 answered Partly in the Affirmative.
10) ISSUE No.2: It is proved that accident occurred due to rash and negligent driving of the driver of the offending vehicle hence the petitioners are entitled for compensation. According to the petitioners, they are the legal heirs and dependents of the deceased. Petitioners have produced Aadhaar cards at Ex.P.9 to 12 and Geneological Tree at Ex.P.15 which shows that they are the legal heirs of deceased. Second respondent disputed the marital relationship of first petitioner and deceased, but no contra evidence produced by them.
11) Due to the untimely death of the deceased, they lost SCCH - 11 16 MVC.No.184/2019 their dependency. It has come in the evidence of PW.1 that, the deceased was a skilled Mason worker expert in doing corner design work of a building and he was earning a sum of Rs.15,000/ per month. To prove the avocation and income of the deceased the petitioners have not produced any documents. Hence, considering the date of accident, to assess the loss of dependency this court is taken income of the deceased at Rs.9,000/ per month. As per Aadhaar card of deceased at Ex.P.9 the age of the deceased was 26 years at the time of accident . Hence, the age of deceased is considered as 26 years to assess loss of dependency, the proper multiplier would be 17 as per Sarla Verma Case. Petitioner No.1 lost her caring husband, Petitioner No.2 & 3 have lost his son at their old age. Under the circumstances as per the Decision reported in Supreme court of India in Special Leave Petition (Civil) No.25590 of 2014, (National Insurance Company Limited V/s Pranay Sethi and Others), it is just and reasonable to award SCCH - 11 17 MVC.No.184/2019 Rs.15,000/, Rs.40,000/ and Rs.15,000/ under the heads of loss of estate, loss of consortium and funeral expenses respectively.
12) Income of the deceased is already considered as Rs.9,000/ per month. If 40% is added towards future prospectus to the income of the deceased it would comes at Rs.12,600/ (Rs.9,000/ + Rs.3,600/). The Petitioner No.1 to 3 are the dependants of the deceased Vijaya Kumar. Hence, if 1/3rd is deducted out of Rs.12,600/ then it would comes to Rs.8,400/ per month (Rs.12,600/ - Rs.4,200/). Since the deceased was aged about 26 years, the proper multiplier would be 17 as per the ruling reported in: 2009 ACJ 1298 Sarala Varma Vs. Delhi Transport Corporation. So, the loss of dependency would be Rs.8,400/ x 12 X 17 = Rs.17,13,600/.
13) Hence, the petitioners are entitled for total compensation under different heads as below: SCCH - 11 18 MVC.No.184/2019 1 For loss of Estate Rs. 15,000/ 2 For loss of Consortium Rs. 40,000/ 3 For funeral Expenses Rs. 15,000/ 4 For Loss of Dependency Rs.17,13,600/ Total Rs.17,83,600/
14) While discussing above, I have already come to the conclusion that, accident occurred due to the rash and negligent driving of the offending Car by its driver which belongs to the respondent No.1 and Respondent No.2 being the insurer and some part of contributory negligence of part of deceased. Hence, in view of above discussions respondent No.1 and 2 are jointly and severally liable to pay compensation of Rs.16,05,240/, in the present case deceased ridden his motorcycle along with two pillion riders where the motor cycle is for two persons, there are three persons on the motor cycle. Hence, the deceased violated Sec.128 of M.V.Act violated the traffic rules. Hence, 10% contributory negligence taken on the side of deceased. Hence, the petitioners are entitled for the SCCH - 11 19 MVC.No.184/2019 compensation of Rs.16,05,240/ to the petitioners along with interest at the rate of 9% per annum from the date of petition till its realization. So, I answered issue No.3 in partly affirmative.
15) ISSUE No.4: In view of the findings given on the above said issues and reasons thereon, I proceed to pass the following:
ORDER Petition filed by the petitioners u/s 166 of Motor Vehicles Act is hereby partly allowed with costs.
Accordingly, a sum of Rs.16,05,240/ is awarded to the petitioners as compensation with interest at the rate of 9% p.a from the date of petition till the date of realization.
Respondent No.1 and 2 are jointly and severally liable to pay the compensation to the petitioners.
SCCH - 11 20 MVC.No.184/2019
The Respondent No.2 shall deposit the
compensation amount within 30 days from the date of this order.
In the event of deposit of the said compensation amount, Rs.8,02,620/ shall be apportioned in favour of petitioner No.1, Rs.4,01,310/ each shall be apportioned in favour of petitioner No.2 and 3.
Out of compensation amount apportioned in favour of petitioner No.1, 25% shall be deposited in the name of petitioner No.1 for a period of 5 years in any nationalized bank or scheduled bank and the remaining 75% shall be released in favour of petitioner No.1 through epayment on her proper identification.
Out of compensation amount apportioned in favour of petitioner No.2 & 3, 25% shall be deposited in the name of petitioner No.2 & 3 for a period of 5 years in any nationalized bank or scheduled bank and the remaining 75% shall be released in favour of petitioner No.2 & 3 through e SCCH - 11 21 MVC.No.184/2019 payment on her proper identification.
Advocate fee is fixed at Rs.1,000/.
Office to draw award accordingly.
(Dictated to the stenographer directly over computer, corrected and pronounced by me in open court on this 29th day of January, 2021.) (B.S.RAYANNAWAR) I ADDL.SMALL CAUSES JUDGE & ACMM ANNEXURE WITNESSES EXAMINED FOR PETITIONERS:
PW.1 Smt.Parvathamma PW.2 Smt.Thara PW.3 Sri.Sunil.K.T DOCUMENTS MARKED FOR PETITIONERS: Ex.P1 FIR Ex.P2 Complaint Ex.P3 Crime Details form Ex.P4 Sketch Ex.P5 IMV Report Ex.P6 PM Report Ex.P7 Inquest Report Ex.P8 Notarized copy of DL of deceased son Ex.P9 Notarized copy of Aadhaar card of deceased son Ex.P10 Notarized copy of Aadhaar card of 1st petitioner Ex.P11 Notarized copy of Aadhaar card of 2nd petitioner SCCH - 11 22 MVC.No.184/2019 Ex.P12 Notarized copy of Aadhaar card of 3rd petitioner Ex.P13 Marriage Invitation card Ex.P14 Two Photos with CD Ex.P15 Genealogical tree Ex.P16 Charge sheet
WITNESSES EXAMINED FOR RESPONDENTS:
RW.1 Smt.Radhika.N
DOCUMENTS MARKED FOR RESPONDENTS:
Ex.R1 Authorization letter
Ex.R2 Policy copy with terms and conditions
Ex.R3 Letter sent to insured
Ex.R4 Reply
Ex.R5 Certified copy of wound certificate of Shivaraju.M.D
Ex.R6 Certified copy of wound certificate of Sunil
I ADDL. SCJ. & MACT.
SCCH - 11 23 MVC.No.184/2019
(Judgment pronounced in open court.) ORDER Petition filed by the petitioners u/s 166 of Motor Vehicles Act is hereby partly allowed with costs.
Accordingly, a sum of Rs.16,05,240/ is awarded to the petitioners as compensation with interest at the rate of 9% p.a from the date of petition till the date of realization.
Respondent No.1 and 2 are jointly and severally liable to pay the compensation to the petitioners.
The Respondent No.2 shall deposit the compensation amount within 30 days from the date of this order.
In the event of deposit of the said compensation amount, Rs.8,02,620/ shall be apportioned in favour of petitioner No.1, Rs.4,01,310/ each shall be apportioned in favour of petitioner No.2 and 3.
SCCH - 11 24 MVC.No.184/2019 Out of compensation amount apportioned in favour of petitioner No.1, 25% shall be deposited in the name of petitioner No.1 for a period of 5 years in any nationalized bank or scheduled bank and the remaining 75% shall be released in favour of petitioner No.1 through epayment on her proper identification.
Out of compensation amount apportioned in favour of petitioner No.2 & 3, 25% shall be deposited in the name of petitioner No.2 & 3 for a period of 5 years in any nationalized bank or scheduled bank and the remaining 75% shall be released in favour of petitioner No.2 & 3 through e payment on her proper identification.
Advocate fee is fixed at Rs.1,000/.
Office to draw award accordingly.
I ADDL.SMALL CAUSES JUDGE & ACMM
SCCH - 11 25 MVC.No.184/2019
AWARD
SCCH NO.11
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA : BANGALORE CITY M.V.C No.184/2019 PETITIONERS: 1. Smt.Thara.S., W/o.Late Vijaya Kumar, Aged about 23 years.
2. Smt.Parvathamma, W/o.Marilingaiah, Aged about 44 years.
3. Sri.Marilingaiah, S/o.Late Kunnaiah, Aged about 45 years.
All are resident of:
# 245/3, C.A.Kere Hobli, Bharathinagar, Madduru Taluk, Mandya District.
Now the 1st Petr is residing at Channasandra Layout, Uttarahalli Hobli, RR Nagar, Bangalore560 098.
(Sri.K.T.M Advocate) VS RESPONDENTS: 1. Sri.Siddappa Odeyar, SCCH - 11 26 MVC.No.184/2019 S/o.Mahadevappa Odeyar, Thalagavadi Village, Kiragaval Post, Malavalli Taluk, Mandya District.
(Owner of TATA Sumo No.KA09N8184.) (Exparte)
2. The New India Assurance Co., Ltd., Regional Office, No.9/2, 2nd floor, Mahalakshmi Chambers, M.G.Road, Bangalore01.
(Policy No.67101031180200000620 Valid from 22.05.2018 to 21.05.2019.) (Sri.S.M Advocate) WHEREAS, this petition filed on by the petitioner/s above named U/sec.110A/166 of the M.V.C. Act, praying for the compensation of Rs. (Rupees ) for the injuries sustained by the petitioner/Death of in a Motor Accident by Vehicle No. .
WHEREAS, this claim petition coming up before Smt.B.S.Rayannawar, I Addl.Judge, Member, Bangalore, in the presence of Sri/Smt. Advocate for petitioner/s and of Sri/Smt. SCCH - 11 27 MVC.No.184/2019 Advocate for respondent.
ORDER Petition filed by the petitioners u/s 166 of Motor Vehicles Act is hereby partly allowed with costs.
Accordingly, a sum of Rs.16,05,240/ is awarded to the petitioners as compensation with interest at the rate of 9% p.a from the date of petition till the date of realization.
Respondent No.1 and 2 are jointly and severally liable to pay the compensation to the petitioners.
The Respondent No.2 shall deposit the compensation amount within 30 days from the date of this order.
In the event of deposit of the said compensation amount, Rs.8,02,620/ shall be apportioned in favour of petitioner No.1, Rs.4,01,310/ each shall be apportioned in favour of petitioner No.2 and 3.
SCCH - 11 28 MVC.No.184/2019 Out of compensation amount apportioned in favour of petitioner No.1, 25% shall be deposited in the name of petitioner No.1 for a period of 5 years in any nationalized bank or scheduled bank and the remaining 75% shall be released in favour of petitioner No.1 through epayment on her proper identification.
Out of compensation amount apportioned in favour of petitioner No.2 & 3, 25% shall be deposited in the name of petitioner No.2 & 3 for a period of 5 years in any nationalized bank or scheduled bank and the remaining 75% shall be released in favour of petitioner No.2 & 3 through e payment on her proper identification.
Advocate fee is fixed at Rs.1,000/.
Given under my hand and seal of the Court this 29 th day of January 2021.
MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, METROPOLITAN AREA:
BANGALORE.
SCCH - 11 29 MVC.No.184/2019
By the
__________________________________ Petitioner/s Respondent No.1 No.2 __________________________________ Court fee paid on petition 1000 Court fee paid on Powers 0100 Court fee paid on I.A. Process Pleaders Fee _____________________________ Total Rs.
____________________________ Decree Drafted Scrutinised by MEMBER, M.A.C.T. METROPOLITAN: BANGALORE Decree Clerk SHERISTEDAR